United States v. Alleyne
| Decision Date | 16 March 2017 |
| Docket Number | Criminal Action No. 2015-0012 |
| Parties | UNITED STATES OF AMERICA v. KENNETH ALLEYNE, Defendant. |
| Court | U.S. District Court — Virgin Islands |
Attorneys:
St. Thomas, U.S.V.I.
For the Government
Gordon C. Rhea, Esq.,
St. Thomas, U.S.V.I.
THIS MATTER comes before the Court on "Defendant Kenneth Alleyne's Motion for a New Trial Based on Ineffective Assistance of Counsel" and his associated "Memorandum of Law in Support of Motion for a New Trial Based on Ineffective Assistance of Counsel," which were filed on December 14, 2016. (Dkt. Nos. 128, 129). On December 27, 2016, the Government filed its "Response in Opposition to Defendant Kenneth Alleyne's Motion for a New Trial Based on Ineffective Assistance of Counsel" (Dkt. No. 130), and Defendant filed his "Response to Government's Opposition to his Motion for a New Trial Based on Ineffective Assistance of Counsel" on January 3, 2017 (Dkt. No. 131). For the following reasons, the Court will deny Defendant's Motion.
On April 28, 2015, the grand jury returned an Indictment charging Defendant with Wire Fraud in violation of 18 U.S.C. § 1343; Theft of Government Money in violation of 18 U.S.C. § 641; and False Statements to the Government in violation of 18 U.S.C. § 1001. (Dkt. No. 1). The matter proceeded to trial, during which the Government contended that from approximately May 1, 2010, to January 12, 2012, Defendant engaged in a scheme to unlawfully use his Overseas Housing Allowance (OHA) to obtain government money to which he was not entitled. The Government introduced evidence during the trial that Defendant represented that he was using the OHA funds to pay monthly rent to his landlord (who is also his mother) when, in fact, he was not paying rent to his mother. On September 30, 2016, the jury returned a verdict of guilty on 42 counts of wire fraud, one count of theft of government money, and one count of false statement to the government in violation of 18 U.S.C. § 1001.
After the jury returned its verdict, Defendant moved for an extension of time to file his post-trial motions. Specifically, Defendant requested permission to file his post-trial motions 20 days after receipt of the trial transcripts. Ruling from the bench, the Court granted Defendant's Motion, which was unopposed. On November 28, 2016, after the transcripts of the jury trial were docketed, the Court entered an Order setting a briefing schedule for Defendant's post-trial motions. (Dkt. No. 122). Pursuant to that Order, on December 13, 2016, Defendant filed his "Motion for a New Trial Based on Ineffective Assistance of Counsel and Supporting Memorandum of Law." (Dkt. No. 126).1
Defendant argues that "his trial counsel's failure to interview or present testimony from key exculpatory witnesses known to him and to otherwise present [D]efendant's defense deprived him of his right to effective assistance of counsel guaranteed by the 6th Amendment to the United States Constitution." (Dkt. No. 129 at 1).2 In particular, Defendant asserts that Attorney Robert King, who represented him during the trial, failed to adequately prepare for the trial in part because Attorney King showed little interest in meeting with Defendant during the pre-trial period and "neglected to spend the requisite time and energy interviewing key, easily attainable witness[es] for reasons wholly unrelated to trial strategy." (Id. at 5, 9). Defendant further asserts that Attorney King's lack of preparation caused his cross-examination of Marise James and Nina Clarke-Brewley to be deficient. (Id. at 9-11). Defendant argues that "[h]ad Attorney King undertaken even minimal preparation and called just a few of the witnesses [Defendant] had identified, this case would likely have had a dramatically different outcome." (Id. at 14).
In its Opposition, the Government disputes the merits of Defendant's Motion, both with regard to whether Attorney King's representation was deficient and whether his alleged deficient representation affected the trial's outcome. (Dkt. No. 130 at 10-11). Noting the witnesses that Attorney King did call and the fact that he cross-examined all of the Government's witnesses and objected to various lines of questioning, the Government asserts that "Attorney King had a trial strategy and it is unreasonable to second-guess his decision to present or not present certain testimony." (Id. at 10-11). The Government further asserts that "the evidence of [D]efendant's guilt was overwhelming" and that Defendant "failed to establish that any additional testimonywould have created a reasonable probability that the result of the proceedings would have been different." (Id. at 11).
