UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Crim. Action No. 09-354 (EGS)
NGOZI POLE,
Defendant.
MEMORANDUM OPINION AND ORDER
On February 1, 2011, Defendant Ngozi Pole (“Mr. Pole”) was
convicted by jury of five counts of wire fraud in violation of
18 U.S.C. § 1343 and one count of theft of government property
worth more than $1,000 in violation of 18 U.S.C. § 641. See
Verdict Form, ECF No. 54. 1 Mr. Pole appealed, and on December 20,
2013, the United States Court of Appeals for the District of
Columbia Circuit (“D.C. Circuit”) remanded various claims of
ineffective assistance of trial counsel, as well as the Court’s
restitution order, for further proceedings. See United States v.
Pole, 741 F.3d 120, 124, 129 (D.C. Cir. 2013). The Court
subsequently set a schedule for the parties to brief the issues
that were remanded by the D.C. Circuit and scheduled an
evidentiary hearing to take place on November 14, 2017. See Min.
Order (May 26, 2017). Days before the evidentiary hearing was to
1 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF page number, not the page number of the filed document. commence, however, Mr. Pole submitted a notice to the Court
updating his plan for witnesses and evidence for the upcoming
hearing, see Notice Regarding Nov. 14, 2017 Hearing, ECF No.
163; setting off a series of disputes between the parties
regarding the proper scope of the evidentiary hearing and
whether the Court had the authority to rule on certain of Mr.
Pole’s claims. See, e.g., Joint Status Report, ECF No. 176.
Pending before the Court is Mr. Pole’s motion for a new
trial, ECF No. 139; Mr. Pole’s supplement to his motion for a
new trial, ECF No. 168; and Mr. Pole’s petition for a writ of
coram nobis, ECF No. 169. The Court’s immediate task is to
resolve the parties’ disputes prior to proceeding with the
evidentiary hearing in this case. Upon consideration of the
motions, the responses, and replies and surreplies thereto, the
supplements, the applicable law, and the entire record, the
Court concludes that it may consider the entirety of Mr. Pole’s
motion for a new trial during the upcoming evidentiary hearing,
but it shall not consider the contents of Mr. Pole’s supplement
as it was untimely filed. The Court also DENIES Mr. Pole’s
petition for a writ of coram nobis.
I. Background
Following a ten-day jury trial in January 2011, Mr. Pole
was convicted of five counts of wire fraud in violation of 18
U.S.C. § 1343 and one count of theft of government property
2 worth more than $1,000 in violation of 18 U.S.C. § 641. See
Verdict Form, ECF No. 54. The Court subsequently sentenced Mr.
Pole to twenty months in prison, followed by three years of
supervised release, and ordered him to pay $75,042.37 in
restitution. See J., ECF No. 102. Mr. Pole began serving his
sentence on July 27, 2012; see Second Consent Mot. to Modify
Conditions of Release to Allow Travel, ECF No. 111 at 1; and on
April 19, 2016, the Court granted his motion for early
termination of supervised release, Minute Order (Apr. 19, 2016).
Mr. Pole appealed his conviction, challenging three
evidentiary rulings and arguing that he received ineffective
assistance of counsel and that the Court miscalculated
restitution. See Pole, 741 F.3d at 124. The specific ineffective
assistance claims Mr. Pole raised on appeal are:
that [his] trial counsel should have (1) produced unredacted copies of Pole’s budget memos; (2) “through documentary evidence and additional discovery or otherwise” demonstrated that “Pole routinely issued exit bonuses without specific chief of staff approval”; (3) “demonstrate[d] that [Mary Beth] Cahill2 instructed Pole to spend the budget to zero, or to impeach her testimony that she did not do so”; and (4) attempted to impeach [Danica] Petroshius by introducing evidence about employee bonuses she denied issuing and by “question[ing] Petroshius regarding a memoranda
2 Mr. Pole served as the late Senator Edward M. Kennedy’s Washington, D.C. office manager from 1998 to 2007. During that time, Mr. Pole served under four chiefs of staff—Gerard Kavanaugh, Mary Beth Cahill, Danica Petroshius, and Eric Mogilnicki—and one interim chief of staff. See Pole, 741 F.3d at 182. 3 from Pole” containing budgetary information she claimed never to have received.
Id. at 126. On December 20, 2013, the D.C. Circuit “reject[ed]
Pole’s evidentiary challenges, remand[ed] Pole’s ineffective
assistance claims, and vacate[d] and remand[ed] the restitution
order for further proceedings consistent with [its] opinion.”
Id. at 129.
