U.S. v. Dukes, Docket Nos. 83-1204

• Decision Date: 25 January 1984
• Docket Number: Nos. 199-201,D,Docket No. 83-2185,83-1205,Docket Nos. 83-1204,s. 199-201
• Citation: 727 F.2d 34
• Parties: UNITED STATES of America, Appellee, () v. Charles O. DUKES, Appellant. and Charles O. DUKES, Appellant, () v. UNITED STATES of America, Appellee. ocket 83-1204, 83-1205, 83-2185.
• Court: U.S. Court of Appeals — Second Circuit

Page 34

727 F.2d 34

UNITED STATES of America, Appellee, (Docket Nos. 83-1204, 83-1205) v. Charles O. DUKES, Appellant. and Charles O. DUKES, Appellant, (Docket No. 83-2185) v. UNITED STATES of America, Appellee.

Nos. 199-201, Docket 83-1204, 83-1205, 83-2185.

United States Court of Appeals, Second Circuit.

Argued Sept. 22, 1983.

Decided Jan. 25, 1984.

Thomas D. Clifford, Hartford, Conn. (Skelley, Clifford, Vinkels, Williams & Rottner, P.C., Hartford, Conn., of counsel), for appellant.

Richard N. Palmer, Asst. U.S. Atty., Dist. of Conn., Hartford, Conn., (Alan H. Nevas, U.S. Atty., Dist. of Conn., New Haven, Conn., of counsel), for appellee.

Before LUMBARD, OAKES and VAN GRAAFEILAND, Circuit Judges.

LUMBARD, Circuit Judge:

Charles O. Dukes appeals from a judgment of conviction for bank robbery, 18 U.S.C. Sec. 2113(a) (1982), and conspiracy to commit bank robbery, 18 U.S.C. Sec. 371 (1982) entered in the District of Connecticut on August 12, 1982, following a jury verdict on March 10, 1982. He also appeals from an order of Judge Cabranes, filed May 27, 1983, denying his motion for a new trial and his petition under 28 U.S.C. Sec. 2255 to vacate his conviction.

In each of his appeals Dukes presents claims of prosecutorial misconduct and ineffective assistance of counsel. Since none of these claims involves newly discovered evidence, Dukes' motion for a new trial was not timely filed, and the district court lacked jurisdiction to consider it. Accordingly, we dismiss the appeal from the denial of the motion for a new trial. Dukes could not raise his prosecutorial misconduct claims on direct appeal, because they were not raised at trial, nor his ineffective assistance of counsel claim, since it involves factual matters concerning trial strategy outside the trial record. We therefore affirm Dukes' conviction on direct appeal. Although Dukes properly raises both claims in his Sec. 2255 petition to vacate his conviction, we agree with Judge Cabranes' findings that Dukes was not denied effective assistance of counsel, and was not prejudiced by any conduct of the prosecutor during trial. Accordingly, we affirm the denial of Dukes' petition.

I.

On June 9, 1981, three men robbed the Colonial Bank and Trust Company at 270 Farmington Avenue in Farmington, Connecticut, at gunpoint. After obtaining $1,057 in cash from the teller drawers, the The principal witnesses for the government were two cooperating codefendants, Jose Mora, a Hispanic male, and David Oszurek, a white male. They testified that Dukes, a black male, planned the robbery, helped "case" the bank on several occasions, and drove the car used during the bank robbery. Hazel Shafer, a friend of Dukes for two years, testified that Dukes came to her house in Farmington late in the morning on June 9, accompanied by Mora and Oszurek, whom she did not know at the time but later identified from FBI photographs. The men arrived in a rust-colored full-sized car, a fact Shafer remembered because she knew Dukes usually drove a white Cadillac. ¹ According to Shafer, the three men, after spending some time in her basement, left the house for a short time. After they returned, Shafer left them in the house and drove to the bank to withdraw money so that she could run other errands, but found it closed due to a robbery. ²

men ran from the bank to their get-away car, driven by a fourth man. Dukes, according to the government, was that fourth man.

David Jones, the bank manager, testified to the robbery, as did several other bank employees and a bank customer. Their testimony, as well as photographs taken by security cameras, established that the robbers included Mora, Oszurek, and a black male who remains unidentified. Joseph Guiliano, a local merchant, and John Hickey and Ron Cote, who were waiting outside the bank for a friend, saw the men leave the bank and run to a waiting car, which matched the description Shafer and Oszurek gave of a rust-colored full-sized car.

Mora testified that when four men finally returned to Hartford, they noticed that one of the guns used in the robbery was missing. Oszurek testified that the following day, Dukes phoned him and accused him of stealing the gun. Shafer stated that on the afternoon of the robbery, Dukes called her to see if he had left anything in her basement. Although she found nothing there at the time, she found a gun a week later.

Dukes' entire defense consisted of one witness, Mora's sister, who briefly testified to Mora's use of drugs and his corruptible personality.

