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United States v. Scott

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

May 10, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CURTIS SCOTT, Defendant.

          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.

         On 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 DENIED.

         I

         The 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.

         Scott, 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.

         Following 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.

         On 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.

         Mr. 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.)

         During 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.

         The 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.)

         The 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.)

         The 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.)

         The 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 trial.
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.)

         The 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.

         Four 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.

         At the 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.)

         II

         Scott seeks relief under Rule 33 of the Federal Rule of Criminal Procedure.[1]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).

         III

         Soles 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.

         Scott's 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.

         To 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. at 689.

         To 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 693).

         A

         The 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 merit.

         1

         Scott 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)).

         2

         Scott 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 closing.

         Second, 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.

         Third, 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.

         Fourth, 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.

         Fifth, 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.

         Sixth, 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.

         But 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.

         Finally, 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 ...


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