On February 19, 2014, this Court issued an Order directing the
parties to file a joint status report, including recommendations
for how to proceed. Minute Order (Feb. 19, 2014). Following
multiple continuances to allow defense counsel additional time to
obtain documents, Mr. Pole filed a motion for a new trial on May
4, 2015. See Def.’s Mot. New Trial, ECF No. 139. In Mr. Pole’s
motion, he raised the ineffective assistance of trial claims
that had been remanded by the D.C. Circuit, as well as several
new claims of ineffective assistance of trial counsel. The
ineffective assistance claims asserted for the first time in the
motion are that trial counsel (1) should have presented a good
faith defense but did not; (2) failed to object to the admission
of Mr. Pole’s offer to repay unapproved bonuses; (3) failed to
object to the admission and use of Mr. Pole’s oath of office;
(4) failed to call James McCarthy to testify that he did not
consider Mr. Pole a friend; and (5) failed to call Kathleen
Kruse to demonstrate that she informed Danica Petroshius of a
large bonus she received. See id. The government filed its
4 opposition to Mr. Pole’s motion for a new trial on June 15,
2015, see Gov’t’s Opp’n Mot. New Trial, ECF No. 142; and Mr.
Pole filed his reply brief on August 3, 2015. See Def.’s Reply
New Trial, ECF No. 144. The government filed a surreply
regarding United States v. Udo, 795 F.3d 24 (D.C. Cir. 2015), on
May 3, 2016.
The Court scheduled an evidentiary hearing on Mr. Pole’s
motion for a new trial on November 14, 2017, see Min. Order (May
26, 2017); and the parties submitted a joint status report on
October 18, 2017 regarding the scope of the hearing, including
the parties’ lists of exhibits and the anticipated witnesses to
be called, see Joint Status Report, ECF No. 159. However, on
November 10, 2017, Mr. Pole filed a notice to the Court updating
his plan for witnesses and evidence for the upcoming hearing.
See Notice Regarding Nov. 14, 2017 Hearing, ECF No. 163. The
notice informed the Court that Mr. Pole “anticipate[d] calling
one or more of the following additional witnesses: Adrian St.
Hill (co-counsel with Rudolph Acree at Mr. Pole’s trial),
Deborah Mayer (the lead prosecutor at trial), Shawn Allen
(defense investigator), and Mr. Pole.” Id. at 1. These
additional witnesses had not been identified in the October 18,
2017 joint status report. Id. The government filed its response
to the notice the following day. See Gov’t’s Response, ECF No.
164. In its response, the government stated that it had “reason
5 to believe that one or more of the additional witnesses the
defense seeks to call at the evidentiary hearing would testify
about matters related to ineffective assistance of counsel
claims asserted for the first time on remand.” Id. at 1. The
government argued that those claims not raised on direct appeal
are outside the scope of the remand and should be dismissed. Id.
at 3. Further, Mr. Pole could not raise these newly asserted
ineffective assistance of counsel claims in a collateral attack
under 28 U.S.C. § 2255 because his supervised release had been
terminated and he was no longer in custody. Id. at 5. Mr. Pole
filed his reply to the government’s response on November 21,
2017. See Def.’s Reply Gov’t’s Response, ECF No. 165.
On January 16, 2018, “[p]ending a decision from the Court”
on Mr. Pole’s November 10, 2017 notice (ECF No. 163), Mr. Pole
filed a supplement to his motion for a new trial based on newly
discovered evidence of prosecutorial misconduct. See Def.’s
Suppl. Mot. New Trial, ECF No. 168. According to Mr. Pole, the
“newly discovered evidence” demonstrated prosecutorial
misconduct warranting a new trial because the evidence “strongly
suggests that the government made misrepresentations to the
Court and to Mr. Pole’s trial counsel – both before and during
the trial – about its knowledge of material exculpatory
information” within budgetary memoranda that were used at trial.
Id. at 1-2. Mr. Pole simultaneously filed a petition for a writ
6 of coram nobis “on the grounds that he received constitutionally
ineffective assistance of counsel in violation of the Sixth
Amendment and/or that the government committed prosecutorial
misconduct before and during Mr. Pole’s trial.” See Def.’s Pet.
Writ Coram Nobis, ECF No. 169. The government filed its
opposition to Mr. Pole’s supplemental motion and petition for a
writ of coram nobis on February 21, 2018. See Gov’t’s Opp’n
Suppl. Mot. & Coram Nobis, ECF No. 170. Mr. Pole filed his reply
on March 14, 2018. Def.’s Reply Suppl. Mot. & Coram Nobis, ECF
No. 173.
On December 18, 2019, Mr. Pole filed a supplemental notice
in support of his motion for a new trial and petition for writ
of coram nobis including additional claims that he “continues to
suffer adverse consequences as a result of [his] felony
conviction.” See Def.’s Suppl. Notice, ECF No. 174.
On February 26, 2020, the parties submitted a joint status
report to the Court requesting a status conference in order to
determine the parameters of the evidentiary hearing on Mr.
Pole’s motions. See Joint Status Report, ECF No. 176. The Court
declined to schedule a status conference, see Min. Order (Jan.
24, 2021); and instead addresses the parties’ arguments below.
