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United States v. Wesley

United States District Court, E.D. Michigan, Southern Division

June 15, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
LEE EARNEST WESLEY, Defendant.

          OPINION AND ORDER DENYING DEFENDANT'S MOTIONS FOR A NEW TRIAL (DKT. 87) AND TO STRIKE THE GOVERNMENT'S RESPONSE (DKT. 91)

          MARK A. GOLDSMITH United States District Judge.

         Following a seven-day jury trial, Defendant Lee Earnest Wesley was found guilty on November 4, 2016 of one count of conspiracy to possess with the intent to distribute controlled substances, one count of possession with the intent to distribute heroin, and one count of possession with the intent to distribute methamphetamine. 11/4/2016 Jury Verdict (Dkt. 70).

         This matter is before the Court on Wesley's motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 (Dkt. 87), in which he claims his Sixth Amendment right to an impartial jury was violated. Specifically, Wesley contends that, “as a result of the jury selection system used” in this district, the composition of the 42-person jury venire, which included only two African Americans, did not constitute a fair cross section of the community due to the underrepresentation of African Americans. Def. Mot. for New Trial at 4.[1] Wesley also appears to argue that his rights under the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq., were violated because of this underrepresentation.[2] The Government filed a response to Wesley's motion (Dkt. 90), which Wesley seeks to strike as untimely (Dkt. 91). For the reasons stated below, the Court denies both motions.[3]

         I. STANDARD OF DECISION

         Federal Rule of Criminal Procedure 33 governs a criminal defendant's motion for a new trial, which permits a district court to “vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). “The rule does not define interest of justice and the courts have had little success in trying to generalize its meaning.” United States v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010). Nevertheless, “it is widely agreed that Rule 33's ‘interest of justice' standard allows the grant of a new trial where substantial legal error has occurred, ” including “reversible error or violation of the defendant's substantial rights.” Id. at 373-374.

         II. ANALYSIS

         A. Timeliness of Wesley's Motion for a New Trial Under Federal Rule of Criminal Procedure 33

         The Government contends that Wesley's motion is untimely under Rule 33, see Pl. Resp. at 5 (Dkt. 90), which requires that the motion must be filed within 14 days of the verdict, see Fed. R. Crim. P. 33(b)(2), unless the motion is based on “newly discovered evidence, ” in which case the motion must be filed within three years of the verdict, Fed. R. Crim. P. 33(b)(1). In the event a party has failed to act within a specified time period, Federal Rule of Criminal Procedure 45 provides that the Court may, for good cause, grant a party's motion to extend the time to file “if the party failed to act because of excusable neglect.” Fed. R. Crim. P. 45(b)(1)(B).

         In this case, the jury returned a verdict of guilty on November 4, 2016. Wesley does not claim that he has discovered any new evidence warranting a new trial. Rather, Wesley acknowledges that the grounds for his motion were known to him during jury selection - namely, Wesley's challenge to the district court's jury-selection system based on the racial composition of the jury venire. See Def. Mot. for New Trial at 1 (“During jury selection the defense objected that the jury venire did not constitute a fair-cross section of the population in the Eastern District of Michigan, Southern Division.”); see also 10/27/2016 Trial Tr. at 4 (Dkt. 88) (“I wish to object to the jury venire because of two reasons. One, it does not reflect the racial makeup of the Eastern District of Michigan and two, there is not one person from Detroit. . . . [I]t's our position that we need a jury venire that more correctly and accurately reflects the racial and geographic nature of the residents of the Eastern District of Michigan.”). Thus, under Rule 33(b)(2), Wesley had until November 18, 2016 to file his motion for a new trial. He did not do so. Rather, Wesley waited until January 10, 2017 to file his motion for a new trial - over two months after the verdict was rendered.

         Wesley also did not file a motion for an extension of time to file under Rule 45. Wesley's numerous briefs filed in relation to his motion for a new trial do not even hint at any sort of excusable neglect. Without any explanation for his neglect or why it should be excused in this case, the Court denies Wesley's motion for a new trial because it was not filed within 14 days after the verdict, and Wesley has not attempted to establish the requisite good cause for the Court to grant an extension of time.

