United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE, District Judge.
Defendants were convicted by a jury of their peers, over two years ago, of crimes related to the theft of motorcycles in violation of the laws of the United States. Postverdict challenges to the indictment in the days preceding their original sentencing caused the Court to continue that proceeding. What followed was a barrage of filings calling into question everything from the sufficiency of the indictment to the motivations and tactics employed by both defense counsel and the prosecutors. Both the Sixth Circuit and the United States Supreme Court rebuffed efforts to prematurely delay the natural consequences of the jury's verdict. [R. 824; 836; 849; 860.] Even so, the Court was required to conduct an exhaustive and time consuming review of a record replete with complicated and concerning issues arising from the litigation decisions of both sides.
Having now resolved those concerns, the Court now turns to the motion to reconsider. [R. 794.] For the reasons set forth below, it will be DENIED.
While the procedural history of this case has been previously set out, it is important to thoroughly address both its current posture and how it got here. Richard Meade was charged with one count of Conspiracy to Money-Launder in violation of 18 U.S.C. § 1956(h); three counts of Money-Laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i); and one count of Trafficking in Certain Motor Vehicle Parts in violation of 18 U.S.C. § 2321. [R. 157.] Mark Justice was charged with one count of Conspiracy to Money-Launder in violation of 18 U.S.C. § 1956(h); one count of Money-Laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i); and one count of Trafficking in Certain Motor Vehicle Parts in violation of 18 U.S.C. § 2321. [ Id. ]
The fourteen day trial concluded on March 19, 2013. Meade was found guilty on all but one count of Money Laundering. [R. 615; 618.] Justice was found guilty on all counts. [R. 615; 616.] After trial, Justice filed timely Motions for a New Trial [R. 624] and to Set Aside the Verdict [R. 625]. Meade and Justice have both asked this Court to consider allowing them to remain at liberty pending appeal. [R. 701; 713.] On August 8, 2013, nearly five months following the verdict, and less than one week before Sentencing was scheduled, Meade filed a motion to Arrest Judgment and Dismiss the Indictment for Failure to Charge an Offense [R. 711] which Justice joined [R. 712]. The Court continued Defendants' Sentencing so that it could consider and rule on post-verdict motions. [R. 722.] The case quickly devolved into name-calling, finger-pointing and disorganized, excessive briefing.
In late August, 2013, the United States asked the Court to Order Defense Counsel to show cause for what the Government perceived as inappropriate statements and behavior employed by Defense Counsel. [R. 729; 730]. Soon thereafter, Defendants asked the Court to recuse, alleging that the Government's request for a show-cause order was so biased that the Court was caught in a catch-22 with recusal as the only means of escape. [R. 734.] The Court denied that request. [R. 753.] Extensive, and often argumentative, briefing ensued for months. Amidst that briefing, Defendants also asked for attorney's fees and that Sanctions be imposed against the Government. [R. 743.]
On February 10, 2014, this Court issued a Memorandum Opinion and Order which denied the Defendants' motions for a new trial, judgment not-withstanding the verdict and to arrest judgment. [R. 792.] Following the entry of that Order, Defense Counsel filed an Interlocutory Appeal with the Sixth Circuit [R. 793], requested that the case be stayed and a preliminary injunction entered [R. 797], and also filed a motion asking the Court to reconsider its Order citing both Federal Rules of Civil Procedure 59(e) and 60(b). [R. 794.] The Sixth Circuit, however, refused to consider the Appeal while the Rule 59(e) motion to reconsider was pending before this Court. [R. 795.]
Meanwhile, on April 1 of last year, this Court set a hearing on the motion to reconsider for April 10. [R. 814.] Defense Counsel objected and asked to set aside the scheduled hearing, arguing that while the above-mentioned Sixth Circuit filings remained pending that this Court was stripped of jurisdiction. [R. 815.] The Court disagreed, and entered an order reaffirming its intent to hold the hearing on the motion to reconsider and stated in that order that "it is important that Counsel responsible for developing and drafting the arguments underlying the contested issues be present." [R. 818.] On April 9, in a tactical move designed to provide the Sixth Circuit with jurisdiction, Defendants withdrew their Rule 59(e) motion (but not the Rule 60(b) motion). [R. 819; 820; 822.] On that same day, this Court converted the hearing scheduled for April 10 to a telephonic-status-conference to discuss the posture of the case. [R. 821.] The Court held that status conference and heard arguments from the parties about whether the District Court retained jurisdiction during the pendency of the filed interlocutory appeal. Over the objections of Defense Counsel, the Court concluded that, absent an Order from the Sixth Circuit stating otherwise, it would proceed with a hearing on the merits of the motion to reconsider. The Court sought input on convenient dates and everyone agreed that they would be available for a hearing on April 29. [R. 823.] On the following day, the Sixth Circuit promptly dismissed Defendants' interlocutory appeal, affirming this Court's jurisdiction. [R. 824.]