7 II. Analysis
A. The Court May Consider the Merits of Mr. Pole’s Motion for a New Trial
The government first argues that Mr. Pole’s additional
claims that were not raised on direct appeal are barred by the
mandate rule doctrine because they are outside the scope of the
D.C. Circuit’s remand. See, e.g., Gov’t’s Response, ECF No. 164
at 3-5. The government also argues that the Court should deem
Mr. Pole’s additional claims waived 3 because Mr. Pole could have
raised them on his initial appeal, but did not. 4 Id. Mr. Pole, in
3 Though the government’s second objection and Mr. Pole’s argument in opposition are framed as concerning “waiver,” they appear to be more properly considered as “forfeiture” arguments. See Owens v. Republic of Sudan, 924 F.3d 1256, 1259 (D.C. Cir. 2019) (considering “the plaintiffs’ contention that Sudan forfeited its arguments because it failed to raise them in its initial appeal to this court and before the D.C. Court of Appeals”). As the D.C. Circuit has explained, “[a]lthough jurists often use the words interchangeably, . . . waiver is the intentional relinquishment or abandonment of a known right, . . . and forfeiture is the failure to make the timely assertion of a right.” Keepseagle v. Perdue, 856 F.3d 1039, 1053 (D.C. Cir. 2017) (citations and quotation marks omitted)); see also Freytag v. C.I.R., 501 U.S. 868, 895 n.2 (1991) (Scalia, J. concurring in part and concurring in the judgment) (“[Waiver and forfeiture] are really not the same, although our cases have so often used them interchangeably that it may be too late to introduce precision.”). However, because the parties use the word “waiver” throughout their briefing, the Court shall use both waiver and forfeit interchangeably. 4 While the government does not distinguish between its “mandate
rule” argument and its “waiver” argument, the two doctrines involve separate, though related, concerns and analyses. See, e.g., United States v. Slatten, 395 F. Supp. 3d 45, 82 (D.D.C. 2019) (explaining that “even if [defendant] could dodge waiver, he would run into the mandate rule”); Mowrer v. U.S. Dep’t of Transp., 326 F.R.D. 350, 353 (D.D.C. 2018) (finding that 8 response, does not directly dispute that the mandate rule or
waiver doctrine, if applied, would preclude this Court’s
consideration of his newly asserted claims. Def.’s Reply, ECF
No. 165 at 2, 6-7; see also id. at 3 (describing the motion for
a new trial as “addressing the claims remanded by the D.C.
Circuit, as well as several additional ineffective assistance of
counsel claims”). Rather, Mr. Pole argues that the government
waived its objections by “(1) failing to ever request a ruling
from the Court that the claims should be dismissed as outside
the scope of the remand; and (2) addressing Mr. Pole’s claims on
the merits.” Def.’s Reply, ECF No. 165 at 2.
For the reasons discussed below, the Court concludes that
it may consider the merits of Mr. Pole’s motion for a new trial.
1. Mr. Pole’s Newly Raised Ineffective Assistance of Counsel Claims Are Not Barred by the Mandate Rule
As a threshold matter, with regard to whether the
government has waived its mandate rule argument, the D.C.
Circuit has made clear that “[u]nder the mandate rule, ‘an
inferior court has no power or authority to deviate from the
mandate issued by an appellate court.’” Indep. Petroleum Ass’n
plaintiffs had not rebutted defendant’s waiver argument in responding that their claim was not barred by the mandate rule); cf. Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 740 (D.C. Cir. 1995) (“The present case involves an application of waiver doctrine, not core law-of-the-case principles.”). The Court will thus analyze the government’s objection as two separate arguments. 9 of Am. v. Babbitt, 235 F.3d 588, 596-97 (D.C. Cir. 2001)
(quoting Briggs v. Pa. R.R. Co., 334 U.S. 304, 306 (1948)); see
also Am. Council of the Blind v. Mnuchin, 977 F.3d 1 (D.C. Cir.
2020) (same). In other words, this Court simply “cannot deviate
from the mandate issued by the Court of Appeals for the District
of Columbia Circuit.” 5 Burns v. Levy, No. 13-898 (CKK), 2019 WL
6465142, at *5 (D.D.C. Dec. 2, 2019). Thus, regardless of
whether the government sufficiently raised its mandate rule
argument within its opposition to Mr. Pole’s motion for a new
trial, this Court lacks the authority to alter or stray from the
D.C. Circuit’s direction on remand. See Seese v. Volkswagenwerk,
A.G., 679 F.2d 336, 337 (3d Cir. 1982) (“The district court is
without jurisdiction to alter the mandate of this court on the
5 “Although the D.C. Circuit has not had an opportunity to address the question, decisions from this Court and from other circuits recognize that a district court may . . . permit re- litigation of a question previously resolved in an appellate decision, but only in ‘extraordinary circumstances.’” United States v. Trabelsi, No. 06-cr-89 (RDM), 2020 WL 1236652, at *8 (D.D.C. Mar. 13, 2020) (citing cases). In such circumstances, the party seeking reconsideration of an already decided issue would bear the burden of establishing: “(1) a dramatic change in controlling legal authority; (2) significant new evidence that was not earlier obtainable through due diligence but has since come to light; or (3) [if] blatant error from the prior . . . decision would result in serious injustice if uncorrected.” Id. Here, Mr. Pole does not argue that any “exception” to the mandate rule applies in his case. Thus, even if the Court determined that it had the authority to reopen issues already decided in such “extraordinary circumstances,” Mr. Pole has not met his “heavy burden” to establish that such circumstances exist. Id. 10 basis of matters included or includable in defendants’ prior
appeal.”); United States v. Trabelsi, No. 06-cr-89 (RDM), 2020
WL 1236652, at *8 (D.D.C. Mar. 13, 2020) (noting that the
mandate rule “requires a lower court to honor the decisions of a
superior court in the same judicial system”); see also United
States v. Gabriel, No. 02-cr-216 (JDB), 2005 WL 1060631, at *7
n.9 (D.D.C. May 4, 2005) (“[T]he question in this case is
whether this Court has any authority under . . . the mandate
rule to consider the issue of the 1986 convictions at all. It
would expand the waiver of waiver rule beyond all recognition to
conclude that a district court lacks the authority to consider
its own authority to hear cases on remand.”). In view of these
constraints on its authority, the Court therefore shall proceed
to the merits of whether the mandate rule bars this Court’s
consideration of Mr. Pole’s newly asserted claims.
