United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE, District Judge.
Defendants were indicted of several counts all arising from the theft of motorcycles. Most defendants pled guilty. Three, however, elected to go to trial. Two of those defendants, Mark Justice and Richard Meade, were convicted and now have filed numerous motions challenging the verdict. For the reasons set forth, all of the motions will be denied.
The procedural history in this case is lengthy and important to the resolution of the pending motions. The trial began on February 25, 2013 [R. 591] and lasted 14 days, concluding on March 19. [R. 615.] The jury found Justice and Meade guilty. [R. 615; 616; 618.] On April 1, the United States filed a Motion for an evidentiary hearing on the issue of forfeiture. On April 2, Justice filed a motion for a new trial [R. 624] and on the next day he filed a motion to set aside the verdict. [R. 625.] On July 16, Meade requested release pending appeal. [R. 701.] On August 8, Meade filed a motion to arrest judgment and dismiss the indictment for failure to charge an offense. [R. 711.] The next day, Justice joined in Meade's motion to arrest judgment. [R. 712.] He also filed a motion for bond pending appeal the same day. [R. 713.] On August 23, Meade objected to the Court hearing any further proceedings in this matter before ruling on his previously filed motion to arrest judgment. [R. 725, (referring to R. 711)]. On August 28 and 29, the United States filed a motion and amended motion to show cause regarding the allegedly inappropriate tactics employed by Defense Counsel [R. 729; 730], which has been fully briefed. [R. 733; 740.] In early September, Defendants asked the Court to recuse and, finally, on September 12, Meade filed a motion requesting attorney's fees and sanctions. [R. 743.] On October 29, the Court denied Defendants' motion seeking this Court's recusal. On November 25, the parties were ordered to enter the transcripts from trial into the record and to resubmit their motions with references to the transcripts. The parties having complied, the Court now considers the outstanding motions that attack the verdict.
Federal Rule of Criminal Procedure 34 provides "[u]pon the defendant's motion or on its own, the court must arrest judgment if: (1) the indictment or information does not charge an offense; or (2) the court does not have jurisdiction of the charged offense." Fed. R. Crim. P. 34. The rule establishes that "[t]he defendant must move to arrest judgment within 14 days after the court accepts a verdict or finding of guilty, or after a plea of guilty or nolo contendere." Id. When, as is the case here, the Court is asked to arrest judgment on the basis of a bad indictment, "[t]he sufficiency of an indictment is reviewed de novo." United States v. Gibson, 409 F.3d 325, 331 (6th Cir. 2005) (citing United States v. Gatewood, 173 F.3d 983, 986 (6th Cir. 1999)).
Meade filed a motion to arrest the judgment of this Court, which alleges that the indictment fails to effectively charge Meade and, as a result, this Court lacks the proper jurisdiction to have heard the case. Justice has joined Meade in this motion. [R. 712.]
As stated in the rule, defendants have fourteen days from when "the court accepts a verdict or finding of guilty" to file a motion to arrest judgment. Fed. R. Crim. P. 34. See also United States v. Posr, 463 F.Supp.2d 434 (S.D.N.Y. 2006) (time for defendant to file motion to arrest judgment began running on date of conviction). Defendants concede this point in their August 8 Motion. [R. 711-2, stating "Normally, a defendant has 14 days after entry of the judgment or verdict, or a plea, within which to bring such a motion."] In this case, the Court accepted the jury's verdict and finding of guilt on March 19. This happened when, after the Jury returned the verdict, the Court asked Mr. Justice to stand and stated:
The defendant, Mark Justice, having pled not guilty to the offenses charged in the superseding indictment Counts 1, 5, and 9, and the jury having found you guilty of those offenses, I do find you guilty of those offenses.
[R. 772 at 216 (Tr. Mar. 19).] After advising Justice, the Court spoke to Meade:
The defendant, Richard Meade, having pled not guilty to the offenses charged in the superseding indictment to Counts 1, 3, 7 and 8, and the jury, having found you guilty of those offenses, I do find you guilty of those offenses, having pled not guilty, and to the offense charged in the superseding indictment at Count 6, and the jury having found you not guilty of that offense, I hereby enter a judgment of acquittal on that offense.
[Id. at 217 (Tr. Mar. 19).] Verdict forms were then entered into the docket. [R. 616; 618.] These acts constituted this Court's acceptance of the Jury's finding of guilt.
Despite the deadline imposed in the rule, Defendants waited over four months before filing this motion to arrest judgment on August 8. The apparent justification for this delay was Defense Counsel not "discovering a Supreme Court opinion, United States v. Santos , and a Sixth Circuit decision Wooten v. Cauley , indicating that the indictment in this case fails to charge... an offense of the money laundering statute" until the time of the filing. [R. 743 at 3.] Defendants argue, however, that there is no time limit for a court to arrest judgment on its own motion. [Id. at 3.]
