Filed: Jan. 10, 2018
Latest Update: Jan. 10, 2018
Summary: ORDER RE: MOTION FOR NEW TRIAL WILLIAM B. SHUBB , District Judge . Before the court is defendant Donald M. Parker's Motion for New Trial brought under Federal Rule of Criminal Procedure 33 ("Rule 33"), which claims ineffective assistance of trial counsel. (Docket No. 678.) The court notes that the jury issued its verdict on March 11, 2014. (Docket No. 264.) The court also notes that defendant joined co-defendant Andrew B. Katakis' Motion for New Trial, which the court denied on May 11, 2017
Summary: ORDER RE: MOTION FOR NEW TRIAL WILLIAM B. SHUBB , District Judge . Before the court is defendant Donald M. Parker's Motion for New Trial brought under Federal Rule of Criminal Procedure 33 ("Rule 33"), which claims ineffective assistance of trial counsel. (Docket No. 678.) The court notes that the jury issued its verdict on March 11, 2014. (Docket No. 264.) The court also notes that defendant joined co-defendant Andrew B. Katakis' Motion for New Trial, which the court denied on May 11, 2017...
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ORDER RE: MOTION FOR NEW TRIAL
WILLIAM B. SHUBB, District Judge.
Before the court is defendant Donald M. Parker's Motion for New Trial brought under Federal Rule of Criminal Procedure 33 ("Rule 33"), which claims ineffective assistance of trial counsel. (Docket No. 678.) The court notes that the jury issued its verdict on March 11, 2014. (Docket No. 264.) The court also notes that defendant joined co-defendant Andrew B. Katakis' Motion for New Trial, which the court denied on May 11, 2017.1 (Docket No. 637.) The court held a hearing on the Motion on January 8, 2018.
Rule 33 states that "[a]ny motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty," while all other motions for new trial "must be filed within 14 days after the verdict or finding of guilty." These time limits are jurisdictional, and the court is "not at liberty to disregard the explicit directive of Rule 33 and exempt from the [14] day limitation claims of ineffective assistance of counsel based upon facts known to the accused at the time of trial." United States v. Lara-Hernandez, 588 F.3d 272, 275 (9th Cir. 1978) (discussing prior 7-day limitation of Rule 33). Whether the 14-day or 3-year limitation of Rule 33 applies, defendant's motion is untimely and must be denied on that ground, even assuming defendant may bring a second motion for new trial.2 Notably, defendant has not shown why he was unable to bring this motion earlier, considering that he received new counsel in late 2015.3
Moreover, defendant's motion fails on the merits, as he has neither shown that his counsel's performance was deficient nor that he was prejudiced by any purported deficiencies. See Strickland v. Washington, 466 U.S. 668, 687-97 (1984). The court's own observation of defendant's trial counsel confirms that his counsel performed competently and reasonably, given the facts of the case. Further, defendant's own notebook and testimony, along with other evidence introduced at trial, was strong evidence that defendant committed all elements of the antitrust conspiracy with which he was charged. Had his trial counsel presented the evidence defendant now argues should have been presented at trial, the court cannot imagine that the result would have been any different. Thus, defendant suffered no prejudice.
IT IS THEREFORE ORDERED that defendant Parker's Motion for New Trial (Docket No. 678) be, and the same hereby is, DENIED.
