United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Errol Mayers's
motion for extension of time to file a motion for a new trial
(Dkt. No. 124) and motion for a new trial (Dkt. No. 125).
Having thoroughly considered the parties' briefing and
the relevant record, the Court finds oral argument
unnecessary and hereby DENIES both motions for the reasons
December 6, 2016, after a two-day trial, Defendant Errol
Mayers was found guilty by jury of one count of felon in
possession of a firearm. (Dkt. Nos. 56, 61, 64.) During
trial, the jury heard testimony that police responded to an
altercation between Mayers and his girlfriend at a casino.
(Dkt. No. 126-1 at 116-118.) The jury watched surveillance
video-footage of Mayers place an object into bushes outside
the casino and police subsequently recover a handgun from the
bushes 10 minutes later. (Dkt. No. 126-1 at 80-89, 121-123.)
Mayers filed three separate motions for a new trial. (Dkt.
Nos. 86, 90, 101). The Court denied all three motions. (Dkt.
Nos. 91, 95, 108.) Mayers's counsel subsequently filed a
motion to withdraw. (Dkt. No. 110.) Magistrate Judge Brian
Tsuchida granted the motion and appointed new counsel. (Dkt.
No. 114.) In light of the change in counsel, the Court
continued sentencing until August 22, 2017. (Dkt. No. 112.)
On its own motion, the Court subsequently rescheduled
sentencing twice-first to October 17, and then to November
17, 2017. (Dkt. Nos. 121, 123.)
October 9, 2017, Mayers filed a motion to extend the deadline
for filing a motion for a new trial to October 31, 2017.
(Dkt. No. 124.) The same day, Mayers filed a motion for a new
trial based on the ineffective assistance of counsel of his
first attorney. (Dkt. No. 125.) Mayers asserts that his trial
counsel failed to call key witnesses, failed to make timely
objections to prejudicial testimony, failed to request a key
jury instruction, and that his attorney had a conflict
because he was under criminal investigation for an unrelated
charge of witness tampering while he represented Mayers.
(Id. at 1-2.)
Mayers' Motion for a New Trial
Federal Rules of Criminal Procedure permit the Court to
vacate a judgment and grant a motion for a new trial
“if the interest of justice so requires.” Fed. R.
Crim. P. 33(a). The decision to grant a new trial “is
within the sound discretion of the district court[.]”
United States v. A. Lanoy Alston, D.M.D., P.C., 974
F.2d 1206, 1212 (9th Cir. 1992) (citation omitted). A motion
for a new trial that is based on any ground other than
newly-discovered evidence must be filed within 14 days of the
verdict. Fed. R. Crim. P. 33(b)(2). Mayers's motion for a
new trial is not timely under Federal Rule of Criminal
Procedure 33 because it was filed months after his verdict.
(Dkt. Nos. 64, 124.) Accordingly, Mayers filed a motion
asking the Court to extend the deadline for him to file a
motion for a new trial. (Dkt. No. 124.)
Court may consider a motion for a new trial made 14 days
after the verdict if “the party failed to act because
of excusable neglect.” Fed. R. Crim. P 45(b)(1)(B).
Mayers's untimely motion for new trial is not based on
newly discovered evidence, but on excusable neglect. (Dkt.
No. 124 at 2.) District courts apply a four-factor
balancing test to determine whether a defendant's failure
to timely file a motion was the result of excusable neglect.
Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir.
2004). The factors to be considered are: “(1) the
danger of prejudice to the non-moving party, (2) the length
of delay and its potential impact on judicial proceedings,
(3) the reason for the delay, including whether it was within
the reasonable control of the movant, and (4) whether the
moving party's conduct was in good faith. Id.
(citing Pioneer Investment Services Co. v. Brunswick
Associates Ltd. Partnership, 507 U.S. 380, 395 (1993).
outset, the Court does not perceive prejudice to the
Government if it were to grant Mayers' motion for a new
trial, nor does it find evidence that the motion is made in
bad faith. The Government did not oppose Mayers' motion
based on untimeliness, (Dkt. No. 126), and Mayers makes the
motion based on his prior attorney's performance at
trial. (Dkt. No. 125 at 1). That said, both the length and
reasons for the delay are problematic.
the length of the delay is substantial, particularly when
compared with the normal 14-day limit allowed by the Federal
Rules. Fed. R. Crim. P. 33(b). Mayers makes his motion 10
months after the verdict and 4 months after new counsel was
appointed. (Dkt. Nos. 64, 114, 125.) This Court has
previously found that a similar untimely motion for a new
trial based on ineffective assistance of counsel was not the
product of excusable neglect. United States v.
Jassal, Case No. CR08-0052-JCC, Dkt. No. 158 at 6,
aff'd 388 Fed.Appx. 748, 750 (9th Cir. 2010)
(unpublished) (finding no excusable neglect where defendant
filed a motion for new trial based on ineffective assistance
of counsel seven months after the verdict and five months
after the appointment of new counsel).
the reasons for the delay do not adequately explain the
significant time that passed before Mayers' motion for
new trial was filed. In his motion, Mayers states that
“substantial work was required to prepare and file the
motion for a new trial, including reviewing the trial
transcript, obtaining the fingerprint case file, interviewing
prospective witnesses, obtaining witness interview
transcripts, and obtaining witness declarations.” (Dkt.
No. 124 at 2.) That explanation addresses the four-month
delay since new counsel was appointed, which the Court
discusses below, but says nothing about the nearly six-month
gap between the jury's verdict and Mayers' request
for new counsel. (Dkt. Nos. 64, 114.)
Mayers filed three separate motions for a new trial through
his prior attorney, none of which dealt with his
counsel's ineffective assistance at trial. (Dkt. Nos. 86,
91, 101.) It was not until the Court denied each of those
motions, that Mayers sought a new attorney to raise his
ineffective assistance of counsel motion. (Dkt. No. 110.) Nor
does Mayers' current motion for a new trial deal with any
of his attorney's post-verdict conduct; rather, it is
completely limited to counsel's performance at trial.
(Dkt. No. 124.) In criminal cases, courts have been more
lenient in not holding defendants responsible for the
omissions of their attorneys because of the important rights
at stake. See, e.g., Stutson v. United
States, 516 U.S. 193, 196 (1996). However, a court's
determination of excusable neglect should ...