On March 10, 1982, the jury found Dukes guilty. On April 2, 1982, pursuant to Dukes' application, new counsel was appointed. On July 6, 1982, still prior to his sentencing, he filed a motion for a new trial, pursuant to Fed.R.Crim.P. 33, raising claims of prosecutorial misconduct, newly discovered evidence, ³ and ineffective assistance of counsel. Because of uncertainty as to whether his motion for a new trial was timely filed, Dukes simultaneously filed a petition under 28 U.S.C. Sec. 2255 that raised identical claims.

On August 11, 1982, before Dukes' motions were considered, Judge Cabranes sentenced Dukes to 15 years on the bank robbery count and five years on the conspiracy count, the sentences to run concurrently.

The government had opposed as untimely filed the portions of the motion for a new trial which are the subject of this appeal, but later agreed to consolidate the hearings on the new trial motion and Sec. 2255 petition, which had both been amended to be identical. Five days of hearings were held in late January, 1983. On May 27, 1983, Judge Cabranes issued a detailed decision denying

the motion and the petition. Dukes then filed timely appeals from that decision and from his conviction.

II.

Fed.R.Crim.Pro. 33 allows a district court, upon motion by a defendant, to grant a new trial "if required in the interest of justice." The rule contains explicit time limits: a motion based on "newly discovered evidence" must be made within two years of final judgment, while a motion on any other grounds must be made "within 7 days after verdict or finding of guilty or within such further time as the court may fix during the 7 day period." These time limits are jurisdictional. If a motion is not timely filed, the district court lacks power to consider it. United States v. Vanterpool, 377 F.2d 32 (2d Cir.1967); 3 Wright, Federal Practice and Procedure, Sec. 558 at 360 (2d ed. 1982).

Dukes contends that his motion for a new trial was timely filed because it was based on newly discovered evidence. We disagree. For evidence to be considered newly discovered for purposes of Rule 33, a defendant must show that the evidence was discovered after trial and that it could not have been discovered sooner with the exercise of due diligence. United States v. Alessi, 638 F.2d 466, 479 (2d Cir.1980); United States v. Natelli, 553 F.2d 5, 7 (2d Cir.), cert. denied, 434 U.S. 819, 98 S.Ct. 59, 54 L.Ed.2d 75 (1977). We conclude that neither of the issues Dukes now raises--prosecutorial misconduct or ineffective assistance of counsel--involves newly discovered evidence.

On the charge of prosecutorial misconduct, Dukes claims he was deprived of a fair trial when, during redirect examination of Mora, the prosecutor elicited inadmissible evidence of a prior similar crime involving Dukes. In addition, Dukes claims that the prosecutor implicitly asserted his own belief in the truthfulness of Mora's testimony by asking Mora a series of questions intended to show the absence of any motivation to lie.

In cross-examining Mora, Dukes' assigned counsel, C. Thomas Furniss, attempted to show that Mora had been pressured by Leo Chupron, a Hartford police officer, into saying that Dukes was the instigator of the Farmington robbery. Following his arrest, Mora signed a statement that on the morning of the robbery he went to Dukes' Hartford restaurant on foot. At trial, he testified differently. Furniss pressed Mora on the reason for the inconsistency:

Q: Okay. You didn't go to Charlie's restaurant on foot, the way you said in your statement?

A: No.

Q: Well why did you give that statement under oath?

A: Because I was thinking about something else.

Q: Leo Chupron, right?

A: No.

Q: What?

(off the record discussion between the witness and Attorney Maxwell [Mora's counsel].

A: I was thinking about another job that was done.

On redirect examination by Assistant U.S. Attorney Dabrowski, Mora testified that he had given the statement while under the influence of heroin, and that he had not talked to anyone other than his lawyer from the time of his arrest until he spoke with Dabrowski, accompanied by his lawyer, the weekend before he testified at trial. Mora stated that his lawyer had told him not to talk to Chupron, and that he understood that if he perjured himself at trial, the plea bargain arrangement whereby he received a reduced sentence in return for his testimony would be revoked and he would be resentenced. Dabrowski then questioned Mora about the "other job that was done," which, of course, was not a subject of the prosecution:

Q: Mr. Mora, you testified that East Hartford bank job in which you were involved, Dave Oszurek was also involved in this?

A: Yes.

Q: Did anybody else go in the bank, besides you and Dave?

A: Yes.

Q: Who else?

A: Another black male.

Q: Do you know who he is?

A: I don't know his name.

Q: Who set that bank job up?

A: Charlie.

The court sustained Furniss' immediate objection, and, as requested by Furniss, ordered the answer stricken and instructed the jury to disregard it.

Dukes' claims concerning Dabrowski's conduct do not involve newly discovered evidence. Both involve questioning during trial, and no more. At the post-trial hearing, Dukes' own expert testified as to the prosecutorial misconduct claim based solely on his reading of the record. The only shred of evidence outside the record that Dukes points to was Dabrowski's...