In addition to its arguments on the merits, the Government argues that Defendant's Motion must be dismissed on procedural grounds. The Government asserts that Defendant's Motion is premature because claims regarding ineffective assistance of counsel, with few exceptions not relevant here, should be brought in a collateral proceeding such as a motion under 18 U.S.C. § 2255. (Id. at 7).
In his Response to the Government's Opposition, Defendant addresses both the Government's procedural and substantive arguments. Regarding the Government's assertion that Defendant's Motion is premature and should be brought as a motion under 18 U.S.C. § 2255, Defendant argues that the cases the Government cites in support of its position are inapposite because they all involve circumstances in which the defendant has already been sentenced. (Dkt. No. 131 at 2-3). Noting that he has yet to be sentenced, Defendant cites cases from the Second Circuit for the proposition that the "proper procedural avenue for defendants who wish to raise ineffective assistance claims after conviction but prior to sentencing is a motion for new trial pursuant to Fed. R. Crim. P. 33." (Id. at 3 (quoting United States v. Brown, 623 F.3d 104, 113 n.5 (2d Cir. 2010)) (quotations omitted) (emphasis in original)).
As to the Government's substantive argument, Defendant asserts that the Government "fails to address the merits of [Defendant's] argument" that he received ineffective assistance of counsel. (Id. at 4). Defendant argues that Attorney King's "failure to call—or in many instances, to even interview—the numerous substantive witnesses identified to him by [Defendant]" and to effectively cross-examine Government witnesses cannot be overcome by the fact that AttorneyKing called a "handful of character witnesses" and cross-examined every Government witness. (Id. at 5).
Under the circumstances here, the Court will not address the merits of Defendant's ineffective assistance of counsel claims in the context of his Rule 33 Motion. Contrary to Defendant's position, the Court finds that Defendant's ineffective assistance of counsel claims are more properly brought in a collateral proceeding pursuant to 28 U.S.C. § 2255. Accordingly, the Court will deny Defendant's Motion without prejudice to Defendant's ability to raise any ineffective assistance of counsel claims in a later collateral proceeding.
Rule 33 of the Federal Rules of Criminal Procedure states in relevant part that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). At times, defendants have grounded Rule 33 motions on claims of ineffective assistance of counsel. See Brown, 623 F.3d at 113; United States v. Kennedy, 354 F. App'x 632, 637 (3d Cir. 2009). In order to establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 694 (1984). The first prong of the Strickland test is the performance prong—i.e., "that counsel's representation fell below an objective standard of reasonableness." Gov't of the Virgin Islands v. Vanterpool, 767 F.3d 157, 165 (3d Cir. 2014) (quoting Strickland, 466 U.S. at 688 (quotations omitted)). The proper inquiry here is "whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. While this inquiry "is necessarily linked to the practice and expectations of the legal community. . . . a fair assessment of attorney performance requires [the court] to evaluate the conduct from counsel's perspective at the time." Vanterpool,767 F.3d at 165 (quoting Padilla v. Kentucky, 559 U.S. 356, 366 (2010); Strickland, 466 U.S. at 689) (quotations and ellipses omitted).
The second prong of the Strickland test is the prejudice prong—i.e., "that there is a reasonable probability that, but for counsel's unprofessional errors, 'the result of the proceeding would have been different.'" Id. (quoting Strickland, 466 U.S. at 694). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see also Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011).
Although defendants at times raise ineffective assistance of counsel claims on direct appeal, the Third Circuit has expressed a strong preference that such claims be litigated in a separate, collateral proceeding. See, e.g., United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003) (); United States v. Gaydos, 108 F.3d 505, 512 n.5 (3d Cir. 1997) (); United States v. Sandini, 888 F.2d 300, 312 (3d Cir. 1989) (...
To continue reading
Request your trial