RICHARD A. SCHELL, District Judge.
The following are pending before the court:
Having considered the motion and the response, the court finds that the motion should be denied.
A jury found the Defendant guilty on October 20, 2014 of conspiracy to possess with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine and/or 50 grams or more of methamphetamine (actual). The court sentenced the Defendant on September 16, 2015 to life imprisonment. On September 22, 2015, the Defendant filed a notice of appeal, appealing his conviction and sentence to the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit affirmed the judgment of this court on March 27, 2017.
On October 3, 2016, the Defendant filed a motion for new trial (docket entry #600) that is identical to the motion currently pending before the court. The Government's prior response (docket entry #602) is substantially similar to the response currently pending before the court. Although the court denied the Defendant's prior motion for new trial, the court did not reach the merits of the Defendant's motion. In the court's October 7, 2016 order, the court stated as follows:
ORD. DENYING DEF. MTN. FOR NEW TRIAL, Dkt. #603, pp. 1-2.
The Defendant is once again moving the court for a new trial "as to sentencing" based on newly discovered evidence. In his motion for new trial, the Defendant notes that prior to trial, the Government notified the Defendant of its intention to seek an increased sentence based on the Defendant's two prior state felony drug convictions. The Government notified the Defendant that the enhancement would result in a statutorily mandated sentence of life imprisonment without release. See 21 U.S.C. § 841(B)(1)(a). The Defendant now argues that his two prior state felony drug convictions should have been treated as one conviction rather than two. The Defendant's first felony drug offense occurred on July 3, 1994. The Defendant's second felony drug offense occurred on December 5, 1995. On September 25, 1996, the State of Texas filed its "Notice of Consolidation and Joinder of Prosecution," consolidating and joining the two felony offenses for trial pursuant to Section 481.132 of the Texas Health and Safety Code. A jury ultimately found the Defendant guilty of both offenses and the state court sentenced the Defendant to 15 years imprisonment for each offense, the sentences to be served concurrently. The Defendant subsequently appealed his convictions to the Second District Court of Appeals in Fort Worth. On October 29, 1998, the Second District Court of Appeals found, in pertinent part, as follows:
TEX. HEALTH & SAFETY CODE ANN. § 481.132(b) (Vernon 1992) provides:
Jurdi v. State, 980 S.W.2d 904, 908 (Tex. App.-Fort Worth 1998, pet. ref'd).
In his motion for new trial, the Defendant states that he did not argue at sentencing that his two prior state felony convictions resulted from the same criminal episode because counsel for the Defendant did not discover the documents detailing the same until after sentencing. The Defendant now essentially argues, however, that the Defendant's two prior state felony convictions should be considered as not only a single criminal episode, but also a single crime. As such, the Defendant's punishment range would likely be 360 months to life rather than life imprisonment.
The Defendant is moving for a new trial pursuant to Rule 33(b)(1) of the Federal Rules of Criminal Procedure, which provides as follows:
"Rule 33 permits the district court to vacate judgment and grant a new trial `if the interest of justice so requires.'" United States v. Wall, 389 F.3d 457, 466 (5th Cir. 2004), citing FED. R. CRIM. P. 33; United States v. McBride, 862 F.2d 1316, 1319 (8th Cir. 1988) ("the interest of justice standard `requires the district court to balance the alleged errors against the record as a whole and evaluate the fairness of the trial.'"). "However, Rule 33 divides motions for new trial based on the interest of justice into two different subcategories: (1) motions based on newly discovered evidence; and (2) motions based on `other grounds.'" Id. "The former may be brought within three years of the verdict or finding of guilt, while the latter must be brought within [14] days of the verdict or finding of guilt." Id.
Generally, a motion for new trial should not be granted "unless there would be a miscarriage of justice or the weight of evidence preponderates against the verdict." Id. (citation omitted). "A new trial is granted only upon demonstration of adverse effects on substantial rights of a defendant." Id., citing United States v. Rasco, 123 F.3d 222, 228 (5th Cir. 1997).
Here, the Defendant is seeking a new trial as to sentencing based on newly discovered evidence.
It is undisputed that no later than October 29, 1998, the day the Second District Court of Appeals issued its opinion that the Defendant's two prior state felony convictions resulted from the same criminal episode, the Defendant was aware of the argument that he is belatedly asserting now. Accordingly, the evidence was not newly discovered or unknown to the Defendant at the time of sentencing.
The Defendant was aware at his sentencing hearing on September 16, 2015 that the Second District Court of Appeals issued an opinion on October 29, 1998 that the Defendant's two prior state felony convictions resulted from the same criminal episode. The failure of the Defendant to discover the same was due to the Defendant's own lack of diligence.
Based on just these two of the five relevant factors, the Defendant has failed to demonstrate that he is entitled to a new trial on sentencing. Moreover, the Defendant's argument is misplaced. The Texas statute that permits prosecution in a single criminal action for the repeated commission of the same or similar offense refers merely to the "same criminal episode." That statute does not condense those "same or similar offenses" committed sequentially into a single offense. They are, and were, separate crimes for sentencing enhancement purposes. Based on the foregoing, Defendant Jay Jurdi's motion for new trial (docket entry #609) is hereby
IT IS SO ORDERED.