On April 14, Defense Counsel asked the Court to move the hearing to April 28 due to a scheduling mistake and the Court accommodated this change. [R. 826; 830.] On April 25, the Court issued an Order providing additional guidance on the substantive topics to be argued at the hearing [R. 833] and, separately, the Sixth Circuit also denied a single-judge request for a stay [R. 836].
Finally, on April 28, the Court held the scheduled hearing. Despite an explicit Court Order to the contrary, Ms. McPherson, Defense Counsel primarily responsible for the framing of the arguments before the Court, was not in attendance. At the hearing, the Government again asked the Court to Order Ms. MacPherson to show cause for her failure to appear. After a lengthy discussion with both the Government and remaining Defense Counsel, it was decided that the best way to proceed was to continue with the hearing. [R. 850 at 10-13, Apr. 28 Tr.] The Court took the motion for a show cause order under advisement. [R. 839.] Following the hearing, Ms. MacPherson asked this Court to permit her to withdraw from the proceedings and has anticipatorily asked for a Certificate of Appealability on this Court's future Order, notwithstanding whether that Order ultimately grants or denies her motion. [R. 845.] Since that time, Defendant Meade filed a petition for a writ of certiorari with the United States Supreme Court [R. 857], which was denied on October 7, 2014. [R. 860.] With this complex procedural history as context, the Court now turns to the Motion to Reconsider. [R. 794.]
Defendants' original Motion to Reconsider the February 10, 2014 Order of this Court sought relief pursuant to both Federal Rules of Civil Procedure 59(e) and 60(b). [R. 794.] As discussed above, Defendants withdrew their 59(e) motion and now seek relief solely under Federal Rule of Civil Procedure 60(b). [R. 819.] Neither of these civil rules apply in criminal proceedings. Nevertheless, the Court will consider Defendants' attack on the Indictment pursuant to its power under Federal Rule of Criminal Procedure 12(b).
Rules 59(e) and 60(b) are unavailable in criminal proceedings. See United States v. Moon, 527 F.Appx. 473, 474 (6th Cir. 2013) (Affirming District Court's denial of Rule 59(e) and 60(b) Motions seeking relief from criminal judgment because "neither rule of civil procedure applies to criminal proceedings."); United States v. Gibson, 424 F.Appx. 461, 464 (6th Cir. 2011) ("Rule 60(b) is not applicable to criminal proceedings, ' United States v. Diaz, 79 Fed.Appx. 151, 152 (6th Cir. 2003), and may not be used to disturb a criminal sentence or conviction.") (additional citations omitted); United States v. Bender, 96 F.Appx. 344, 345 (6th Cir. 2004) ("Fed.R.Civ.P. 60(b) does not apply in criminal proceedings" but "may be used to seek relief from the denial of § 2255 motion.") (internal citations omitted).
The parties agree, however, that Rule 12 provides the Court with authority to go back and review the validity of the indictment. [R. 850 at 17-23, Apr. 28 Tr.] At the time these motions were made, Rule 12(b)(3) provided that:
The following must be raised before trial: (A) a motion alleging a defect in instituting the prosecution; (B) a motion alleging a defect in the indictment or information-but 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 to state an offense."
Fed. R. Crim. P. 12 (Apr. 29, 2002, eff. Dec. 1, 2002) (amended December 1, 2014) (emphasis added). While the Court will ultimately reach these issues using Rule 12, it is not entirely clear that the Defendants' allegations actually amount to a suggestion that that the indictment "fails to invoke the court's jurisdiction or to state an offense, " as required by the plain language of the rule. This ambiguity is owed in large part to the Supreme Court's holding in U.S. v. Cotton, 535 U.S. 625 (2002), where it was held that defective indictments do not deprive a court of Subject Matter Jurisdiction. Id. at 630. At least in party because of this ambiguity, the Federal Rules of Criminal Procedure have been amended since the time that the pending motions were filed.
Alternatively, the parties argue that the Court may exercise its power to consider these arguments under Rule 34. At the time the motion was filed, the rule provided that "[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 (Mar. 26, 2009, eff. Dec. 1, 2009) (amended December 1, 2014). When confronted with the Defendants' original Motion to Arrest Judgment, the Court chose not to consider the Motion substantively as it was not filed "within 14 days after the court accepts a verdict or finding of guilty" as required by Fed. R. Crim. P. 34. In that Order, the Court noted the conflict between Federal Rules of Criminal Procedure 12 and 34 but decided not to ignore the clearly prescribed time limit in Rule 34. ...