United States v. Nix, 6:14-CR-06181 EAW
| Decision Date | 20 February 2018 |
| Docket Number | 6:14-CR-06181 EAW |
| Parties | UNITED STATES OF AMERICA, v. MATTHEW NIX and EARL McCOY, Defendants. |
| Court | U.S. District Court — Western District of New York |
Presently before the Court are two motions filed by defendants Earl McCoy ("McCoy") and Matthew Nix ("Nix") (collectively, "Defendants") seeking reconsideration of the Court's Decision and Order, dated August 24, 2017 ("Rule 33 Denial Order"), in which the Court denied Defendants' motions for a new trial pursuant to Federal Rule of Criminal Procedure 33 based on Juror No. 3's alleged bias. (See Dkt. 417; Dkt. 418). Through this second set of motions for reconsideration of the Rule 33 Denial Order, Defendants request vacatur of the judgment and a new trial, or, alternatively, a continuation of the evidentiary hearing regarding Juror No. 3's qualifications to sit on the jury. (See Dkt. 417 at 1; Dkt. 418 at 1). The Government opposes Defendants' motions. (Dkt. 425). For the reasons set forth below, the Court denies Defendants' motions in their entirety.
The facts relevant to the issue of Juror No. 3's alleged bias are set forth in detail in the Rule 33 Denial Order, with which familiarity is assumed. (See Dkt. 382). The Court provides only a summary of those facts, as well as additional background information as relevant to this motion.
In brief, Juror No. 3, an African American male, was the sixth prospective juror called by the Court's deputy clerk during jury selection on February 13, 2017. (Dkt. 328 at 29). Juror No. 3 is a convicted felon, but he failed to disclose his criminal history during jury selection. Juror No. 3's felon status was discovered only after the verdict, which was returned on March 17, 2017. (Dkt. 266; Dkt. 267). Defendants both moved for a new trial pursuant to Rule 33 and argued, inter alia, that Juror No. 3's felon status destroyed the impartiality of the jury. (Dkt. 286; Dkt. 289).
On March 30, 2017, counsel for Nix made a Freedom of Information Law ("FOIL") request "for any and all criminal records and reports to the Monroe County District Attorney's Office concerning Juror #3 . . . and only received one page which did not concern the incident, on or about June 7th, 2017." (Dkt. 417-1 at ¶ 19).
At an initial appearance regarding Defendants' post-verdict motions on May 15, 2017, the Court concluded that it must hold an evidentiary hearing concerning Juror No. 3's qualifications to serve on the jury. (See Dkt. 327). The Court held an evidentiary hearing on June 12 and 14, 2017, during which Juror No. 3 testified, confirmed his felon status, and was examined by the Court and counsel. (Dkt. 348; Dkt. 353). On the first day of the evidentiary hearing, Juror No. 3 was asked if he recalled being arrested for a burglary of a home in May of 1989, and he answered that he did not recall. (Dkt. 358 at 84).1
During the second day of the evidentiary hearing, Assistant District Attorney Stephen O'Brien ("ADA O'Brien") appeared in response to a subpoena that counsel for Nix had served upon the Monroe County District Attorney's Office ("MCDAO") on June 13, 2017, one day earlier. (Dkt. 359 at 144). The subpoena sought production of certain documents, including those related to a May 1989 burglary for which Juror No. 3 was allegedly charged but not convicted. ADA O'Brien moved to quash the subpoena, arguing that it was overbroad. (Id. at 144). ADA O'Brien also informed the Court that the MCDAO had been unable to locate any file pertaining to Juror No. 3 that would respond to the subpoena. (Id. at 144-47).2 ADA O'Brien stated that the MCDAO employed a contractor to house older files, and the contractor was unable to locate the requested file pertaining to Juror No. 3. (Id. at 145). While there was a possibility that the file was misfiled, the MCDAO would have to pay a fee for the contractor to sift through thousands of individual boxes of files—with, of course, no guarantee that the file would be located. (Id. at 146-47). The Court quashed the subpoena, determining that it was overbroad, that the MCDAO's reasonable efforts to search for the requested records had yielded no results, and that it would be unnecessarily burdensome to require a search of each box that the contractor maintained. (Id. at 151). The evidentiary hearing concluded on June 14, 2017.
