United States v. Elcock
| Decision Date | 05 August 2019 |
| Docket Number | Criminal Action No. 2017-0005 |
| Parties | UNITED STATES OF AMERICA and THE PEOPLE OF THE VIRGIN ISLANDS v. GILROY ELCOCK, Defendant. |
| Court | U.S. District Court — Virgin Islands |
Attorneys:
Rhonda Williams-Henry, Esq.,
St. Croix, U.S.V.I.
For the Government
Renee D. Dowling, Esq.,
St. Croix, U.S.V.I.
THIS MATTER comes before the Court on Defendant Gilroy Elcock's ("Defendant") "Rule 29 Motion for Judgment of Acquittal or For A New Trial" ("Rule 29/33 Motion") (Dkt. No. 97), and the Government's "Opposition to Defendant's Motion for Judgment of Acquittal" (Dkt. No. 99). For the reasons discussed below, the Court will deny Defendant's Motion.
Defendant was accused of having sexual relations with two minor female sisters while he was in a relationship with the girls' mother and living in their home.1 On February 21, 2017, Defendant was charged in a twelve count Indictment. (Dkt. No. 1).2 Counts 1, 3, 5, 7, 9, and 11 ofthe Indictment charged Defendant with multiple counts of Production of Child Pornography, in violation of 18 U.S.C. § 2251(a); Count 6 charged Defendant with Possession of Child Pornography, in violation 18 U.S.C. § 2252(a)(4)(B); Counts 2 and 4 charged Defendant with Aggravated Rape First Degree, in violation of 14 V.I.C. § 1700(a); and Counts 8, 10 and 12 charged Defendant with Aggravated Rape Second Degree, in violation of 14 V.I.C. § 1700a(a). Id.3
While the case was proceeding under an earlier filed Information, the Court initially scheduled trial in this matter for January 23, 2017, with pretrial motions due by December 26, 2016. (Criminal Action No. 2016-0027, Dkt. No. 26). On January 13, 2017, the Court entered a Scheduling Order continuing the trial to February 10, 2017. (Id. at Dkt. No. 30).4 At the time that the Scheduling Order was entered, there were no pretrial motions pending in the case—the deadlines for pretrial motions having expired on December 26, 2016. A Trial Management Order was entered on January 18, 2017 with trial-related deadlines, including January 23, 2017 as the deadline for motions in limine. (Id. at Dkt. No. 32).
On January 23, 2017, Defendant filed what was styled as a Motion in Limine seeking to exclude photos and videos obtained by Homeland Security Investigations ("HSI") from Defendant's electronic devices without a search warrant. (Id. at Dkt. No. 36). The Court determined that, although Defendant's filing was styled as a Motion in Limine, it was in reality a motion to suppress evidence that required an evidentiary hearing, and which should have been filed by the December 26, 2016 deadline for pretrial motions. (Id. at Dkt. No. 41 at 2). In any event, the Court exercised its discretion to consider the untimely motion. However, because the motion was filed too close to the trial date to permit briefing, an evidentiary hearing, and resolution by the Court, the Court determined that a continuation of the trial was necessary. Id. Accordingly, on January 26, 2017, the Court continued the trial pending further Order of the Court. Id. at 3.
On February 1, 2017, the above-referenced Indictment was filed, which increased the number of counts against Defendant from four to twelve. (Dkt. No. 1). Defendant was arraigned before the Magistrate Judge on February 2, 2017. (Dkt. No. 5). At the arraignment, the Magistrate Judge accepted Defendant's plea of not guilty and orally set a new pretrial schedule, including a deadline of February 21, 2017 for pretrial motions. Id. In addition, trial was scheduled for March 20, 2017. Id. The deputy clerk memorialized the schedule, including the pretrial motions deadline, in a docket entry along with the filing of the minute entry for the arraignment proceedings.5
On February 17, 2017, Defendant timely filed his Motion to Suppress in accordance with the new schedule. (Dkt. No. 11). The Motion to Suppress was essentially a mirror image of the document previously styled as a Motion in Limine that was filed on January 23, 2017. Following an evidentiary hearing on April 4, 2017, the Court denied Defendant's Motion to Suppress by Memorandum Opinion and Order entered on May 9, 2017. (Dkt. Nos. 31 and 32).
