The opinion of the court was delivered by: Herndon, District Judge
Before the Court is defendant James E. Rollins, Sr.'s pro se Motion for New Trial (Doc. 684), filed pursuant to FEDERAL RULE OF CRIMINAL PROCEDURE 33, to which the Government has filed an opposing Response (Doc. 685).*fn1 Rule 33 governs motions for new trial. Unless the motion for new trial is "grounded on newly discovered evidence," Rule 33 requires such motion be filed "within 7 days after the verdict or finding of guilty." FED.R.CRIM.P.33(a). If a motion for new trial is grounded on newly discovered evidence, such motion must be filed "within 3 years after the verdict or finding of guilty." FED.R.CRIM.P.33(b).
Jury verdicts against Defendant were returned on February 13, 2007.
The instant Motion for New Trial (Doc. 684), was filed on February 3, 2009,*fn2 nearly two years later. Thus, it is clearly past the 7-day filing period stated in Rule 33(a). As such, Defendant asserts that his Motion is based on newly discovered evidence, namely, "Grand Jury transcripts and the testimony and the ineffective assistance of counsel discovered since trial" (Doc. 684, p. 2). In response, the Government opposes Defendant's Motion, arguing that he fails to demonstrate any "newly discovered" matters and, at best, his arguments are merely just "newly thought up" (Doc. 685, p. 2).
First, Defendant argues that newly discovered evidence of prosecutorial misconduct warrants a new trial. Defendant asserts that the Government's failure to produce an arrest warrant, an affidavit and authorization for a trap and trace, Grand Jury materials and a copy of the recording of his interrogation constituted an overall failure of the Government to fulfill its discovery obligations under Brady (Doc. 684, p. 2). The record indicates that Defendant's trial counsel had received all discovery relevant to Defendant in this case and thus, the Government fulfilled its pre-trial discovery requirements (see Doc. 683, p. 2). Defendant also subsequently admits in the instant Motion that his trial counsel was in possession of the Grand Jury transcript during trial (Doc. 684, p. 9). Therefore, Defendant's assertions of prosecutorial misconduct for withholding discovery materials are found to be without merit.
Continuing, Defendant argues it was prosecutorial misconduct for the Government to present evidence of the recovery of a firearm and other evidence from Defendant's residence, for which he was not charged. Again, it is evident these were actions which occurred during trial and as such, will not amount to newly discovered evidence.
Also under the claim of prosecutorial misconduct, Defendant accuses the Government of using racially and culturally biased trial tactics in presenting him as "ignorant." In support, Defendant expounds upon various statistics and societal generalizations, aiming to show a disparity between the intelligence level of Caucasian Americans versus African-Americans. What Defendant does not do, however, is point to any specific instances supporting his conclusory assertion that the Government utilized racially biased trial tactics. The Court, having observed the trial, finds no evidence of such racial or ethnic stereotyping made by the Government against any of the Defendants. Regardless of this finding, the Court also notes that the wrongful behavior is alleged to have occurred during trial proceedings and therefore cannot be considered newly discovered evidence.
Lastly, Defendant asserts that prosecutorial misconduct occurred when the Government presented perjured testimony to the Grand Jury via Agent McGarry's testimony. Again, this assertion describes behavior occurring before or during trial. Defendant offers no explanation as to why these circumstances would be unknown to him (or that the information was unavailable to him or his trial counsel) in order to file a timely motion for new trial. As such, the Court cannot conclude that this constitutes newly discovered evidence.
The Court finds that all of Defendant's assertions regarding prosecutorial misconduct (unless found to be meritless), consist of underlying facts known to Defendant or his trial counsel before or during trial. See United States v. Ellison, 557 F.2d 128, 133-34 (7th Cir. 1977) ("Where, as here, the facts alleged in support of a motion for a new trial were within the defendant's knowledge at the time of trial, such a motion may not be treated as one in the nature of newly discovered evidence for purposes of Rule 33."), certiorari denied, 434 U.S. 965 (1977). These assertions cannot be properly characterized as newly discovered evidence and therefore, are untimely made.
Perjured Grand Jury Testimony
In addition to the prosecutorial misconduct assertion regarding the Government's presentation of perjured testimony to the Grand Jury, Defendant further argues that Agent McGarry's testimony to the Grand Jury, in itself, as it was allegedly perjured testimony, warrants granting a new trial. While listing many specific instances of McGarry's testimony which Defendant argues amounts to hearsay evidence, Defendant fails to show how such testimony, given before trial, constitutes newly discovered evidence under Rule 33(b). (It is not adequate for Defendant to assert at the onset of his Motion that all evidence constitutes "newly discovered evidence.") Moreover, defense counsel cross-examined McGarry during Defendant's trial, at length, regarding any alleged inconsistencies between his Grand Jury and trial testimony. The Court finds Defendant's argument in this regard does not constitute newly discovered evidence and cannot, therefore, be considered timely under Rule 33 to warrant granting a new trial.
Ineffective Assistance of Counsel
Once again, Defendant argues various instances of ineffective assistance of trial counsel warrant granting a new trial: (1) counsel failed to raise the issue of a Miranda violation during trial and on appeal; (2) counsel refused Defendant's multiple requests to review the Grand Jury transcripts before, during and after trial; (3) counsel improperly conducted his pre-trial investigation; (4) counsel failed to challenge Defendant's indictment prior to trial; (5) counsel failed to appeal Defendant's conviction based on prosecutorial misconduct and for an indictment based on hearsay and perjured Grand Jury testimony; (6) counsel failed to impeach four of the Government's witnesses for making inconsistent statements; (7) counsel failed to impeach Agency McGarry for giving perjured Grand Jury testimony; (8) counsel failed to raise a Brady violation during trial and on appeal; (9) counsel failed to raise the issue of illegally seized evidence during trial and on appeal; (10) counsel failed to challenge the unlawfully admitted, highly prejudicial photograph evidence of Defendant's handgun; (11) counsel failed to argue the lack of proximity and temporal requirement for a 2-point enhancement during sentencing and for failing to instead have the matter presented to the jury; (12) counsel failed to argue the Defendant's recovered handgun could not have been present or connected to the offense; (13) ...