United States v. Arrington

• Decision Date: 18 November 2021
• Docket Number: 15-CR-33-A
• Parties: UNITED STATES OF AMERICA, v. RODERICK ARRINGTON, Defendant.
• Court: U.S. District Court — Western District of New York

UNITED STATES OF AMERICA,
v.
RODERICK ARRINGTON, Defendant.

No. 15-CR-33-A

United States District Court, W.D. New York

November 18, 2021

DECISION AND ORDER

RICHARD J. ARCARA UNITED STATES DISTRICT COURT

Pending before the Court are various pretrial motions filed by pro se Defendant Roderick Arrington and the Government, following the Second Circuit's remand for a new trial after vacating Defendant's judgment of conviction. The Second Circuit determined that the trial evidence was sufficient to support each count of conviction, but Defendant's Sixth Amendment right to conflict-free counsel was violated. Oral argument was heard on the pending pretrial motions on October 12, 2021.

Initially, the Court is not fully persuaded that the Second Circuit, which remanded this case for a new trial, intended that this Court also permit the filing of further pretrial motions. The Government's position since the Mandate was issued has been that “re-litigating” pretrial matters, motions, or hearings, or permitting further discovery, is improper, as the case was “remanded for trial” and no other purpose. (Dkt. No. 541, p. 2; Dkt. No. 545, pp. 2-3; Dkt. No. 588, p. 37; Dkt. No. 635, ¶ 24; Dkt. No. 644).

This Court is well-aware of the mandate rule, which is part of the “law of the case” doctrine. See United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002); United States v. Stanley, 54 F.3d 103, 107 (2d Cir. 1995). Where a case is remanded

1

to the district court for further proceedings, such as a new trial here, the mandate rule “compels compliance on remand with the dictates of the superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court.” United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001). The mandate rule also prohibits consideration of issues that could have been, but were not, raised at the time of the initial appeal “unless the mandate can reasonably be understood as permitting [the district court] to do so.” Id. On the other hand, the mandate rule does not bar a party from raising an issue on remand that the party had no opportunity or incentive to raise at the original proceeding. See Quintieri, 306 F.3d at 1229-1230. For example, where a particular argument would have no practical effect in light of the district court's original ruling but “becomes relevant only after appellate review, ” it may be raised on remand even if it was not raised at the original proceeding. United States v. Thorn, 446 F.3d 378, 385 (2d Cir. 2006).

The Government may be right that the Second Circuit did not intend for any further pretrial litigation before a new trial in this case, ^[1] but in the interest of caution and because the Court permitted pro se Defendant to file pretrial motions and the Court heard oral argument on the motions, the Court analyzes each motion, below.

For the reasons that follow, it is hereby ORDERED that Defendant's motion (Dkt. Nos. 534, 540, 542) for search-warrant related discovery, motion to compel and motion to dismiss (Dkt. No. 596) based on alleged irregularities in the grand jury proceedings, and motion (Dkt. No. 598) to amend the protective order are DENIED. Defendant's

2

motion (Dkt. Nos. 534, 542) based on double jeopardy and issue preclusion is DENIED without prejudice. Moreover, Defendant's motion (Dkt. No. 610) to file a document and assign a docket No. and Defendant's motion (Dkt. No. 631) for a waiver of fees are DENIED as MOOT. As to the Government's motion to seal (Dkt. No. 599) Defendant's motion to compel and any other filings that discuss or quote the grand jury testimony, that motion is GRANTED. Defendant's motion (Dkt. No. 636) for funds to retain a private investigator is GRANTED, IN PART. Last, the Government's motion (Dkt. No. 635) to set a date certain for trial is DENIED, without prejudice.

BACKGROUND

The Court assumes the parties' familiarity with the facts they have proffered, the procedural history, and the issues on review. The Court refers to those proceedings and its rulings only as is necessary to explain the reasoning that follows.

As explained by the Second Circuit in its summary of the evidence at the first trial, this case centers on the drug trafficking of the Schuele Boys - a violent gang in Buffalo, New York comprised of Defendant, and his co-defendants Aaron Hicks, Marcel Worthy, and LeTorrance Travis, and witnesses Jerome Grant and Demario James, who grew up together in the same neighborhood. Defendant's role at the first trial was described as the “enforcer”, and the Second Circuit rejected Defendant's sufficiency challenge to Defendant's murder of Quincy Balance and attempted murder of Damon Hunter on August 30, 2012, in aid of racketeering activity-noting “the strong evidence that [Defendant] shot them”. These were acts of retaliation, as the Schuele Boys believed Balance and Hunter were involved in shooting and killing Schuele Boys member and drug dealer Walter “Matt” Davison (Hicks's best friend) four days earlier.

