United States District Court, E.D. Michigan, Southern Division
ORDER (1) DENYING DEFENDANT'S MOTION FOR A NEW
TRIAL (ECF ## 144, 162) AND (2) DENYING DEFENDANT'S
VARIOUS MISCELLANEOUS REQUESTS FOR RELIEF
MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE.
March 9, 2016, a jury found Defendant Curtis Scott guilty of
aiding and abetting a carjacking, aiding and abetting the use
and/or carrying of a firearm during a crime of violence, and
making a false statement to a federal agent. Scott has now
filed a motion for new trial pursuant to Rule 33 of the
Federal Rules of Criminal Procedure. (See ECF ##
144, 162.) For the reasons explained below, the motion is
government's theory at trial was that Scott induced two
impressionable teenage boys, Roland Hubbard and Dexavior
Evans, to carjack a vehicle for him. The government contended
that Scott drove Hubbard and Evans to scene of the carjacking
and then led them away from the scene once they had stolen
the vehicle. The government argued that Scott wanted the
vehicle in question (a 2006 Mercury Grand Marquis) because
(1) Scott's own vehicle (a 1996 Mercury Grand Marquis)
was in poor shape and (2) Scott intended to replace parts on
his vehicle with parts from the carjacked vehicle. The
government also asserted that after the carjacking, Scott
lied to federal agents about whether he had a cellular
telephone that belonged to Hubbard. The government's
evidence included testimony from Evans directly implicating
Scott in the carjacking, a video recording of the carjacked
vehicle and a vehicle matching the description of a vehicle
owned by Scott entering the freeway shortly after the
carjacking, audio recordings of telephone conversations in
which Scott made incriminating statements, and evidence that
around the time of the carjacking, Scott's cellular
telephone was communicating with Hubbard's phone and was
in the vicinity of the carjacking.
who did not testify, presented an alibi defense to the
charges. Three witnesses testified in support of that
defense: Monico Hayes, Desmond Brooks, and Paijah McCloud.
They told the jury that on the evening of the carjacking,
Scott watched a movie with them during “family movie
night” and then went to sleep. Scott's defense also
included a vigorous cross-examination of Evans, the
government's most important witness. The jury ultimately
convicted Scott of the charges described above.
the trial, Scott expressed dissatisfaction with his appointed
trial counsel, Leroy Soles. He asked the Court to terminate
Soles' representation and to appoint substitute counsel
to assist with post-trial matters, including sentencing. The
Court granted that request and appointed attorney Patricia
Maceroni to handle these remaining post-trial matters and to
represent Scott on appeal.
February 17, 2017, Ms. Maceroni filed a motion for a new
trial on Mr. Scott's behalf. (See ECF #144.) In
that motion, Ms. Maceroni primarily argued that Mr. Scott was
deprived of the effective assistance of counsel when Mr.
Soles suggested that one of Mr. Scott's alibi witnesses,
Paijah McCloud, could potentially have been involved in the
carjacking. Ms. Maceroni also argued that Mr. Soles failed to
investigate other important matters related to Scott's
defense. Finally, she contended that Scott was entitled to a
new trial based on newly-discovered evidence - statements
from two individuals who claimed that Evans had recanted his
trial testimony implicating Scott in the carjacking.
Scott then sent the Court a letter complaining about Ms.
Maceroni's representation. The Court conducted a status
conference on March 9, 2017, to inquire into Mr. Scott's
complaints. Mr. Scott told the Court that Ms. Maceroni had
refused to raise in the new trial motion a number of issues
that Scott had asked her to raise. (See March 9,
2017 Status Conf. Tr. at 30-31, 35, ECF #202 at Pg. ID 3129-
30, 3134.) Scott was adamant that any motion for a new trial
should fully present his issues. (See id.)
this same status conference, Ms. Maceroni explained to the
Court that she had considered all of the issues that Scott
wished to raise, and had determined, in her professional
judgment, that the issues Scott identified lacked merit and
should not be raised. (See Id. at 5-8, Pg. ID
3104-07.) Ms. Maceroni further opined that a conflict had
arisen between herself and Mr. Scott and that, as a result,
she could not continue to represent him. The Court thus
permitted Ms. Maceroni to withdraw as counsel.
Court then offered to appoint yet another attorney for Scott.
(See Id. at 34-35, Pg. ID 3133-34.) Scott declined
that offer because he did not want to wait for a new attorney
to get up to speed on the case and because he was concerned
that a new attorney might decline to present the issues he
wished to raise. (See Id. at 35-36, Pg. ID 3134-35.)
Scott instead indicated that he wanted to represent himself.
(See id.) The Court advised Mr. Scott not to
represent himself, informed Scott of the dangers of
self-representation, and conducted a colloquy with Scott that
closely tracked the waiver of counsel colloquy set forth in
the Benchbook for the U.S. District Court Judges (4th ed.).