It is unclear whether the Rule 34 time limit applies to the Court acting on its own motion. See Fed. Prac. & Proc. Crim., § 603, Time for Motion, (4th ed.). While Rule 34 has been recently amended, earlier case law actually suggests that the fourteen day timeline imposes a jurisdictional bar on the Courts. See United States v. Braswell, 51 F.Appx. 783, 784 (9th Cir. 2002) (District court did not err by denying motion for arrest of judgment because it was not filed within time period stated in rule.); Rowlette v. United States, 392 F.2d 437, 439 (10th Cir. 1968) (Referring to motions for arrest of judgment, judgment of acquittal and a new trial, the appellate court explained "[t]hese motions were untimely filed... and, therefore, deprived the trial court of jurisdiction to consider them."); U.S. v. Reeves, 293 F.Supp. 213, 214 (D.D.C 1968) (Referring to a motion to arrest judgment, stated "the Court is not permitted to enlarge the time permitted for the filing of such a motion.") Since this request to arrest judgment has been presented to the Court through a Defense motion, this Court finds it unnecessary to decide the issue of whether a judge could, sua sponte, arrest judgment outside the fourteen day window.
In what is fashioned as a Notice of Objection to Further Proceedings, filed on August 23, 2013, Defendants makes their case for why the Court should consider their motion to arrest judgment. They argue that since their motion alleges "constitutional and jurisdictional flaws, which divest the Court of the authority to conduct any further proceedings in this matter, " the Court must rule on the motion before proceeding to sentencing. [R. 725.] In support of this proposition, and likely with the knowledge that their motion to arrest judgment was untimely, the Defense looks to a District Court decision from Michigan, U.S. v. Brown, 154 F.Supp.2d 1055 (E.D. Mich. 2001). In that case, defense counsel argued, post-verdict, that problems with the indictment divested the Court of jurisdiction. The Court struggled to find what procedural device would allow it to consider the objection. As has been argued in this case, the Court in Brown concluded that the best tool was a Rule 34 motion to arrest judgment, however, that motion would have been untimely. The Court then looked to the earlier edition of the same treatise cited supra, Charles Allen Wright, Federal Practice and Procedure, § 193, at 334-35 (3rd ed. 1999), and focused in on what the treatise, and ultimately the Court, construed as an inconsistency between Rule 34 and Rule 12(b)(3)(b). That rule provides that "at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction or state an offense." Fed. R. Crim. P. 12(b)(3)(b).
This Court elects not to go to such lengths to get around the clearly imposed time limit in Rule 34. Rules governing post-verdict motions, which contain specific timelines, were designed to provide finality following a verdict. If Congress sought to permit the filing of motions to arrest judgment any time before sentencing or before appeal, they could have written that into the rule. They did not. This court will not circumvent the rule's clearly written timeline to justify responding to an untimely filed motion.
After a jury has reached a verdict, a defendant is permitted to file a motion for judgment of acquittal challenging the sufficiency of the evidence pursuant to Federal Rule of Criminal Procedure 29. Fed.R.Crim.P. 29(a), (c). "A defendant making such a challenge bears a very heavy burden." United States v. Tocco, 200 F.3d 401, 424 (6th Cir. 2000). When undertaking such review, the court "must decide whether, after viewing the evidence in a light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Gardner, 488 F.3d 700, 710 (6th Cir. 2007). Moreover, courts are precluded from weighing the evidence, considering witness credibility, or substituting its judgment for that of the jury. United States v. Chavis, 296 F.3d 450, 455 (6th Cir. 2002). "A judgment is reversed on insufficiency-of-the-evidence grounds only if [the] judgment is not supported by substantial and competent evidence upon the record as a whole.'" Gardner, 488 F.3d at 710 (quoting United States v. Barnett, 398 F.3d 516, 522 (6th Cir. 2005); United States v. Beddow, 957 F.2d 1330, 1334 (6th Cir. 1992)).
Rule 33 establishes that "[u]pon the defendant's motion, [a district] court may vacate any judgment and grant a new trial if the interest of justice so requires." U.S. v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010); see also Fed.R.Crim.P. 33(a). The phrase "interest of justice" is not defined within the rule, and courts have had marginal success in trying to "generalize its meaning." Id. (quoting United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989)). Still, several themes remain constant in the Rule 33 context. The conventional use of a Rule 33 motion "is to seek a new trial on the ground that the [jury's] verdict was against the manifest weight of the evidence.'" Id. (quoting United States v. Crumb, 187 Fed.Appx 532, 536 (6th Cir. 2006)); see also United States v. Legette-Bey, 147 Fed.App'x 474, 486 (6th Cir. 2005); United States v. Graham, 125 Fed.App'x 624, 628 (6th Cir. 2005); United States v. Solorio, 337 F.3d 580, 589 n. 6 (6th Cir. 2003). Finally, "[w]ith a Rule 33(a) motion for new trial on the ground that the verdict is against the weight of the evidence, the ...