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United States v. Bishop

United States District Court, W.D. New York

January 14, 2020

UNITED STATES OF AMERICA,
v.
ANTHONY BISHOP, Defendant.

          DECISION AND ORDER

          HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT COURT JUDGE.

         The defendant, Anthony Bishop, has moved pursuant to Fed. R. Crim. P. 33 to vacate a jury verdict finding him guilty of participating in a multi-kilogram cocaine distribution conspiracy in violation of 21 U.S.C. § 846. Defendant Bishop seeks a new trial on the ground that his trial counsel was constitutionally ineffective in failing to negotiate a plea agreement to a lesser term of imprisonment than the defendant now faces. For the reasons that follow, the Court denies the defendant's motion.

         BACKGROUND

         Defendant Bishop was found guilty by a jury of conspiracy to possess with intent to distribute and to distribute five kilograms or more of a mixture or substance containing cocaine in violation of 21 U.S.C. § 846. The trial evidence showed that, during an approximate nine-month period from July 2011, through March 2012, the defendant led a conspiracy among individuals that received and distributed approximately 40 kilograms of cocaine a month in the Buffalo, New York area. The defendant does not claim he is innocent of the conspiracy charge of which he stands convicted, however.

         The United States entered pretrial notice pursuant to 21 U.S.C. § 851 approximately a year before defendant Bishop's trial indicating that increased punishment may apply to the defendant because he has a prior criminal conviction for a serious drug felony. As a result, the defendant may now face a mandatory-minimum term of imprisonment of 20 years and a maximum of life imprisonment. It appears that he faces a range of imprisonment under advisory sentencing guidelines of 360 months to life. Defendant Bishop's relationship with his trial counsel deteriorated after the guilty verdict, and the Court assigned different counsel to represent the defendant. The defendant's replacement counsel was relieved due to a conflict of interest a few months later, and the Court assigned his present counsel.

         After numerous adjournments, and more than three years after the guilty verdict, defendant Bishop moved pursuant to Rule 33 of the Federal Rules of Criminal Procedure for a new trial on the ground that his original counsel had been constitutionally ineffective by not conveying to him a plea offer from the United States. Specifically, the defendant alleges that a plea offer providing for 12 years imprisonment was not conveyed to him by his trial counsel, and that he would have accepted the offer and entered a guilty plea if he had been informed of the offer. Dkt. No. 284, ¶ 5.

         The United States contends to the contrary that no formal plea offer was ever extended to defendant Bishop. The United States also contends that any offer that the United States would have extended to the defendant would have required him to accept a sentence of at least 20 years imprisonment because of the defendant's central role in the conspiracy, and that the claim the defendant was given a 12-year offer is therefore not credible. The United States also contends the defendant's motion is untimely.

         DISCUSSION

         Rule 33(a) of the Federal Rules of Criminal Procedure provides, in part, that “[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” In general, the Rule “confers broad discretion upon a trial court to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.” United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). But “[t]o grant [a Rule 33] motion, ‘[t]here must be a real concern that an innocent person may have been convicted.' ” United States v. Aguiar, 737 F.3d 251, 264 (2d Cir. 2013) (quoting United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 1997) (alteration omitted).

         A motion for a new trial ordinarily must be filed within 14 days of the verdict. Fed. R. Crim. P. 33(b)(2). The 14-day time period can be extended pursuant to Rule 45 of the Federal Rules of Criminal Procedure, even after the 14 days have run, on the ground of excusable neglect. Fed. R. Crim. P. 45(b)(1); see e.g., United States v. Velazquez, 197 F.Supp.3d 481, 508 (E.D.N.Y. 2016).

         If a Rule 33 motion for a new trial is based upon newly-discovered evidence, it can be filed within three years of the guilty verdict. Fed. R. Crim. P. 33(b)(2). Nevertheless, such a motion can be granted in “only the most extraordinary circumstances.” United States v. Imran, 964 F.2d 1313, 1318 (2d Cir. 1992). and the burden that a defendant must carry is to show that:

(1) the evidence be newly discovered after trial; (2) facts are alleged from which the court can infer due diligence on the part of the movant to obtain the evidence; (3) the evidence is material; (4) the evidence is not merely cumulative or impeaching; and (5) the evidence would likely result in an acquittal.

United States v. Owen, 500 F.3d 83, 88 (2d Cir. 2007). A showing of due diligence is necessary even if a defendant seeks a new trial based upon newly-discovered evidence. See e.g., United States v. Brown, 623 F.3d 104, 113, n.5 (2d Cir. 2010).

         Defendant Bishop's Rule 33 ...


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