(See Id. at 38-43, Pg. ID 3137-42.) Scott then
waived his right to counsel and began representing himself.
(See Id. at 43, Pg. ID 3142.)
Court agreed to permit Mr. Scott to file a supplemental
motion for new trial raising the additional issues that he
wished to present to the Court. He did so on March 22, 2017.
(See ECF #162.)
government initially opposed Mr. Scott's request for a
new trial on the ground that Scott failed to file his motion
within fourteen days of his conviction, as Rule 33(b)(2) of
the Federal Rules of Criminal Procedure requires.
(See ECF ## 148, 167.) However, the government later
asked the Court “to accept Scott's untimely”
filings. (ECF #169.) The government then responded on the
merits to the arguments presented by Ms. Maceroni and by
Scott in his supplemental motion. (See ECF #171.)
Court next reviewed the parties' submissions and
determined that it needed to develop a factual record in
order to resolve some (but not all) of the issues raised by
Ms. Maceroni and Scott. (See ECF #180.) The Court
set the matter for an evidentiary hearing. (See id.)
The Court later identified eight issues on which it would
receive testimony and evidence at an evidentiary hearing:
1. The assertions in the affidavits of Monico Hayes and
Paijah McCloud (ECF ## 144-1 and 144-2) that Hayes and
McCloud informed Soles that they could present certain
exculpatory testimony and that Soles unreasonably failed to
elicit that testimony from them during their direct
examination. The hearing will address whether Hayes and
McCloud so informed Soles and, if they did so inform Soles,
why Soles chose not to elicit the testimony.
2. The assertion in Scott's affidavit (ECF #144-3) that
Soles failed to investigate and present evidence that Tynisha
Jones had damaged a 2005 Grand Marquis leased by her mother.
The hearing will address whether Soles was told about this
alleged evidence and, if he was, whether Soles investigated
it and why he chose not to present it at trial.
3. The assertion in Scott's affidavit (ECF #144-3) that
Soles failed to investigate and present evidence that
Dexavior Evans had threatened Scott in phone calls that Evans
made to Scott. The hearing will address whether Soles was
told about this alleged evidence and, if he was, whether
Soles investigated it and why he chose not to present it at
4. Scott's assertion that Soles promised Scott that Soles
would not impugn McCloud's credibility or attack McCloud
if Scott permitted Soles to remain as counsel. (See ECF #162
at Pg. ID 2753.) The hearing will address whether Soles made
this alleged promise and, if he did, why he chose to suggest
in his closing argument that McCloud may have been present at
the time of the carjacking.
[5.] Attorney Soles' failure to obtain tape recordings of
a 911 call allegedly placed by Scott's cellular
telephone; [6.] Soles' failure to call Demetrius McCloud
as an alibi witness at Scott's trial;
[7.] Soles' failure to investigate whether Tynisha
Jones' brother's “baby mama” possessed a
Ford Expedition that could have been driven by Dexavior Evans
during the carjacking; and
[8.] Soles' failure to investigate allegedly threatening
behavior by Tynisha Jones against Scott at the
“Scotch” party store/market.
(Order, ECF #196 at Pg. ID 3086-88.)
evidentiary hearing lasted two days. It commenced on November
7, 2017, and concluded on March 12, 2018. At the commencement
of the hearing, the Court identified one additional issue on
which it would receive evidence: Scott's claim that Soles
failed to discover and present evidence that parts from the
carjacked 2006 Grand Marquis were not interchangeable with
parts from Scott's 1996 Grand Marquis.
witnesses testified at the evidentiary hearing: Scott, Soles,
Roy McCallister (an investigator on Scott's defense
team), and Kurt Limburg (a service manager for a
Lincoln-Mercury dealership). The Court finds that the
testimony of Soles and McCallister was entirely credible, and
the Court relies on much of that testimony in its analysis
below. Soles and McCallister each presented with a believable
demeanor, and they appeared candid and forthright in their
testimony. To the extent that there were any conflicts in the
testimony by Scott, on one hand, and the testimony of Soles
and McCallister, on the other hand, the Court credits the
testimony of Soles and McCallister.
conclusion of the hearing, the Court allowed Scott and the
government to file post-hearing briefs. Both Scott and the
government filed supplemental briefs (see ECF ##
355, 368), and Scott filed several replies to the
government's supplemental brief. (See ECF ##
374, 375, 377, 378.)
seeks relief under Rule 33 of the Federal Rule of Criminal
Procedure.In relevant part, that rule provides:
“Upon the defendant's motion, the court may vacate
any judgment and grant a new trial if the interest of justice
so requires.” Fed. R. Crim. Proc. 33(a). “A
motion for a new trial can be premised on the argument that
the verdict was against the manifest weight of the evidence,
and it can be premised on the argument that substantial legal
error has occurred.” United States v.
