United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT COURT
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.
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.
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.
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.
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.
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).
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).
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).
Bishop's Rule 33 ...