         Wesley's reliance on United States v. Arny, 831 F.3d 725 (6th Cir. 2016), for the proposition that the Court has the discretion to decide the motion despite its untimeliness, see Def. Reply at 10 (Dkt. 92), does not alter the Court's conclusion. As Wesley correctly points out, the district court in Arny granted the defendant's motion for a new trial based on his trial counsel's constitutionally ineffective assistance. That motion was filed approximately three months after the verdict, but before sentencing, after the defendant had secured new counsel. Arny, 831 F.3d at 728. However, the Sixth Circuit noted that the lower court granted the defendant leave to file the late motion under Rule 45(b), having found the requisite “excusable neglect for the delay in that Arny was still represented by his trial counsel during the 14-day period, ” and the Government did not appeal that finding. Id. at 730 n.3. As noted above, Wesley did not attempt to take advantage of Rule 45, and, even excusing Wesley's failure to invoke Rule 45 by name, there is nothing in the current record that could lead this Court to conclude that Wesley's untimeliness was the result of excusable neglect.

         Wesley also cites United States v. Myint, 455 F. App'x 596 (6th Cir. 2012) (per curiam), as an example of a district court denying a motion for a new trial based on its untimeliness and the Sixth Circuit deciding the merits of the issues on appeal. See Def. Reply at 11. In Myint, the Sixth Circuit noted that the lower court denied the motion because it was filed after the 14-day period of Rule 33. 455 F. App'x at 601 n.7. The Sixth Circuit further noted that the defendant did “not seriously argue that any exception to the fourteen-day period applies.” Id. (citing Fed. R. Crim. P. 45(b)(1); United States v. Owen, 559 F.3d 82, 83 (2d Cir. 2009)). There is nothing in Myint to suggest that the lower court erred in denying the defendant's motion for its untimeliness.[4]

         For these reasons alone, Wesley's motion for a new trial is denied. Nevertheless, even considering the merits of his motion, the Court concludes that it should be denied.

         B. Timeliness of Wesley's Challenge to the Jury Selection Process or Composition to the Jury Venire Under Federal Rule of Criminal Procedure 12

         According to the Government, constitutional challenges to a jury's composition under the Sixth Amendment are governed by Federal Rule of Criminal Procedure 12, which requires that “challenges to a petit jury must be raised before the start of trial.” Pl. Resp. at 3 (citing Davis v. United States, 411 U.S. 233, 236-237 (1973); United States v. Boulding, 412 F. App'x 798, 802 (6th Cir. 2011)). The Government states further that a motion like this one “must be raised before the deadline for pretrial motions.” Pl. Resp. at 3. Because Wesley did not file a motion addressing the “issue of the jury composition or the jury selection process for the petit jury” by the August 1, 2016 deadline for pretrial motions, the Government argues that the present motion is untimely. Id. Although the Court may consider an untimely motion under Rule 12(c)(3) for good cause, the Government argues that Wesley did not attempt to establish good cause for not raising this claim before trial. Id. (citing Bates v. United States, 473 F. App'x 446, 448 (6th Cir. 2012); Boulding, 412 F. App'x at 802).

         Wesley contends that his motion does not raise any of the claims covered under Rule 12(b)(3). Def. Reply at 2. Even if Rule 12 did require challenges to a jury venire to be made before trial, Wesley argues that there is good cause under Rule 12(c)(3) for the Court to still consider his motion, because counsel did not “have any idea that the administrative authorities of the Eastern District of Michigan have utterly failed in their responsibility to use fair procedures to ensure that jury venires are fairly selected” until counsel was “provided a list of the prospective jurors” and the “jury venire was called to the courtroom.” Id. at 3. Wesley further argues that the basis for his motion was not readily available before trial to satisfy Rule 12's pretrial filing requirement. Id. at 4. Nevertheless, Wesley claims that his motion was made “pretrial” when his counsel objected to the jury venire before the commencement of voir dire. Id. at 5.

         The Court sides with Wesley on this issue. Pursuant to Rule 12, an objection involving “an error in the grand-jury proceeding” must be raised before trial “if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits.” Fed. R. Crim. P. 12(b)(3)(A)(v). The Sixth Circuit has extended Rule 12's pretrial requirement to cover objections to a jury selection process or ...


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