United States v. Pole
| Decision Date | 07 December 2021 |
| Docket Number | Crim. Action 09-354 (EGS) |
| Parties | UNITED STATES OF AMERICA, v. NGOZI POLE, Defendant. |
| Court | U.S. District Court — District of Columbia |
UNITED STATES OF AMERICA,
v.
NGOZI POLE, Defendant.
Crim. Action No. 09-354 (EGS)
United States District Court, District of Columbia
December 7, 2021
MEMORANDUM OPINION AND ORDER
Emmet G. Sullivan United States District Judge
On February 1, 2011, Defendant Ngozi Pole (“Mr. Pole”) was convicted by jury of five counts of wire fraud in violation of 18 U.S.C. § 1343 and one count of theft of government property worth more than $1, 000 in violation of 18 U.S.C. § 641. See Verdict Form, ECF No. 54.[1] Mr. Pole appealed, and on December 20, 2013, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) remanded various claims of ineffective assistance of trial counsel, as well as the Court's restitution order, for further proceedings. See United States v. Pole, 741 F.3d 120, 124, 129 (D.C. Cir. 2013). The Court subsequently set a schedule for the parties to brief the issues that were remanded by the D.C. Circuit and scheduled an evidentiary hearing to take place on November 14, 2017. See Min. Order (May 26, 2017). Days before the evidentiary hearing was to
commence, however, Mr. Pole submitted a notice to the Court updating his plan for witnesses and evidence for the upcoming hearing, see Notice Regarding Nov. 14, 2017 Hearing, ECF No. 163; setting off a series of disputes between the parties regarding the proper scope of the evidentiary hearing and whether the Court had the authority to rule on certain of Mr. Pole's claims. See, e.g., Joint Status Report, ECF No. 176.
Pending before the Court is Mr. Pole's motion for a new trial, ECF No. 139; Mr. Pole's supplement to his motion for a new trial, ECF No. 168; and Mr. Pole's petition for a writ of coram nobis, ECF No. 169. The Court's immediate task is to resolve the parties' disputes prior to proceeding with the evidentiary hearing in this case. Upon consideration of the motions, the responses, and replies and surreplies thereto, the supplements, the applicable law, and the entire record, the Court concludes that it may consider the entirety of Mr. Pole's motion for a new trial during the upcoming evidentiary hearing, but it shall not consider the contents of Mr. Pole's supplement as it was untimely filed. The Court also DENIES Mr. Pole's petition for a writ of coram nobis.
I. Background
Following a ten-day jury trial in January 2011, Mr. Pole was convicted of five counts of wire fraud in violation of 18 U.S.C. § 1343 and one count of theft of government property
worth more than $1, 000 in violation of 18 U.S.C. § 641. See Verdict Form, ECF No. 54. The Court subsequently sentenced Mr. Pole to twenty months in prison, followed by three years of supervised release, and ordered him to pay $75, 042.37 in restitution. See J., ECF No. 102. Mr. Pole began serving his sentence on July 27, 2012; see Second Consent Mot. to Modify Conditions of Release to Allow Travel, ECF No. 111 at 1; and on April 19, 2016, the Court granted his motion for early termination of supervised release, Minute Order (Apr. 19, 2016).
Mr. Pole appealed his conviction, challenging three evidentiary rulings and arguing that he received ineffective assistance of counsel and that the Court miscalculated restitution. See Pole, 741 F.3d at 124. The specific ineffective assistance claims Mr. Pole raised on appeal are:
that [his] trial counsel should have (1) produced unredacted copies of Pole's budget memos; (2) “through documentary evidence and additional discovery or otherwise” demonstrated that “Pole routinely issued exit bonuses without specific chief of staff approval”; (3) “demonstrate[d] that [Mary Beth] Cahill[2]instructed Pole to spend the budget to zero, or to impeach her testimony that she did not do so”; and (4) attempted to impeach [Danica] Petroshius by introducing evidence about employee bonuses she denied issuing and by “question[ing] Petroshius regarding a memoranda
from Pole” containing budgetary information she claimed never to have received
Id. at 126. On December 20, 2013, the D.C. Circuit “reject[ed] Pole's evidentiary challenges, remand[ed] Pole's ineffective assistance claims, and vacate[d] and remand[ed] the restitution order for further proceedings consistent with [its] opinion.” Id. at 129.
