United States v. Capps, 21-CR-10073-EFM

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
PartiesUNITED STATES OF AMERICA, Plaintiff, v. MICHAEL R. CAPPS, Defendant.
Docket Number21-CR-10073-EFM
Decision Date17 February 2023


MICHAEL R. CAPPS, Defendant.

No. 21-CR-10073-EFM

United States District Court, D. Kansas

February 17, 2023



Before the Court is Defendant Michael Capps' Motion for a New Trial (Doc. 77). Defendant contends that the Court erred in several of its decisions at his trial such that a new trial is in the interest of justice. These purported errors are that (1) the Court declined to permit evidence or testimony as to potential forfeiture during the guilt phase of Defendant's trial, (2) the Court instructed the jury before opening statements and declined to re-instruct the jury at the close of evidence or after closing statements, and (3) the Court's Instruction 42 to the jury improperly invaded the province of the jury.

Defendant has not made his Motion within the timeframe set out by Fed. R. Crim. P. 33, and nor does he attempt to show this failure was the result of excusable neglect. The Court therefore denies the Motion on that ground. Further, even if Defendant's Motion was timely,


denial would still be in order as the Court is not persuaded it erred in the ways suggested by Defendant.

I. Factual and Procedural Background

The Grand Jury indicted Defendant on 19 Counts related to an alleged scheme to fraudulently obtain COVID-19 relief payments. The Indictment contained a notice that the Government would seek forfeiture, under several different theories, of the content of Defendant's account with Pershing LLC. Count 11 was dismissed prior to trial on a motion by the Government.

Defendant proceeded to trial on the remaining 18 Counts.

Several days prior to trial, the Court held a conference with counsel from both sides regarding proposed jury instructions. As relevant to this Motion, Defendant objected to the Court's proposed Instruction 42. That instruction reads as follows:

A final suggestion by the court-not technically an instruction upon the law-may assist your deliberations. The attitude of jurors at the outset of and during their deliberations is important. It is seldom productive for a juror, immediately upon entering the jury room, to make an emphatic expression of his or her opinion upon the case or to announce a determination to stand for a certain verdict. The reason is obvious: we are all human and it is difficult to recede from a position once definitely stated, even though later convinced it is unsound.

Jurors are selected for the purpose of doing justice. This presupposes and requires deliberation--counseling together in an effort to agree. Have in mind at all times, therefore, that you are a deliberative body, selected to function as judges of the facts in a controversy involving the substantial rights of the parties. You will make a definite contribution to efficient administration of justice when and if you arrive at a just and proper verdict under the evidence which has been admitted. No one can ask more and you will not be satisfied to do less.

Defendant took issue with several aspects of this instruction. At the conference, Defendant noted a problem with the first paragraph of Instruction 42. He explained that if “I get [a juror] that says, ‘You know what, I'm not convicting him of anything,' . . . I get a hung jury.” He therefore preferred the Court not give an instruction that, as he said, instructed “everybody [to] get along


and don't state what your position is early.” The Court overruled Defendant's objection. In his instant Motion, Defendant focuses instead on the second paragraph, stating that the Court's instruction to the jury to “counsel[] together in an effort to agree” improperly invades the province of the jury.

It was also at this instruction conference that the Court informed counsel it planned, consistent with its recent practice, to instruct the jury prior to opening statements. Neither side voiced an objection to this procedure at the time.

Defendant's trial commenced on December 12, 2022. The Court instructed the jury prior to opening statements by counsel. At this time, the Court read Instructions 1 through 40 to the jury. These included the substantive instructions as to the elements of the offenses charged, instructions regarding the burden of proof, and the presumption of innocence. Written copies of the instructions were provided to each juror in their notebooks.

Opening statements by counsel immediately followed the Court's reading of the instructions. During Defendant's opening statement, the Court sustained an objection by the Government to Defense counsel's discussion of the forfeiture notice in the indictment. Likewise, during the Government's case-in-chief, the Court did not permit Defense counsel to inquire about the Government's motives for seeking forfeiture on cross-examination of the Government's witnesses. The Court reasoned that such an inquiry was premature during the guilt phase of Defendant's trial.