3

Defendant was initially arrested via criminal complaint and indicted in 14-CR-204-A (see 14-CR-204-A, Dkt. Nos. 1, 9). He was charged alone with violations relative to a search warrant executed at his mother's residence on or about October 31, 2014 (see 14-CR-204-A, Dkt. No. 9). On February 20, 2015, a grand jury in this District returned an Indictment charging Hicks and Worthy (again, who were to become Defendant's co-defendants in this case), with one count of narcotics conspiracy, in the instant case, 15-CR-33-A (Dkt. No. 1). Approximately four months later, on June 19, 2015, a grand jury returned a 15-count Superseding Indictment in 15-CR-33-A (Dkt. No. 17), charging Defendant and co-defendants with racketeering conspiracy, narcotics conspiracy, murder and attempted murder in aid of racketeering, and various firearm offenses. The Superseding Indictment also included all four charges from the Indictment in 14-CR-204-A, in Counts 9 through 12. The Indictment in 14-CR-204-A was then dismissed by the Government with leave of the Court (see 14-CR-204-A, Dkt. No. 40), and the Government proceeded against Defendant and to trial on the Superseding Indictment in 15-CR-33-A. Defendant's first jury trial was held in September 2017, over a period of nine days. The trial resulted in a conviction on Counts 1 through 8 of the Superseding Indictment, ^[2] and an acquittal on Counts 9 through 12, the four remaining drug and gun possession charges related to the search warrant executed at Defendant's mother's residence on or about October 31, 2014. Defendant was sentenced on December 20,

4

2017 to an aggregate term of two terms of life imprisonment to run consecutively, plus a 30-year consecutive sentence (Dkt. Nos. 309, 310). On November 20, 2019, the Second Circuit issued the Mandate (Dkt. No. 523) that vacated Defendant's conviction and remanded the case for a new trial. The Second Circuit held that while the trial evidence was sufficient to support each count of conviction, Defendant's Sixth Amendment right to effective assistance of counsel was violated when the Court did not “ensure that [he] understood the full scope of the consequences arising from his counsel's conflict of interest, including disadvantages of a trial severance that counsel proposed.” (Dkt. No. 523).

After the Mandate was issued on November 20, 2019, Defendant was appointed CJA counsel, Joseph LaTona, Esq., on January 13, 2020, after a status conference was held on December 2, 2019 regarding the issuance of the Mandate and whether Defendant qualified for Court-appointed counsel. On January 27, 2020, Mr. LaTona reported that he had reviewed all the trial transcripts and found it necessary to file pretrial motions, and Defendant had informally sent the Government a Rule 12 motion for access to warrant application materials. At that juncture, the Court set a schedule for pretrial motions.

Mr. LaTona subsequently filed some motion papers before filing a motion to withdraw as counsel (Dkt. Nos. 547, 579). Mr. LaTona stated that “it would be impossible to effectively represent Mr. Arrington” because he learned that Defendant had sent a letter directly to the Court complaining there was a “lack of communication between he and counsel with regard to motion practice.” Mr. LaTona also noted that Defendant indicted his desire to proceed pro se and to be appointed standby counsel,

5

and that Defendant intended “to engage in additional motion practice which would include a motion to dismiss the indictment against him for a violation of his constitutional right to a speedy trial.”

Mr. LaTona was then relieved of his appointment on December 17, 2020, and the Court appointed Kevin Spitler, Esq. to represent Defendant, his second CJA counsel after the remand. Approximately six weeks later, on January 29, 2021, the parties appeared for a status conference. Mr. Spitler reported that while he had reviewed almost the entirety of the file he received from Mr. LaTona, and had three telephone conferences with Defendant, the day before, Defendant told Mr. Spitler of his intent to appear pro se. Mr. Spitler had explained to Defendant the consequences of appearing pro se and what Mr. Spitler's role would be should he transition to standby counsel. The Court directed that further discussions on this issue occur between Mr. Spitler and Defendant and adjourned the matter for two weeks.

On February 10, 2021 (Dkt. 588 [transcript of proceeding held on 2/10/2021), the Court engaged in a Faretta colloquy with Defendant, pursuant to Faretta v. California, 422 U.S. 806, 835 (1975). At that proceeding, Mr. Spitler reported that he had further counseled Defendant about the implications of proceeding pro se. Defendant affirmed to the Court that he understood Mr. Spitler and had no complaints with his advice, yet he intended to move forward pro se. He stated that he wished to file a motion pursuant...