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United States v. Taylor

February 23, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
RONALD TAYLOR, AND, RICHARD AUSTON, DEFENDANTS.



The opinion of the court was delivered by: Judge Walter Herbert Rice

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART DEFENDANTS' LETTER OF NOVEMBER 20, 2006 (DOC. #238), TREATED AS A MOTION REQUESTING THE RELIEF SET FORTH THEREIN; DECISION AND ENTRY OVERRULING PRO SE MOTION TO VACATE CONVICTION OR, IN THE ALTERNATIVE, TO DISMISS SUPERSEDING INDICTMENT (DOC. #246) FILED BY DEFENDANT RONALD TAYLOR; DECISION AND ENTRY OVERRULING PRO SE MOTION TO DISMISS (DOC. #247) FILED BY DEFENDANT RONALD TAYLOR; DECISION AND ENTRY SUSTAINING PRO SE MOTION TO JOIN CO-DEFENDANT'S MOTIONS (DOC. #249) FILED BY DEFENDANT RONALD TAYLOR; DECISION AND ENTRY OVERRULING PRO SE MOTION FOR COURT FILINGS (DOC. #250) FILED BY DEFENDANT RICHARD AUSTON; DECISION AND ENTRY OVERRULING PRO SE MOTION TO DISMISS (DOC. #251) FILED BY DEFENDANT RICHARD AUSTON; DECISION AND ENTRY OVERRULING PRO SE MOTION TO VACATE CONVICTION AND/OR TO DISMISS (DOC. #252) FILED BY DEFENDANT RICHARD AUSTON; DECISION AND ENTRY OVERRULING PRO SE MOTION FOR TRANSCRIPTS, MOTIONS, JURY INSTRUCTIONS AND VERDICT FORMS (DOC. #253) FILED BY DEFENDANT RICHARD AUSTON; DECISION AND ENTRY OVERRULING PRO SE MOTION TO VACATE VERDICTS AND/OR TO DISMISS SUPERSEDING INDICTMENT (DOC. #254) FILED BY DEFENDANT RICHARD AUSTON; DECISION AND ENTRY OVERRULING PRO SE MOTION TO VACATE VERDICTS (DOC. #255) FILED BY DEFENDANT RICHARD AUSTON; DECISION AND ENTRY OVERRULING PRO SE MOTION TO VACATE VERDICTS (DOC. #256) FILED BY DEFENDANT RICHARD AUSTON; DECISION AND ENTRY OVERRULING PRO SE MOTION TO MAKE MOTIONS FILED IN PRIOR TRIALS PART OF THE RECORD IN THIS PROSECUTION (DOC. #261) FILED BY DEFENDANT RONALD TAYLOR; DECISION AND ENTRY OVERRULING PRO SE MOTION TO VACATE VERDICTS (DOC. #262) FILED BY DEFENDANT RONALD TAYLOR

Herein, the Court rules upon the pro se motions which Defendants Ronald Taylor ("Taylor") and Richard Auston ("Auston") have filed in this prosecution, since the return of the jury verdicts. As a means of analysis, the Court will rule upon motions in the order in which they were filed, discussing motions raising similar issues together. However, before engaging in that analysis, the Court will set forth its reasons for concluding that many of these motions must be overruled as untimely, since they are, in effect, motions for a new trial or for judgment of acquittal.

Rule 29(c)(1) of the Federal Rules of Criminal Procedure provides that a motion for judgment of acquittal after a jury verdict must be made within seven days after the jury has returned a guilty verdict. Rule 33(b) of the Federal Rules of Criminal Procedure provides that a motion for a new trial, on any grounds other than newly discovered evidence, must be made within seven days after the jury has returned a guilty verdict. The seven-day period under both Rules is to be computed in accordance with Rule 45 of the Federal Rules of Criminal Procedure. Under Rule 45, the first day of a period is excluded from the computation, the last day is included. In addition, intervening Saturdays and Sundays are excluded. Herein, the jury returned its verdicts on September 25, 2006. See Doc. #229. Computing the time in accordance with Rule 45, the Court concludes that any motion seeking, in effect, judgment of acquittal or a new trial had to be filed no later than October 4, 2006. None of the Defendants' pro se motions were filed on or before that date. Therefore, any of those motions in which one of the Defendants seeks relief in the form of judgment of acquittal or a new trial, regardless of whether either term has been employed in the motion, must be overruled as being untimely.*fn1