Because of pre-existing obligations on the Court's calendar, and because the trial needed to be finished prior to Christmas as lead counsel for the Government planned to retire thereafter, the trial schedule was somewhat unusual. As noted, trial began on December 12. It continued on


December 14 and 15. The Court called a recess until December 19, at which time the presentation of evidence concluded, closing arguments were heard, and the case was submitted to the jury.

On December 18, Defendant moved for the court to re-read certain instructions at the close of evidence. These were the instructions on the Government's burden of proof beyond a reasonable doubt and the Defendant's good faith defense to the fraud charges. The Court denied Defendant's motion on the ground that it would have been error to single out specific instructions to re-read. The Court informed Defense counsel that he was welcome to reference these instructions in his closing arguments to the jury, which he did.

Following closing arguments on December 19, the Court instructed the jury on some final logistical matters. Among these were Instruction 42, as discussed above. The Court also instructed the jury that, upon retiring to the jury room, they should read the Court's instructions before beginning deliberations. With these instructions, the case was fully submitted to the jury.

On December 21, the jury returned a verdict of Guilty on 12 out of the 18 Counts charged- specifically, Counts 1, 2, 4, 5, 7 through 10, and 12 through 15. The Court then instructed the jury as to the law on forfeiture. Counsel for both sides made their arguments as to the forfeiture issue, which was thereafter submitted to the jury. The same day, the jury returned a special verdict finding that the funds in Defendant's Pershing account constituted proceeds obtained from the commission of the wire fraud offenses in Counts 7 and 8, and that the contents of the Pershing account were involved in the money laundering transactions in Counts 13 and 15.

Defendant moved for a new trial on January 9. He recognizes his Motion is grounded on reasons other than newly discovered evidence, contending instead that the Court erred at several key junctures during his trial. The Government responds that Defendant's Motion should be denied as it is both untimely and without merit.


II. Legal Standard

Under Rule 33(a) of the Federal Rules of Criminal Procedure, the district court is vested with the discretion to grant defendant a new trial “if the interest of justice so requires.” Any error sufficient to require a reversal on appeal is an adequate ground for granting a new trial.[1] The defendant has the burden of proving the necessity of a new trial.[2] “A motion for a new trial is regarded with disfavor and should only be granted with great caution.”[3]

III. Analysis

A. Defendant's Motion is untimely.

A motion for a new trial grounded on reasons other than newly discovered evidence must be made within 14 days after the guilty verdict.[4] According to Fed. R. Crim. P. 45(a)(1), days are counted by (1) excluding the day of the event that triggers the time period; (2) counting every day, including intermediate Saturdays, Sundays, and legal holidays; and (3) including the last day of the period, unless that day is a Saturday, Sunday, or legal holiday, in which case the period continues to run until the next day that falls neither on a weekend nor a holiday. The application note to the 2009 amendment to Rule 33(b)(2) likewise states that this 14-day period includes intermediate Saturdays, Sundays, and legal holidays.

Defendant recognizes his Motion is grounded on reasons other than newly discovered evidence. The 14-day clock therefore began to run after jury rendered its verdict on December 21. Applying the Rule 45 rubric for computing time, Defendant's deadline to file his Motion was


January 4, 2023. Defendant did not file his Motion until five days later, on January 9, 2023. No extension of time to file was requested or granted.

A motion under Rule 33 “may still be heard upon a showing, and subsequent finding, of excusable neglect.”[5] But Defendant does not attempt to make such a showing here. In fact, he has not even made a timely reply to the Government's response to his Motion. The Court is therefore not inclined to find that excusable neglect should permit an extension of time in this case. Defendant's Motion is denied as untimely.

B. The Court did not err as argued by Defendant.

Even if Defendant's Motion was timely, his substantive arguments do not persuade the Court that a new trial is in interest of justice. The three purported errors raised by Defendant are without basis in the law, as discussed in detail below.

1. The Court properly excluded references to potential forfeiture from the guilt phase of Defendant's trial.

Defendant first contends that the Court erred when it declined to...

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