The mandate rule is “a ‘more powerful version’ of the law-
of-the-case doctrine, which prevents courts from reconsidering
issues that have already been decided in the same case.” Indep.
Petroleum Ass’n of Am., 235 F.3d at 597 (quoting LaShawn A. v.
Barry, 87 F.3d 1389, 1393 n.3 (D.C. Cir. 1996) (en banc)). The
rule’s scope extends to issues that were decided by the D.C.
Circuit “either explicitly or by necessary implication.” United
States v. Ins. Co. of N. Am., 131 F.3d 1037, 1041 (D.C. Cir.
1997). “Unlike the doctrine of res judicata, . . . the . . .
11 ‘law of the case’ doctrine does not seek to sweep under its
coverage all possible issues arising out of the facts of the
case.” Id. Therefore, “it is entirely appropriate—and, in most
cases in this [C]ircuit, necessary—to consult the opinion to
interpret the mandate.” Id. at 1043 n.7 (citing City of
Cleveland, 561 F.2d at 347 n.25).
The D.C. Circuit’s decision regarding Mr. Pole’s
ineffective assistance of trial counsel claims was
straightforward. The D.C. Circuit noted that Mr. Pole had raised
four specific ineffective assistance of counsel claims:
that trial counsel should have (1) produced unredacted copies of Pole’s budget memos; (2) “through documentary evidence and additional discovery or otherwise” demonstrated that “Pole routinely issued exit bonuses without specific chief of staff approval”; (3) “demonstrate[d] that Cahill instructed Pole to spend the budget to zero, or to impeach her testimony that she did not do so”; and (4) attempted to impeach Petroshius by introducing evidence about employee bonuses she denied issuing and by “question [ing] Petroshius regarding a memoranda from Pole” containing budgetary information she claimed never to have received.
Pole, 741 F.3d at 126. Based on the record before it, the D.C.
Circuit then concluded that Mr. Pole had “alleged errors that,
taken together, qualify as ‘colorable,’ requiring remand.” Id.
at 127. The court explained that “given Pole’s allegations, and
given that the trial record neither indicates why trial counsel
made particular strategic decisions nor refutes the possibility
12 that Pole suffered prejudice,” it was the “safest course of
action . . . to allow the district court to address the claims—
and the government’s responses—in the first instance.” Id.
The government contends that because the D.C. Circuit
explicitly remanded the four enumerated ineffective assistance
of counsel claims for this Court’s consideration, the Court
“does not have the authority to decide” Mr. Pole’s claims that
were not raised on the initial appeal. Gov’t’s Opp’n, ECF No.
164 at 3-4. The Court disagrees.
While the D.C. Circuit remanded Mr. Pole’s four ineffective
assistance of counsel claims, the court never had the
opportunity to decide, or even consider, the additional
arguments that Mr. Pole now brings. As explained above, for a
court to be bound by a mandate, “the issue must actually have
been decided ‘either expressly or by necessary implication’ on
that appeal.” Maggard v. O’Connell, 703 F.2d 1284, 1289 (D.C.
Cir. 1983) (quoting City of Cleveland, 561 F.2d at 348). “The
mere fact that it could have been decided is not sufficient to
foreclose the issue on remand.” Id. Nor does the text and spirit
of the D.C. Circuit’s mandate preclude this Court from
considering issues not inconsistent with the court’s decision.
See Pole, 741 F.3d at 129 (remanding “for further proceedings
consistent with this opinion”). Rather, the “goal” of the
mandate rule is to “achieve finality, making it possible for
13 appellate courts to do their job,” Am. Council of the Blind, 977
F.3d at 7 (finding that the “purpose of the mandate rule”
supported a “narrow reading” of the court’s opinion); and
consideration of Mr. Pole’s newly asserted claims does not
disrupt the D.C. Circuit’s holdings, see Owner-Operator Indep.
Drivers Ass’n, Inc. v. U.S. Dep’t of Transp., 316 F. Supp. 3d
201, 206 (D.D.C. 2018) (finding, after the D.C. Circuit had
remanded plaintiffs’ “damages claims” under the Administrative
Procedure Act and Fair Credit Reporting Act, that the mandate
rule did not preclude plaintiffs from amending their complaint
to add an additional Privacy Act claim).
