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United States v. Maes

United States District Court, S.D. Mississippi, Southern Division

November 16, 2018

UNITED STATES OF AMERICA
v.
MICHAEL MAES

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT MICHAEL MAES' [157] MOTION FOR JUDGMENT OF ACQUITTAL OR ALTERNATIVELY, MOTION FOR NEW TRIAL PURSUANT TO RULES 29 AND 33 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE

          HALIL SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is the Motion [157] for Judgment of Acquittal or Alternatively, Motion for New Trial Pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure filed by Defendant Michael Maes. This Motion is fully briefed. After considering the Motion, the record as a whole, and relevant legal authority, the Court finds that the Motion [157] for Judgment of Acquittal or Alternatively, Motion for New Trial should be denied. Defendant is not entitled to a judgment of acquittal or a new trial.

         I. BACKGROUND

         A. Maes' jury trial

         On February 22, 2017, a federal grand jury returned a 10-count First Superseding Indictment [71][1] against Defendant Michael Maes (“Defendant” or “Maes”) and three co-Defendants. After Maes' co-Defendants entered into plea agreements with the Government, the Grand Jury returned a nine-count Second Superseding Indictment [136] against Maes alone. Count 1 of the Second Superseding Indictment [136] charged Maes with conspiring to possess with intent to distribute 50 grams or more of actual methamphetamine, in violation of Title 21, United States Code Sections 841(a)(1), 841(b)(1)(A), and 846. 2d Superseding Indictment [136] at 1. Count 2 charged that Maes did knowingly and intentionally attempt to possess with intent to distribute 50 grams or more of actual methamphetamine, in violation of Title 21, United States Code, Sections 846 and 841(b)(1)(A), and Title 18 United States Code, Section 2. Id.

         Count 3 charged Maes with knowingly conspiring to commit offenses against the United States in violation of Title 18, United States Code, Section 1956, specifically conducting and attempting to conduct financial transactions affecting interstate commerce and foreign commerce, which transactions involved the proceeds of specified unlawful activity. Id. at 1-2. The specified unlawful activity was the distribution of methamphetamine, a Schedule II controlled substance. Id. at 2. Count 3 further charged that while conducting and attempting to conduct such financial transactions, Maes knew that the property involved in the financial transactions represented the proceeds of some form of unlawful activity, in violation of Title 18, United States Code, Section 1956(a)(1)(B)(I). Id. Counts 4 through 9 charged Maes with separate money laundering offenses in violation of Title 18 United States Code Sections 1956(a)(1)(B)(i) and 2. Id. at 3-6.

         A jury trial on the charges against Maes commenced on September 17, 2018, and continued through September 21, 2018. After the Government rested its case-in-chief, Maes moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. The Court denied the Motion because it was of the opinion that, viewing all of the evidence in the light most favorable to the Government, the evidence was sufficient to sustain a conviction beyond a reasonable doubt as to each count of the Indictment.

         At the close of trial, the jury deliberated on September 21 and 22, 2018. On the morning of September 22, 2018, the jury informed the Court that it had reached a verdict. As the Court was preparing to return the jury to the courtroom to announce the verdict, Maes through his counsel raised an issue concerning Maes' transport to the courthouse that morning by the Stone County Sheriff's Department in a passenger transport van, and moved for a mistrial. According to Maes' counsel, the marked transport van remained parked at the sally port entrance of the courthouse as the jurors approached the courthouse, buzzed for entry at a separate courthouse service door, and waited to enter for a period of one to five minutes. Even though Maes admittedly remained inside the van the entire time, his counsel asserted that the jurors could see his shackles and his prison uniform.

         The Deputy United States Marshal assigned to the case reported on the record that the van was waiting until someone inside the courthouse was available to open the sally port door for the van to enter, and that at no time did Maes exit the van while it was waiting outside the entrance to the sally port. The Deputy Marshal further advised that the van windows were tinted, and supplied photographs taken of the van that day, which the Court made part of the record as Exhibit “C-1.” The Court reviewed these photographs and confirmed on the record that the windows were tinted, so much so that it was virtually impossible to see inside the passenger compartment of the van, or to even see inside the driver's side window. See Ex. “C-1.”

         The Court Security Officer who escorted the jurors into the courthouse that morning also confirmed on the record that he saw the transport van waiting outside the north side of the courthouse. However, given that heavy rain was falling at the same time, and that the windows of the vehicle were black and opaque, the Officer stated that when he looked at the van from the jurors' location he could not see inside and could not even ascertain whether the transport drivers were sitting in the van. Based on the foregoing, the Court determined that the jurors could not have seen, and did not see, Maes in his shackles or prison uniform.

         Even if they had, the Court reviewed Fifth Circuit authority on the subject and determined Maes had not shown that the jury's brief and inadvertent exposure to Maes, if any, during routine security measures of transporting him into the courthouse in shackles and a prison uniform was so inherently prejudicial as to warrant a mistrial. See United States v. Diecidue, 603 F.2d 535, 549 (5th Cir. 1979); see also United States v. Wilson, 73 Fed.Appx. 78 (5th Cir. 2003). Indeed, Maes himself and his counsel had each brought the fact of his incarceration to the jury's attention several times during the trial. This further militated against declaring a mistrial.