On June 27, 2017, Nix filed a motion requesting the issuance of post-hearing subpoenas to the Monroe County Clerk and the Rochester City Court for records of the May 1989 burglary. (Dkt. 354). Nix stated that "the juror witness would not have to be recalled" if the subpoenas were issued. (Id. at ¶ 11). The Government opposed the motion. (Dkt. 361). At an appearance before the Court on July 6, 2017, the Court noted that the requested information was "probably outside the scope of a proper judicial subpoena" (Dkt. 421 at 11), and that "the application is untimely" (id. at 12). Nevertheless, the Court permitted the subpoenas to issue in order to allow the defense to explore whether there were any records concerning the May 1989 burglary. (Id. at 13).3
On August 24, 2017, after the parties had filed post-hearing submissions (Dkt. 363; Dkt. 369; Dkt. 370; Dkt. 371; Dkt. 372), the Court issued the Rule 33 Denial Order, which denied Defendants' Rule 33 motions to the extent that those motions were based upon Juror No. 3's alleged bias. (Dkt. 382). In the Rule 33 Denial Order, the Court concluded that Juror No. 3's criminal history—including the alleged arrest for burglary of a home—did not justify a finding that Juror No. 3 was biased against Defendants:
Additionally, the information disclosed about Juror No. 3's criminal history does not support an inference of bias against Defendants. The fact that Juror No. 3 has been previously arrested and convicted of two prior felonies—including convicted for burglarizing a clothing store and possibly arrested for burglarizing a home—does not justify a finding of bias against Defendants, and Defendants cannot articulate any reasonable basis for concluding otherwise.
(Id. at 61-62 (emphasis added)). In so concluding, the Court specifically noted Juror No. 3's inability to recall the burglary arrest in May of 1989:
There is some evidence in the record that Juror No. 3 may have been arrested for burglarizing a home in May of 1989 (when he was 19 years old). However, Juror No. 3 had no recollection of this alleged incident, and there is no evidence that he was convicted of this crime.
(Id. at 61 n.30 (citing Dkt. 358 at 84)).
On September 1, 2017, Defendants filed a motion that this Court construed as seeking reconsideration of the Rule 33 Denial Order. (Dkt. 385). Defendants took issue with the Court's observation, set forth in the Rule 33 Denial Order, that Juror No. 3 had left the courtroom during jury selection while the Court was informing the jurors about certain housekeeping matters. (Dkt. 382 at 55). This Court denied reconsideration in a Decision and Order dated September 25, 2017. (Dkt. 394).
On October 17, 2017, this Court sentenced Nix principally to 155 years' imprisonment and McCoy principally to 135 years' imprisonment. (Dkt. 405; Dkt. 406). Judgment was entered as to both Nix and McCoy on October 24, 2017 (Dkt. 405; Dkt. 406), and Defendants timely appealed their convictions and sentences (Dkt. 407; Dkt. 408). Defendants' appeals remain pending.
On October 25, 2017, counsel for Nix apparently sent a FOIL request to Monroe County, seeking Juror No. 3's criminal records. (Dkt. 417-2 (Letter Response to FOIL Request); Dkt. 418 at ¶ 6). On November 27, 2017, Monroe County produced the requested records. (Dkt. 417-2 (Letter Response to FOIL Request); Dkt. 418 at ¶ 6).
On December 15, 2018, Defendants filed the instant motions for reconsideration of the Court's Rule 33 Denial Order. (Dkt. 417; Dkt. 418). On January 5, 2018, the Government filed its response in opposition to Defendants' motions (Dkt. 425), and on January 12, 2018, Defendants filed their replies in support of their motions (Dkt. 443; Dkt. 443). The Court deemed the motion submitted without oral argument. (See Dkt. 419).
Despite the pendency of Defendants' appeals, this Court may entertain and deny—but not grant—a Rule 33 motion or motion for reconsideration of a Rule 33 motion. See United States v. Camacho, 302 F.3d 35, 36-37 (2d Cir. 2002) (); see also Fed. R. Crim. P. 33(b)(1) ().
Defendants move for reconsideration of the Rule 33 Denial Order. (See Dkt. 417; Dkt. 418). Although the Federal Rules of Criminal Procedure do not specifically recognize motions for reconsideration, such motions "have traditionally been allowed within the Second Circuit." United States v. Yannotti, 457 F. Supp. 2d 385, 388 (S.D.N.Y. 2006). District courts "have applied the applicable civil standard to such motions in criminal cases." United States v. Larson, No. 07-CR-304S, 2013 WL 6196292, at *2 (W.D.N.Y. Nov. 27, 2013).
The standard for granting . . . a motion [for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Common grounds for reconsideration include "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956...
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