USA v. Boston

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:18-CR-00095-RJC-DCK
THIS MATTER is before the Court on the defendant’s Motion to Set Aside
the Verdict and to Dismiss due to Duplicity of Count One, (Doc. No. 92), and the
government’s response, (Doc. No. 95).
A jury convicted the defendant of, among other things, trafficking a minor
between the age of fourteen and eighteen for a commercial sex act, in violation of 18
U.S.C. § 1591(a)(1) and (b)(2), on October 11, 2018. (Doc. No. 68: Verdict at 1 (Count
One)). On February 16, 2020, the defendant filed the instant motion claiming the
indictment impermissibly alleged a second offense in the same count of trafficking a
person by means of force, in violation of 18 U.S.C. § 1591(a)(1) and (b)(1). (Doc. No.
92 at 1). Rule 12(b)(3)(B)(i) of the Federal Rules of Criminal Procedure requires
that such a claim be raised prior to trial. The defendant asserts his motion is not
untimely, or there is good cause to excuse his untimeliness, because the lawyer who
filed the motion was not appointed until after trial. (Doc. No. 92 at 1). The
appointment of new counsel does not reset the deadline in Rule 12 nor does it
establish good cause to waive it. United States v. Santana-Dones, 920 F.3d 70, 81
(1st Cir. 2019) (“allowing new counsel to reopen an expired deadline in order to
pursue strategic options forgone by prior counsel would put a premium on changing
USA )
)
v. ) ORDER
)
XAVER MONTEZ BOSTON )
)
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counsel and unfairly advantage the defendant”), cert. denied, 140 S. Ct. 257 (2019).
Therefore, the motion will be dismissed as untimely.
Even if the Court were to consider the merits of the defendant’s duplicity
claim, it would be denied. Section 1591(b) does not create new crimes, but rather
“specifies the penalties for each of the crimes set out in (a).” United States v. Todd,
627 F.3d 329, 334 (9th Cir. 2010). Here, Count One alleged a single § 1591(a)(1)
offense with two possible penalties: fifteen years to life under (b)(1) for knowing, or
recklessly disregarding the fact, that means of force would be used to cause the
person to engage in a commercial sex act and ten years to life under (b)(2) for
knowing, or recklessly disregarding the fact, that a minor would be caused to
engage in a commercial sex act. (Doc. No. 1: Indictment at 3). Consistent with
Alleyne v. United States, 570 U.S. 99, 103 (2013), the jury was asked to determine
whether the government had proved beyond a reasonable doubt the facts necessary
to trigger one mandatory-minimum-sentence provision or the other, or both. (Doc.
No. 88: Trial Tr. at 507). The jury’s verdict clearly shows it found the facts
necessary to trigger the (b)(2) penalty based on the victim’s age, but not the (b)(1)
penalty based on the use of force. (Doc. No. 68: Verdict at 1). Therefore, the
defendant’s duplicity claim is without merit.
The defendant is also not entitled to a new trial under Rule 33(a), which
allows a court to vacate a judgment and grant a new trial if the interest of justice so
requires. Such a motion based on grounds other than newly discovered evidence
must be filed within fourteen days of the verdict or finding of guilty. Fed. R. Crim.
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P. 33(b)(2). Here, current counsel essentially faults former counsel for not raising
the issue she “discovered” after her appointment. (Doc. No. 92: Motion at 4). The
Fourth Circuit has definitively stated that a motion for new trial based on
ineffective assistance of counsel must be brought within the time limits in Rule 33.
United States v. Smith, 62 F.3d 641, 648, 650-51 (4th Cir. 1995). The appellate
court continues to apply Smith to affirm the denial of untimely Rule 33 motions. See
e.g. United States v. Burgess, 788 F. App’x 185, 186 (4th Cir. 2019) (“The motion,
therefore, was untimely, and we affirm the district court’s denial on the ground that
it lacked jurisdiction to hear the motion.”); United States v. Gooding, 594 F. App’x
123, 127 n. 4 (4th Cir. 2014) (motion for new trial based on ineffective assistance
“must be filed” within fourteen days of verdict); United States v. Barbee, 524 F.
App’x 15, 17 (4th Cir. 2013) (“[T]he time limits set forth in Rule 33 are
jurisdictional.”).
Here, the defendant admits his motion for new trial under Rule 33 is
untimely. (Doc. No. 92: Motion at 6). Because the government objects on that basis,
(Doc. No. 95: Response at 6-7), the Court must dismiss the motion as time-barred.
Eberhart v. United States, 546 U.S. 12, 17-18 (2005) (finding government waived
timeliness objection to Rule 33 motion by not raising it, but holding that “district
courts must observe the clear limits of the Rules of Criminal Procedure when they
are properly invoked”); see also United States v. Hyman, 884 F.3d 496, 499 (4th Cir.
2017) (under Eberhart, when the government objects to untimely filing, the court’s
duty to dismiss is mandatory).
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Even if the Court were to consider the extending the time under Rule
45(b)(1)(B), it would find that the defendant has not established excusable neglect
in this case. Current counsel was appointed on September 24, 2019; however, the
instant motion was not filed until February 16, 2020. There are no facts alleged to
justify the sixteen month delay in challenging the sufficiency of an indictment
returned in 2018. Accord United States v. Jones, 2015 WL 2094120, *2 (D. Md. May
5, 2015) (finding no excusable neglect where motion was filed thirteen months after
verdict and eight months after appointment of new counsel), aff’d 658 F.3d 188, 191
(4th Cir. 2016). Although the defendant has not met the requirements to seek a
new trial under Rule 33, he will have the opportunity to present his claim of
ineffective assistance on direct appeal and, if necessary, on collateral attack under
28 U.S.C. § 2255. Smith, 62 F.3d at 651.
IT IS, THEREFORE, ORDERED that the defendant’s Motion to Set Aside,
(Doc. No. 92), is DISMISSED.
Signed: March 26, 2020
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