The government’s argument that United States v. Whren, 111
F.3d 956 (D.C. Cir. 1997), controls is unpersuasive. In Whren,
the D.C. Circuit held that, “upon a resentencing occasioned by a
remand, unless the court of appeals expressly directs otherwise,
the district court may consider only such new arguments or new
facts as are made newly relevant by the court of appeals’
decision—whether by the reasoning or by the result.” Whren, 111
F.3d at 960; see also id. (noting that under Federal Rule of
Criminal Procedure 52(b), the resentencing court could also
consider an issue belatedly raised if it rises to the level of
“plain error”). The court further explained that “[u]nder [its]
approach a defendant may argue at resentencing that the court of
appeals’ decision has breathed life into a previously dormant
14 issue, but he may not revive in the second round an issue he
allowed to die in the first.” Id.
However, as is clear from the court’s language, Whren
explicitly governs remands for resentencing, and since the case
was decided, the D.C. Circuit has consistently read Whren to
apply only in that specific context. See, e.g., United States v.
Brown, 516 F.3d 1047, 1052 n.3 (D.C. Cir. 2008) (“Even if we had
ordered a remand for resentencing [under Whren,] the district
court might not have been able to consider Brown’s argument
regarding his arrest record.”); United States v. Johnson, 331
F.3d 962, 965 (D.C. Cir. 2003) (explaining that Whren states
“the standard governing remands for resentencing”); see also
United States v. Gabriel, No. 02-cr-216 (JDB), 2005 WL 1060631,
at *4 (D.D.C. May 4, 2005) (“The standard that a district court
should follow in assessing the proper scope of resentencing on
remand from a D.C. Circuit opinion was set out in United States
v. Whren . . . .”). Moreover, the Court is unaware of any case—
and the government supplies none—that purports to extend Whren
to other contexts.
Accordingly, the Court finds that the mandate rule does not
preclude it from considering Mr. Pole’s newly raised ineffective
assistance of counsel claims.
15 2. The Government Forfeited Its Forfeiture Argument
Second, the Court must address the government’s argument
that Mr. Pole has waived—or forfeited—his additional ineffective
assistance of counsel arguments by not raising them on his
initial appeal.
“[U]nder well-established law, a party forfeits a claim by
failing to raise it below when the party ‘knew, or should have
known’ that the claim could be raised.” Keepseagle v. Perdue,
856 F.3d 1039, 1054 (D.C. Cir. 2017) (quoting Laffey v. Nw.
Airlines, Inc., 740 F.2d 1071, 1091 (D.C. Cir. 1984)). “The rule
in this [C]ircuit is that litigants must raise their claims on
their initial appeal and not in subsequent hearings following a
remand.” Eli Lilly & Co. v. Home Ins. Co., 794 F.2d 710, 717
(D.C. Cir. 1986) (citing Laffey, 740 F.2d at 1089-92). However,
the D.C. Circuit has recognized that a party can forfeit the
argument that an opposing party has forfeited a claim. See,
e.g., Solomon v. Vilsack, 763 F.3d 1, 13 (D.C. Cir. 2014) (“By
failing to argue forfeiture or a failure to properly plead the
claims before the district court, the Secretary has—in a word—
forfeited his forfeiture argument here.”); United States v.
Delgado–Garcia, 374 F.3d 1337, 1340 (D.C. Cir. 2004) (holding
that, by failing to advance it, the government had “waived its
waiver argument”).
16 Here, the government has forfeited its forfeiture argument
by not raising it in its opposition to Mr. Pole’s motion for a
new trial. See Intercollegiate Broad. Sys., Inc. v. Copyright
Royalty Bd., 574 F.3d 748, 755 (D.C. Cir. 2009) (“[Appellant]
has forfeited its argument by failing to raise it in its opening
brief.” (citing Sw. Airlines Co. v. Transp. Sec. Admin., 554
F.3d 1065, 1072 (D.C. Cir. 2009))). Indeed, the opposition
includes no mention—not even a cursory one—of waiver or
forfeiture. Instead, the first time the government raises its
waiver argument is within its response to Mr. Pole’s notice
regarding the November 14, 2017 hearing—approximately two years
after Mr. Pole first filed his motion for a new trial. See
Response, ECF No. 164 at 3-4. Consequently, the government has
forfeited this argument. See Citizens for Responsibility &
Ethics in Wash. v. Trump, No. 17-cv-1228 (CRC), 2018 WL 8187206,
at *1-2 (D.D.C. June 25, 2018) (finding that plaintiff had
forfeited its arguments that it had failed to raise in its
opposition to the motion to dismiss).
Thus, because the government has forfeited its forfeiture
argument, the Court concludes that the forfeiture doctrine does
not preclude review of Mr. Pole’s claims on the merits.
17 3. The Government Forfeited Its Objection to the Timeliness of Mr. Pole’s Motion for a New Trial
Pursuant to Federal Rule of Criminal Procedure 33, “[a]ny
motion for a 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).