Callahan, 801 F.3d 606, 616 (6th Cir. 2015) (internal
quotations omitted). “Although the Rule does not define
‘interest of justice, ' a violation of a
defendant's Sixth Amendment right to the effective
assistance of trial counsel constitutes a substantial legal
error such that a new trial is warranted.” United
States v. Arny, 831 F.3d 725, 730-31 (6th Cir. 2016)
(internal quotations omitted).
and his defense team (which included investigator
McCallister, the former head of the Detroit Police Department
homicide unit) spent 1, 935 hours working on Scott's
defense. (See Nov. 7, 2017 Evid. Hearing Tr. at
191-93, ECF #261 at Pg. ID 3618-20.) Their hard work was
obvious throughout the course of the proceedings. Indeed,
they presented a vigorous defense on Scott's behalf. They
filed pre-trial motions to suppress certain evidence;
successfully opposed the admission of unfairly prejudicial
prior bad acts evidence that the government sought to
introduce at trial; vigorously and effectively cross-examined
Evans, the government's key witness, and then argued
extensively that Evans should not be believed; attacked the
government's contention that Scott had a motive to commit
a carjacking; criticized the government's assertion that
Evans and Hubbard, the actual carjackers, were troubled
teens; and explained to the jury why it should believe that
the alibi witnesses could remember events from two years
earlier. Nonetheless, Scott contends that Soles and his team
failed to provide effective assistance of counsel.
ineffective assistance claims are governed under the familiar
standard established by the Supreme Court in Strickland
v. Washington, 466 U.S. 668 (1984). In
Strickland, the United States Supreme Court set
forth a two-part test for evaluating claims of ineffective
assistance of counsel. First, a defendant must show that his
counsel's performance was deficient. Strickland,
466 U.S. at 687. “This requires showing that counsel
made errors so serious that counsel was not functioning as
the ‘counsel' guaranteed the defendant by the Sixth
Amendment.” Id. Second, the defendant must
show “that the deficient performance prejudiced the
defense. This requires showing that counsel's errors were
so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Id.
satisfy the performance prong of Strickland, a
defendant “must identify the acts or omissions of
counsel that are alleged not to have been the result of
reasonable professional judgment.” Id. at 690.
A court's scrutiny of counsel's performance is highly
deferential. See id. at 689. “[C]ounsel is
strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable
professional judgment.” Id. at 690. The burden
is on the defendant to overcome the presumption that the
challenged action was sound trial strategy. See id.
satisfy the prejudice prong of Strickland, a
defendant must show “a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at
694. “This does not require a showing that
counsel's actions ‘more likely than not altered the
outcome, '” but “[t]he likelihood of a
different result must be substantial, not just
conceivable.” Harrington v. Richter, 562 U.S.
86, 112 (2011) (quoting Strickland, 466 U.S. at
Court begins with the claims that Scott raised in his
supplemental motion - i.e., the claims that Ms.
Maceroni refused to present because she believed they lacked
first argues that Soles was ineffective for failing to seek
dismissal of the Superseding Indictment on the ground that
the Superseding Indictment “was unreliable and
false.” (ECF #162 at Pg. ID 2744.) However, Soles could
not have moved to dismiss the Superseding Indictment based
upon the evidence underlying that indictment because
“courts evaluating motions to dismiss do not evaluate
the evidence upon which the indictment is based.”
U.S. v. Landham, 251 F.3d 1072, 1080 (6th Cir.
2001); see also U.S. v. Short, 671 F.2d 178, 182
(6th Cir. 1982) (stating that the “validity of an
indictment is not affected by the type of evidence presented
to the grand jury, even though that evidence may be
incompetent, inadequate, or hearsay”). Soles
“cannot be deemed ineffective for failing to make a
futile motion” attacking the Superseding Indictment.
Farr v. Davis, 2012 WL 707033, at *16 (E.D. Mich.
Mar. 5, 2012) (citing U.S. v. Steverson, 230 F.3d
221, 225 (6th Cir. 2000)).
next contends that Soles was ineffective for failing to
object to certain aspects of the government's closing
argument. First, Scott complains that Soles did not object to
the government's statement in its closing that
Scott's car was in bad shape - a claim the government
made to support its theory that Scott had a motive to carjack
a similar car to use as a source of replacement parts.
(See ECF #162 at Pg. ID 2748.) But Soles did not
ignore the government's contention concerning the
description of Scott's car. Instead, he specifically
attacked that assertion in his closing argument.
(See Jury Trial Tr. at 79-80, ECF #124 at Pg. ID
1855-56.) Soles' decision to address the government's
claim concerning the condition of Scott's car through
argument in his own closing rather than through an objection
to the government's closing was not unreasonable.