         After the Court had resolved Maes' ore tenus motion, and as it was about to bring the jury into the courtroom to receive the verdict, Maes through his counsel then asserted an additional claim, that the two guards seated in the front of the transport van had engaged in some type of physical altercation between themselves while they were waiting for the sally port door to open, also purportedly in view of the jurors. Maes' counsel argued that this might have created an impression that they were fighting with Maes. Again, the Court Security Officer informed the Court that the van's windows were so dark that no one could have seen any persons inside the van, including the drivers. The Court confirmed this based upon its review of Exhibit “C-1" and again denied Maes' request for a mistrial.

         Moments later, the jury returned a verdict of guilty as to Maes on the charges contained in Counts 1, 2, 3, 5, 6, 7, 8, and 9 of the Second Superseding Indictment, and a verdict of not guilty as to the charge contained in Count 4. See Jury Verdict [150] at 1-5. The Court then discharged the jury.

         B. Maes' Motion [157] for Judgment of Acquittal or Alternatively, Motion for New Trial

         Maes' deadline for filing a motion for judgment of acquittal or for a new trial was October 5, 2018. See Fed. R. Crim. P. 29(c)(1); Fed. R. Crim. P. 33(b)(2). Three days after the deadline, on October 8, 2018, Maes filed a Motion [156] for Additional Time to File Motion for Acquittal or Alternatively Motion for a New Trial, citing as one of the reasons for his request that he sought more time to attempt “to secure additional information regarding an incident involving the jury possibly viewing him while in a prison van, and that matter has been stated on the record.” Mot. [156] at 1. The Court granted Maes' Motion [156] and ordered that “[a]ny motion for judgment of acquittal and/or new trial on behalf of Defendant Michael Maes shall be filed on or before October 19, 2018.” Oct. 9, 2018, Text Order.

         Maes did not file any such Motion by the October 19, 2018, deadline. Instead, on October 22, 2018, three days beyond the new deadline, Maes filed the present Motion [157] for Judgment of Acquittal or Alternatively, Motion for New Trial Pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure. By this date, Maes had had 31 days to further investigate his claim. The Government has filed a Response [158] in opposition to Maes' Motion [157].

         Maes' Motion [157], which is a mere two-pages long and is not accompanied by a Memorandum Brief, contends that the Court should set aside his conviction or order a new trial for the following reasons:

1. The Court failed to grant the Defendant's Motion for Judgment of Acquittal at the close of the Government's case in chief.
2. The Court erred in failing to find that the Government's evidence lacked sufficiency.
3. The Court failed to grant the Defendant's preemptory instruction.
4. During the trial for reasons stated by the Judge, Defendant was not able to develop certain issues.
5. There is additional information that the defense has not been able to address.
6. There was a prison van which included the Defendant as a passenger when a fight broke out which was observed by jurors which may have mislead them into believing that the Defendant was misbehaving and prejudiced the jury against him. Further the guards began to fight which also may have led to an assumption that the Defendant was misbehaving. The Court erred in not allowing the Defendant to address these matters in a hearing.
7. Defendant hereby renews all objections stated on the record.

Mot. [157] at 1-2. Maes provides no additional information and cites no legal authority to support his arguments. Maes' Motion is also untimely, but the Government did not object to its untimeliness and responded on the merits, thereby waiving that objection. Having considered Maes' Motion on the merits, the Court concludes that Maes is not entitled to the relief he seeks.

         II. DISCUSSION

         A. Untimeliness of Maes' Motion [157]

         The jury returned its verdict on September 21, 2018, and was discharged immediately thereafter. See Jury Verdict [150] at 1-6. Pursuant to Federal Rule of Criminal Procedure 29(c)(1), “[a] defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.” Fed. R. Crim. P. 29(c)(1). Under Rule 33(b)(2), “[a]ny motion for new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(2).

         Maes did not file a Motion for acquittal or new trial within the time prescribed by the Rules. Instead, Maes filed a Motion [156] for additional time, which the Court granted.[2] The Court ordered that “[a]ny motion for judgment of acquittal and/or new trial on behalf of Defendant Michael Maes shall be filed on or before October 19, 2018.” Oct. 9, 2018, Text Order. Maes did not file any such Motion by the October 19, 2018, deadline. Instead, Maes filed the present Motion [157] under Rules 29 and 33 on October 22, 2018, three days beyond the new deadline.

         Maes has not shown that he failed to timely act because of excusable neglect, nor has he demonstrated good cause to further extend the deadline. However, in its Response [158], the Government did not object to the untimeliness of Maes' Motion [157]. Instead, it responded only on the merits. See Resp. [158] at 1-3. The Court will therefore consider Maes' Motion [157] on its merits. See, e.g., Eberhart v. United States, 546 U.S. 12, 18 (2005) (with respect to Rule 29 and 33 motions, observing that the Government's lack of objection to untimely submissions entails forfeiture of the objection, and holding that the court should have proceeded to consider the merits after the Government failed to raise a defense of untimeliness).[3]

         B. The merits of Maes' Motion [157] for acquittal or new trial

         1. Relevant ...


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