Because Mr. Pole filed his motion for a new trial more than four
years after the jury found him guilty on February 1, 2011, the
motion was untimely. See Verdict Form, ECF No. 54 (filed
February 1, 2011); Def.’s Mot. New Trial, ECF No. 139 (filed May
4, 2015). However, the Supreme Court in Eberhart v. United
States, 546 U.S. 12 (2005) (per curiam), has held that the time
limitation contained in Rule 33(b)(2) is not jurisdictional and
is instead a “claim-processing rule.” 546 U.S. at 13. And
because Rule 33(b)(2) is a claims-processing rule, “its
protection is subject to forfeiture if not properly invoked by
the Government.” United States v. Johnson, 721 F. App’x 140, 142
(3d Cir. 2018); see United States v. Laureano-Salgado, 933 F.3d
20, 28 n.13 (1st Cir. 2019) (“[T]he government did not raise a
timeliness objection [to defendants’ new-trial motion] below.
And it expressly chose not to press one in its appellate
briefing. So we say no more about that subject.”); see also
Menominee Indian Tribe of Wisc. v. United States, 614 F.3d 519,
524 (D.C. Cir. 2010) (“Claim-processing rules typically permit
18 [tribunals] to toll the limitations period in light of special
equitable considerations, . . . and their protection can be
forfeited if the party asserting the rule waits too long to
raise the point.” (first alteration in original) (internal
quotation marks and citation omitted)). Here, the government did
not object to the timeliness of Mr. Pole’s motion for a new
trial until almost three years later in its opposition to Mr.
Pole’s supplement, after it had already addressed the merits of
the motion. See Gov’t’s Opp’n Suppl. Mot. & Coram Nobis, ECF No.
170 at 2, 9-11. Its objection thus comes too late, Citizens for
Responsibility & Ethics in Wash., 2018 WL 8187206, at *1-2; and
the Court shall consider the merits of Mr. Pole’s motion. 6
6 Because Mr. Pole’s motion does not purport to rest on newly discovered evidence, the Court analyzed the time restrictions listed under Federal Rule of Criminal Procedure 33(b)(2). However, even if the Court construed the motion as based on newly discovered evidence, the result would remain the same. “Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(1). While Eberhart addressed only whether Rule 33(b)(2)’s time restriction was jurisdictional, other appellate courts have concluded that Eberhart’s reasoning also applies to Rule 33(b)(1) motions based on newly discovered evidence. See, e.g., United States v. Laureano-Salgado, 933 F.3d 20, 28 n.13 (1st Cir. 2019); United States v. Berry, 624 F.3d 1031, 1042 (9th Cir. 2010). The Court likewise sees no reason to depart from Eberhart’s reasoning in applying it to Rule 33(b)(2)’s neighboring subsection. 19 B. The Court Shall Not Consider the Merits of Mr. Pole’s Supplement or His Petition for a Writ of Coram Nobis
In addition to his motion for a new trial, Mr. Pole filed a
supplement to his motion on January 16, 2018, asserting that he
had uncovered new evidence demonstrating prosecutorial
misconduct during his trial, which he claimed warranted a new
trial. Def.’s Suppl. Mot. New Trial, ECF No. 168 at 1. On the
same day, Mr. Pole also filed a petition for a writ of coram
nobis, incorporating by reference the arguments within his
motion for a new trial and his supplement. See Def.’s Pet. Writ
Coram Nobis, ECF No. 169.
The government opposed the supplement, arguing that Mr.
Pole’s claim of prosecutorial misconduct, raised for the first
time in his supplement to his motion for a new trial, was “(1)
waived because he failed to raise it on direct appeal or in a
timely habeas petition when he could have done so[;] and (2)
outside the scope of the mandate issued by the court of
appeals.” Gov’t’s Opp’n Suppl. Mot. & Coram Nobis, ECF No. 170
at 9. The government also argued that Mr. Pole’s supplement to
his motion for a new trial should be denied because “his
‘supplemental’ motion was not timely filed and the allegation of
prosecutorial misconduct, even if true, would not constitute
reversible error.” Id. The government also argued that Mr. Pole
20 is barred from raising his prosecutorial misconduct claim
through a petition for a writ of coram nobis. Id. at 17.
Mr. Pole’s supplement to his motion for a new trial is untimely
filed under Federal Rule of Criminal Procedure 33(b)(1). The
Court also denies Mr. Pole’s petition for a writ of coram nobis.
1. Mr. Pole’s Supplement to His Motion for a New Trial Is Untimely
The Court agrees that Mr. Pole’s supplement is untimely,
and Mr. Pole does not dispute that his supplement was filed
after the three-year time limitation provided for in Federal
Rule of Criminal Procedure 33(b)(1). See generally Def.’s Reply
Suppl. Mot. & Coram Nobis, ECF No. 173. “Any motion for a new
trial grounded on newly discovered evidence must be filed within
3 years after the verdict or finding of guilty.” Fed. R. Crim.