See, e.g., Searcy v Berghuis, 549 Fed.Appx. 357, 362
(6th Cir. 2013) (holding that counsel was not ineffective for
withholding objection to prosecutor's closing argument
where counsel responded to objectionable portion of
prosecutor's closing in his own closing). Moreover, Scott
has not shown that he suffered prejudice from Soles'
decision to attack the government's claim in his own
closing rather than by objecting during the government's
Scott complains that Soles failed to object to the
government's statement in its closing that Evans never
denied his involvement in the carjacking. (See ECF
#162 at Pg. ID 2748.) But Soles specifically highlighted in
his closing argument that Evans did previously
suggest that he may not have been involved in the carjacking.
(See Jury Trial Tr. at 95, ECF #124 at Pg. ID 1871.)
Soles' decision to address the government's statement
in its closing in his closing rather than through an
objection to the government's closing was not
unreasonable. See Searcy, 549 Fed.Appx. at 362. And
Scott has not shown that he suffered prejudice from
Soles' decision to confront the government's
contention during his closing rather than by objecting during
the government's closing.
Scott complains that Soles failed to object to the
government's statement in its closing that Evans
consistently admitted his criminal history. (See ECF
#162 at Pg. ID 2748.) But Soles noted during his closing
argument that Evans had attempted to deny and/or minimize
culpability for some of his criminal history. (See
Jury Trial Tr. at 93, ECF #124 at Pg. ID 1869.) Soles'
decision to address the government's claim in its closing
in his own closing rather than through an objection to the
government's closing was not unreasonable. See
Searcy, 549 Fed.Appx. at 362. And, again Scott has not
shown that he suffered prejudice from Soles' decision to
attack the government's assertion during his closing
instead of objecting to the government's closing.
Scott argues that Soles was ineffective for failing to object
to the government's statement in its closing that Scott
admitted his involvement in the carjacking during one of the
recorded telephone conversations. (See ECF #162 at
Pg. ID 2748.) But there was no basis for an objection. The
government was permissibly arguing its interpretation of the
recorded evidence that was played for the jury, and that
interpretation was not unreasonable. The government's
description of Scott's statements was well within proper
bounds. See U.S. v. Henry, 545 F.3d 367 (6th Cir.
2008) (noting that the Sixth Circuit “afford[s] wide
latitude to a prosecutor during closing argument”).
Soles was not ineffective for failing to make an objection to
the government's characterization of the recording that
would have been overruled.
Scott contends that Soles should have objected when the
government said in its closing that after the carjacking the
“Grand Marquis [the stolen car] while on the entrance
ramp [was] closely following behind the blue Expedition
[Scott's vehicle].” (ECF #162 at Pg. ID 2748.)
Scott says that the Grand Marquis was never behind the
Expedition. Soles was not ineffective for failing to object
to this statement because the statement was not particularly
important. The jury had seen a video recording of the
vehicles entering the highway, and thus it was well aware of
the actual order of the vehicles. It was not unreasonable for
Soles to withhold an objection on this minor point, and even
if the failure to object could be deemed unreasonable, Scott
has not shown that the lack of an objection on this issue
caused him prejudice.
Scott complains that Soles failed to object when, during
closing argument, the government commented on the refusal of
the defense alibi witnesses to speak to law enforcement in
the months between the Superseding Indictment and trial. Some
background is helpful in understanding this aspect of
Scott's claim. During cross-examination of the defense
alibi witnesses, the government elicited that even though
those witnesses claimed to have exculpatory alibi
information, they made no effort to provide that information
to law enforcement and declined to speak with agents when
contacted. Then, during closing argument, the government
contended that the witnesses should not be believed because
they waited until trial to tell their stories and avoided
telling their stories to the investigators. (See
Jury Trial Tr. at 67, ECF #124 at Pg. ID 1843.) Scott now
argues that the government improperly commented on the
witnesses' invocation of their Fifth Amendment right to
remain silent and that Soles should have objected to the
government's improper commentary.
Scott has not persuaded the Court that Soles could have made
a meritorious objection to the government's comments.
Scott has not cited any authority for the proposition that
Scott would have had standing to complain about an aspect of
the government's closing that supposedly infringed
the witnesses' Fifth Amendment rights (not
Scott's). More importantly, Scott has not cited any
authority to support his argument that the government's
comments were an improper attack on the witnesses'
credibility or that the comments violated the Fifth Amendment
in any way. It was certainly fair for the government to
impugn the credibility of the alibi witnesses by highlighting
that they did not come forward sooner with their
supposedly-exculpatory information. Scott has not
demonstrated that Soles was ineffective for failing to object
to the government's attack on the alibi witnesses.
Scott alleges that Soles failed to make a number of other
objections to the government's closing, but the matters
Scott identifies were not particularly important. Thus, Soles
reasonably could have chosen to withhold objection, and Scott
has not shown ...