On February 19, 2014, this Court issued an Order directing the parties to file a joint status report, including recommendations for how to proceed. Minute Order (Feb. 19, 2014). Following multiple continuances to allow defense counsel additional time to obtain documents, Mr. Pole filed a motion for a new trial on May 4, 2015. See Def.'s Mot. New Trial, ECF No. 139. In Mr. Pole's motion, he raised the ineffective assistance of trial claims that had been remanded by the D.C. Circuit, as well as several new claims of ineffective assistance of trial counsel. The ineffective assistance claims asserted for the first time in the motion are that trial counsel (1) should have presented a good faith defense but did not; (2) failed to object to the admission of Mr. Pole's offer to repay unapproved bonuses; (3) failed to object to the admission and use of Mr. Pole's oath of office; (4) failed to call James McCarthy to testify that he did not consider Mr. Pole a friend; and (5) failed to call Kathleen Kruse to demonstrate that she informed Danica Petroshius of a large bonus she received. See id. The government filed its
opposition to Mr. Pole's motion for a new trial on June 15, 2015, see Gov't's Opp'n Mot. New Trial, ECF No. 142; and Mr. Pole filed his reply brief on August 3, 2015. See Def.'s Reply New Trial, ECF No. 144. The government filed a surreply regarding United States v. Udo, 795 F.3d 24 (D.C. Cir. 2015), on May 3, 2016.
The Court scheduled an evidentiary hearing on Mr. Pole's motion for a new trial on November 14, 2017, see Min. Order (May 26, 2017); and the parties submitted a joint status report on October 18, 2017 regarding the scope of the hearing, including the parties' lists of exhibits and the anticipated witnesses to be called, see Joint Status Report, ECF No. 159. However, on November 10, 2017, Mr. Pole filed a notice to the Court updating his plan for witnesses and evidence for the upcoming hearing. See Notice Regarding Nov. 14, 2017 Hearing, ECF No. 163. The notice informed the Court that Mr. Pole “anticipate[d] calling one or more of the following additional witnesses: Adrian St. Hill (co-counsel with Rudolph Acree at Mr. Pole's trial), Deborah Mayer (the lead prosecutor at trial), Shawn Allen (defense investigator), and Mr. Pole.” Id. at 1. These additional witnesses had not been identified in the October 18, 2017 joint status report. Id. The government filed its response to the notice the following day. See Gov't's Response, ECF No. 164. In its response, the government stated that it had “reason
to believe that one or more of the additional witnesses the defense seeks to call at the evidentiary hearing would testify about matters related to ineffective assistance of counsel claims asserted for the first time on remand.” Id. at 1. The government argued that those claims not raised on direct appeal are outside the scope of the remand and should be dismissed. Id. at 3. Further, Mr. Pole could not raise these newly asserted ineffective assistance of counsel claims in a collateral attack under 28 U.S.C. § 2255 because his supervised release had been terminated and he was no longer in custody. Id. at 5. Mr. Pole filed his reply to the government's response on November 21, 2017. See Def.'s Reply Gov't's Response, ECF No. 165.
On January 16, 2018, “[p]ending a decision from the Court” on Mr. Pole's November 10, 2017 notice (ECF No. 163), Mr. Pole filed a supplement to his motion for a new trial based on newly discovered evidence of prosecutorial misconduct. See Def.'s Suppl. Mot. New Trial, ECF No. 168. According to Mr. Pole, the “newly discovered evidence” demonstrated prosecutorial misconduct warranting a new trial because the evidence “strongly suggests that the government made misrepresentations to the Court and to Mr. Pole's trial counsel - both before and during the trial - about its knowledge of material exculpatory information” within budgetary memoranda that were used at trial. Id. at 1-2. Mr. Pole simultaneously filed a petition for a writ
of coram nobis “on the grounds that he received constitutionally ineffective assistance of counsel in violation of the Sixth Amendment and/or that the government committed prosecutorial misconduct before and during Mr. Pole's trial.” See Def.'s Pet. Writ Coram Nobis, ECF No. 169. The government filed its opposition to Mr. Pole's supplemental motion and petition for a writ of coram nobis on February 21, 2018. See Gov't's Opp'n Suppl. Mot. & Coram Nobis, ECF No. 170. Mr. Pole filed his reply on March 14, 2018. Def.'s Reply Suppl. Mot. & Coram Nobis, ECF No. 173.
On December 18, 2019, Mr. Pole filed a supplemental notice in support of his motion for a new trial and petition for writ of coram nobis including additional claims that he “continues to suffer adverse consequences as a result of [his] felony conviction.” See Def.'s Suppl. Notice, ECF No. 174.
On February 26, 2020, the parties submitted a joint status report to the Court requesting a status conference in order to determine the parameters of the evidentiary hearing on Mr. Pole's motions. See Joint Status Report, ECF No. 176. The Court declined to schedule a status conference, see Min. Order (Jan. 24, 2021); and instead addresses the parties' arguments below.
II. Analysis
A. The Court May Consider the Merits of Mr. Pole's Motion for a New Trial
The government first argues that Mr. Pole's additional claims that were not raised on direct appeal are barred by the mandate rule doctrine because they are outside the scope of the D.C. Circuit's remand. See, e.g., Gov't's Response, ECF No. 164 at 3-5. The government also argues that the Court should deem Mr...
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