P. 33(b)(1). Here, Mr. Pole filed his supplement on January 16,
2018, which is more than three years after the jury returned its
verdict on February 1, 2011. See J., ECF No. 54; Def.’s Suppl.
Mot. New Trial, ECF No. 168. Because Mr. Pole’s motion was filed
beyond the rule’s three-year limitations period and the
government timely objected, his request for a new trial based on
newly discovered evidence of prosecutorial misconduct is
untimely. See United States v. Robinson, No. 16-98 (CKK), 2021
WL 2209403, at *7 (D.D.C. May 31, 2021) (finding that “the jury
21 verdict was rendered on August 10, 2017, more than three years
before Defendant Robinson filed the pending motions, and
therefore his requests for a mistrial or for a new trial are
untimely”). The Court therefore shall not consider the merits of
Mr. Pole’s supplement.
2. Mr. Pole Is Not Entitled to Coram Nobis Relief 7
The writ of coram nobis is “an extraordinary tool to
correct a legal or factual error,” United States v. Denedo, 556
U.S. 904, 912–13 (2009); and “provides a way to collaterally
attack a criminal conviction for a person . . . who is no longer
‘in custody’ and therefore cannot seek habeas relief under 28
U.S.C. § 2255 or § 2241,” United States v. Newman, 805 F.3d
1143, 1146 (D.C. Cir. 2015) (quoting Chaidez v. United States,
133 S. Ct. 1103, 1106 n.1 (2013)). The authority to grant a writ
of coram nobis is “conferred by the All Writs Act, which permits
‘courts established by Act of Congress’ to issue ‘all writs
necessary or appropriate in aid of their respective
jurisdictions.’” Denedo, 556 U.S. at 911 (quoting 28 U.S.C. §
1651(a)). The Supreme Court has made clear, however, that
7 Mr. Pole’s petition for a writ of coram nobis incorporates by reference both his motion for a new trial and his supplement. See Def.’s Pet. Writ Coram Nobis, ECF No. 169 at 4. Because the Court has found that it may consider Mr. Pole’s ineffective assistance of counsel claims included within his motion for a new trial, the Court shall only address here Mr. Pole’s additional prosecutorial misconduct claim included within his supplement. 22 “judgment finality is not to be lightly cast aside.” Denedo, 556
U.S. at 916. Thus, coram nobis relief “is rarely available,”
Zhenli Ye Gon v. Lynch, 176 F. Supp. 3d 1, 3 (D.D.C. 2016); and
may only be granted “under circumstances compelling such action
to achieve justice,” United States v. Morgan, 346 U.S. 502, 511
(1954). The petitioner bears the burden of overcoming a
presumption that the challenged judicial proceedings were
correct. Id. at 512.
“In American jurisprudence the precise contours of coram
nobis have not been ‘well defined,’” Denedo, 556 U.S. at 910
(quoting Bronson v. Schulten, 104 U.S. 410, 416 (1881)); and
“the D.C. Circuit’s precedent in this area is thin,” United
States v. Williams, 630 F. Supp. 2d 28, 32 (D.D.C. 2009).
Nonetheless, courts in this District have applied a four-part
analysis to guide consideration of coram nobis relief. The
petitioner must show that “(1) a more usual remedy is not
available; (2) valid reasons exist for not attacking the
conviction earlier; (3) adverse consequences exist from the
conviction sufficient to satisfy the case or controversy
requirement of Article III; and (4) the error is of the most
fundamental character.” United States v. Faison, 956 F. Supp. 2d
267, 269 (D.D.C. 2013) (quoting United States v. Hansen, 906 F.
Supp. 688, 692–93 (D.D.C. 1995)); see also United States v.
Riedl, 496 F.3d 1003, 1006 (9th Cir. 2007); Bereano v. United
23 States, 706 F.3d 568, 576 (4th Cir. 2013); Klein v. United
States, 880 F.2d 250, 254 (10th Cir. 1989); see also United
States v. Rutigliano, 887 F.3d 98, 108 (2d Cir. 2018) (applying
three-factor test requiring a coram nobis petitioner to “show
that (1) ‘there are circumstances compelling such action to
achieve justice’; (2) ‘sound reasons exist for failure to seek
appropriate earlier relief’; and (3) ‘the petitioner continues
to suffer legal consequences from his conviction that may be
remedied by granting of the writ’” (quoting Foont v. United
States, 93 F.3d 76, 79 (2d Cir. 1996))); cf. Newman, 805 F.3d at
1146 (taking note of the factors from Riedl and Faison but
addressing only whether there was “fundamental error” in an
ineffective assistance of counsel case where the defendant’s
counsel failed to advise him of the immigration consequences of
pleading guilty).
Mr. Pole claims that he is entitled to coram nobis relief
because new evidence suggests that “the government made
misrepresentations to the Court and to Mr. Pole’s trial counsel
– both before and during trial – about its knowledge of material
exculpatory information.” Def.’s Suppl. Mot. New Trial, ECF No.