First, the Defendants have submitted a letter, which was filed on November 20, 2006, wherein, they make a number of requests concerning sentencing and other matters. See Doc. #238. Initially, they ask that the Court recommend that they be enrolled in the Bureau of Prisons' 500-hour drug abuse program and that they be incarcerated as near to their families in the Los Angeles area as possible. The Court will grant those requests and included (Taylor) and will include (Auston) such recommendations in the Defendants' judgments of conviction. The Defendants also request that the Court rule upon requests for appeal bonds as quickly as possible. If either Taylor or Auston should move for an appeal bond, this Court will rule upon same quickly.*fn2 Defendants also request that this Court provide them copies of the transcripts of all proceedings, all papers pertaining to motions including decisions, jury instructions, verdict forms and the like. The Court will decline that request. If the Defendants have need of any such papers in order to assist counsel in their appeals, they may request the necessary papers from their counsel.*fn3 Additionally, the Defendants ask the Court to include the record of their prosecution in the District Court for the District of Columbia, as part of the record in this prosecution. The Court will decline this request, given that Rule 10(a) of the Federal Rules of Appellate Procedure defines the record of a case as the original papers and exhibits filed in the district court and the transcript of proceedings. Since the record of the District of Columbia prosecution does not qualify as such, this Court declines to make such part of the record in this prosecution.*fn4

Accordingly, the Court sustains in part and overrules in part the Defendants' Letter of November 20, 2006 (Doc. #238), treated as a motion requesting the relief set forth therein.

Second, each Defendant has filed a motion, requesting that this Court dismiss the Superseding Indictment (Doc. #23), because venue is improper in this judicial district. See Taylor's Pro Se Motion to Vacate Conviction or, in the alternative, to Dismiss Superseding Indictment (Doc. #246); Auston's Pro Se Motion to Vacate Conviction and/or to Dismiss (Doc. #252). Those motions are overruled, because they seek the relief of a judgment of acquittal and are untimely. However, even if those motions had been timely, the Court would overrule same. In conspiracy cases, "venue is proper in ... any district where the conspiracy was formed or in any district where an overt act in furtherance of the conspiracy was performed." United States v. Scaife, 749 F.2d 338, 346 (6th Cir. 1984) (citations omitted). Herein, numerous overt acts were committed in the Southern District of Ohio. Consequently, the jury, in convicting the Defendants, found that the Government had established venue by the preponderance of the evidence.

Accordingly, the Court overrules Taylor's Pro Se Motion to Vacate Conviction or, in the alternative, to Dismiss Superseding Indictment (Doc. #246) and Auston's Pro Se Motion to Vacate Conviction and/or to Dismiss (Doc. #252).

Third, each of the Defendants has filed a motion, requesting that the Court dismiss the prosecution against them, because they were not physically present during bench and in-chambers conferences. See Taylor's Pro Se Motion to Dismiss (Doc. #247); Auston's Pro Se Motion to Dismiss (Doc. #251). Those motions are predicated upon Rule 43 of the Federal Rules of Criminal Procedure, which provides, inter alia, that the presence of a criminal defendant is not required during conferences or hearings on questions of law. See Fed. R. Crim. P. 43(b)(3). Herein, the Court and counsel discussed legal matters during those conferences, such as the admissibility of evidence, jury instructions, the potential conflict of interest of Taylor's counsel and trial procedures. Therefore, the Defendants' presence was excused by Rule 43(b)(3). See e.g., United States v. Barth, 424 F.3d 752, 762-63 (8th Cir. 2005) (defendant's presence excused by Rule 43(b)(3) during discussions of trial procedures); United States v. Jones, 381 F.3d 114, 123 (2d Cir. 2004) (noting that since issue of whether defendant's counsel had a conflict of interest was one of law, his presence excused by Rule 43(b)(3)); United States v. Romero, 282 F.3d 683 (9th Cir. 2002) (defendant's presence excused by Rule 43(b)(3) during conference between court and counsel to discuss jury instructions). Accordingly, the Court overrules Taylor's Pro Se Motion to Dismiss (Doc. #247) and Auston's Pro Se Motion to Dismiss (Doc. #251).*fn5