On May 15, 2017, the Court issued a Scheduling Order which set trial for July 24, 2017. (Dkt. No. 34). On June 27, 2017, the Government filed a motion to continue the trial because its case agent—Virgin Islands Police Department ("VIPD") Detective Vanessa Richardson—was unavailable to testify. (Dkt. No. 37). The Court granted the Government's motion over Defendant's opposition (Dkt. No. 48), and trial was continued to August 14, 2017. (Dkt. No. 49). On July 13, 2017, a new Trial Management Order was entered with trial-related deadlines. (Dkt. No. 50).
On July 24, 2017, the Government once again sought a continuation of trial, asserting that another critical witness—Special Agent Dennis Carter of the Department of Homeland Security ("SA Carter")—was unavailable. (Dkt. No. 59). The Magistrate Judge denied the request for a continuance. (Dkt. No. 67). The Government appealed the Magistrate Judge's decision (Dkt. No. 69) and, on July 31, 2017, the undersigned Judge set aside the Magistrate Judge's Order and continued the trial to August 21, 2017. (Dkt. No. 70). As a result of the new trial date, the Court entered a revised Trial Management Order on August 1, 2017, which pertained to the parties' remaining trial-related deadlines. (Dkt. No. 71).
On August 21, 2017, trial commenced with jury selection. (Dkt. No. 81). On August 22, 2017, the jury was sworn and opening statements were made. The Government called its first three witnesses, and they were examined. Approximately 10 minutes into the testimony of the Government's fourth witness—SA Carter—the Defense objected to a question by the Governmentpertaining to SA Carter's second forensic search of Defendant's electronic devices and moved to suppress SA Carter's testimony as it related to video evidence of rape and child pornography discovered during that search. In objecting, Defendant raised for the first time the argument that his consent to search his electronic devices did not extend to the second search conducted by SA Carter.6
The Court denied the motion to suppress as untimely. The Court noted that, in addition to the fact that it had already once before continued the trial to accommodate Defendant's first untimely filing, Defendant's second motion to suppress was not made by the start of trial as required by Rule 12. The Court also found that Defendant had offered no good cause to justify the untimeliness of Defendant's suppression motion. Thus, the trial proceeded forward.
The next day, on August 23, 2017, Defendant filed a Motion for Reconsideration requesting that the Court reconsider its ruling that Defendant's objection was untimely and consider his motion to suppress on the merits. (Dkt. No. 83 at 2).7 The Court denied Defendant's Motion for Reconsideration from the bench.
On August 24, 2017, at the conclusion of the Government's case-in-chief, Defendant made a Motion for Judgment of Acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure ("Fed.R.Crim.P."). On August 25, 2017, the Court granted in part and denied in part Defendant's Rule 29 Motion, dismissing Counts 8, 10, and 12 (Aggravated Rape Second Degree) for lack of sufficient evidence to sustain a conviction. (Dkt. No. 94). On the same day, the jury returned a verdict finding Defendant guilty on all other remaining counts. Id.
On November 27, 2017, Defendant filed the instant Motion, (Dkt. No. 97),8 which the Government opposed on December 11, 2017. (Dkt. No. 99).
In the present Rule 29/33 Motion, Defendant argues that he is entitled to either an acquittal or, in the alternative, a new trial because the District Court erred when it deemed his motion to suppress as untimely, thus overruling his objection to SA Carter's testimony at trial. (Dkt. No. 98 at 2). Defendant contends that by doing so, the Court did not give "due consideration" to the merits of his motion to suppress, in violation of his Fifth Amendment right to due process. (Dkt. No. 98 at 2).
As a preliminary matter, the Court notes that Defendant's two-page memorandum in support of the instant Motion provides scant analysis or authority for the relief that he seeks. Thisis, in and of itself, "sufficient to deny Defendant's request for a judgment of acquittal or the grant of a new trial." United States v. Savage, 2014 WL 4631976, at *2 (E.D. Pa. Sept. 17, 2014). In addition to the inadequacy of the Rule 29/33 Motion in this regard, the Motion also fails on the merits.
Rule 29 provides that "[i]f the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal." Fed.R.Crim.P. 29(c)(2). More specifically, "the Court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed.R.Crim.P. 29(a). When assessing motions under Rule 29, the Court must "review the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence." United States v. Wolfe, 245 F.3d 257, 261 (3d Cir. 2001).
In determining a Rule 29 motion, evidence is not viewed in a vacuum but in relation to the totality of the evidence elicited in a case. See United States v. Pavulak, 700 F.3d 651, 668 (3d Cir. 2012) () (quoting United States v. Starnes, 583 F.3d 196, 206 (3d Cir. 2009) (internal citation omitted)). Thus, "[t]he question is whether all the pieces of evidence against the defendant, taken together, make a strong enough case to let a jury...
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