Fourth, Taylor has filed a motion, requesting that he be permitted to join in any motions filed by Auston. Since allowing Taylor to join in those motions avoids the necessity of ruling on multiple motions, this Court sustains Taylor's Pro Se Motion to Join Co-Defendant's Motions (Doc. #249). The Court will treat each motion filed by Auston as having been joined by Taylor, without discussing such joinder.

Fifth, Auston has filed a motion, requesting that the Court vacate his convictions and/or dismiss the Superseding Indictment (Doc. #23), because evidence was presented during the trial herein, which was not introduced during the District of Columbia prosecution, which, if it had been introduced, would have led to his acquittal in that prosecution. See Doc. #254. Assuming for sake of argument that this Court possesses the authority (or the ability) to conclude that the introduction of testimony in an earlier prosecution would have led to acquittal in that prosecution of a defendant in a pending prosecution before the Court and that, as a consequence, this Court can dismiss the pending prosecution, this Court declines to vacate Auston's convictions and/or dismiss the Superseding Indictment herein. With this motion, Auston focuses on the testimony of Joe Wright, who did not testify in the District of Columbia prosecution. Auston has failed to explain satisfactorily why the testimony of Joe Wright, which was introduced during a trial which resulted in his (Auston's) conviction, would have led to his acquittal in another earlier, related prosecution. Accordingly, the Court overrules Auston's Pro Se Motion to Vacate Verdicts and/or To Dismiss Superseding Indictment (Doc. #254).

Sixth, Auston has filed a motion, requesting that the Court vacate the verdicts, because his counsel failed to follow his suggestions concerning jury instructions.*fn6 See Doc. #255. With this motion, Auston appears to be questioning whether he was afforded effective assistance of counsel. Such a challenge is normally made by way of a post-conviction motion filed under 28 U.S.C. § 2255.

There is no reason to vary from the norm in this case, particularly in light of the fact that Auston states that he is unable to cite the specific portions of this Court's jury instructions to which he objects. See Doc. #255 at 2. Accordingly, the Court overrules Auston's Pro Se Motion to Vacate Verdicts (Doc. #255).

Seventh, Auston has filed a motion, requesting that the Court vacate his convictions and/or dismiss, because that the Superseding Indictment (Doc. #23) was defective. See Doc. #256. Auston challenges Count 1 of the Superseding Indictment (Doc. #23), wherein Auston and others are charged with conspiracy in violation of 21 U.S.C. § 846. He takes umbrage with the inclusion of references to 21 U.S.C. § 841 in that Count, even though he is not charged with a violation of that statute in the Superseding Indictment (Doc. #23). The Court rejects Auston's challenge. Under § 846, it is unlawful to conspire, inter alia, to distribute and to possess with intent to distribute controlled substances, such as cocaine, in violation of § 841. Therefore, Count 1 appropriately charges Auston and others with conspiring to distribute and to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 841. Accordingly, the Court overrules Auston's Pro Se Motion to Vacate Verdicts (Doc. #256).

Eighth, Taylor has filed a motion to vacate verdicts on the basis of the conflict of interest of his attorney. See Doc. #262. This motion is based upon his counsel's former representation of Sentell Smith. That issue was discussed at length during the trial of this prosecution and led to a lengthy delay in proceedings. Based upon the record made ...


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