168 at 1; see also Def.’s Pet. Writ Coram Nobis, ECF No. 169 at
1-2. Specifically, Mr. Pole claims that he recently uncovered
evidence that the law firm Foley & Lardner LLP–the firm that
represented Mr. Pole prior to his trial–produced to the
24 government copies of unredacted budget memoranda in 2007, and
that “many of these unredacted memos correspond with redacted
memos that the government introduced as exhibits at Mr. Pole’s
trial–even though the government repeatedly told both the Court
and Mr. Pole’s trial counsel that it had no access to the
unredacted versions.” Def.’s Suppl. Mot. New Trial, ECF No. 168
at 2.
However, Mr. Pole has failed to show a valid reason for not
raising his prosecutorial misconduct argument earlier. “To show
that he has valid reasons for a delay in challenging a
conviction, a defendant must show why he did not seek to appeal
the conviction directly” or in a motion pursuant to 28 U.S.C. §
2255. Faison, 956 F. Supp. 2d at 270 (citing Foont, 93 F.3d at
80. The bar is high; coram nobis is not “a free pass for
attacking criminal judgments long after they have become final.”
Riedl, 496 F.3d at 1004. Courts generally deny coram nobis
petitions when “none of the material facts or applicable laws
have changed since defendant’s conviction.” See United States v.
Lee, 84 F. Supp. 3d 7, 9-10 (D.D.C. 2015) (rejecting defendant’s
petition because, “[a]s none of the material facts or applicable
laws have changed since defendant’s conviction, he could have
raised it in his direct appeal (which he voluntarily dismissed),
or in a timely-filed motion pursuant to 28 U.S.C. § 2255”);
United States v. Harrison, No. 12-88 (ESH), 2015 WL 6406212, at
25 *2 (D.D.C. 2015) (“None of the material facts or applicable laws
have changed since defendant’s conviction, so he could have
raised this argument in a direct appeal or in a timely-filed
motion pursuant to 28 U.S.C. § 2255.”).
Here, Mr. Pole does not dispute that none of the material
facts or applicable laws have changed since his conviction. See
Def.’s Reply Suppl. Mot. & Coram Nobis, ECF No. 173 at 8-9. As
the government points out, his claim “derives from materials the
defendant himself produced to the government through counsel
more than 10 years ago,” Gov’t’s Opp’n Suppl. Mot. & Coram
Nobis, ECF No. 170 at 20; and Mr. Pole acknowledges in his
supplement that his “trial counsel also may have received the
unredacted memos [underlying the prosecutorial misconduct
claim], either from the government in discovery or from Foley,”
Def.’s Suppl. Mot. New Trial, ECF No. 168 at 5 n.2. Moreover,
Mr. Pole recognizes that “there is no explanation” for his
failure to raise the claim earlier on appeal “other than the
ineffective assistance of Mr. Pole’s appellate counsel.” Def.’s
Reply Suppl. Mot. & Coram Nobis, ECF No. 173 at 9. Mr. Pole does
not, however, bring an ineffective assistance of appellate
counsel claim, and his acknowledgement that he and his appellate
counsel “had everything they needed in order to raise” the claim
on direct appeal, id. at 8-9, is fatal to his petition brought
almost six years later, see Kernan v. United States, 2017 WL
26 5508776, at *7 (N.D.N.Y. Mar. 14, 2017) (denying coram nobis
relief where, though the petitioner claims to have just learned
the information, the record indicated that the petitioner knew
of the alleged fundamental error prior to entering a plea
agreement, yet waited more than four years after the Court
entered judgment to seek relief); Foont, 93 F.3d at 80–81
(affirming district court’s denial of coram nobis relief because
Foont “knew or should have known since the time of his
conviction, . . . of the facts underlying his current claim”).
In addition, Mr. Pole has failed to show fundamental error.
An error is fundamental if it is “(1) an error of fact; (2)
unknown at the time of trial; (3) of a fundamentally unjust
character which probably would have altered the outcome of the
challenged proceeding if it had been known.” Faison, 956 F.
Supp. 2d at 271 (quoting United States v. Johnson, 237 F.3d 751,
755 (6th Cir. 2001)).
Mr. Pole alleges that fundamental error is present because
of two instances of prosecutorial misconduct: (1) that, in a
joint request for supplemental jury instruction, “the government
represented to the Court and to Mr. Pole’s trial counsel that it
had no access to the unredacted memos”; and (2) that, at trial,
“when the government sought to prevent Mr. Pole from testifying
about what was underneath the redactions, Deborah Mayer, the
lead trial counsel for the government, told the Court: ‘I’ve
27 never seen what’s underneath [the redactions].’” Def.’s Suppl.
Mot. New Trial, ECF No. 168 at 3. Prosecutorial misconduct at
trial occurs when the “prosecutor’s comments so infected the
trial with unfairness as to make the resulting conviction a
denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181
(1986) (internal quotation marks and citation omitted). Due
process is violated when a prosecutor deliberately misleads a
defendant to his prejudice. See, e.g., Mooney v. Holohan, 294
U.S. 103, 112 (1935).
Here, even assuming that the government knew it had
unredacted copies of the budget memoranda, the government’s
misrepresentations did not render the trial fundamentally unfair
or deprive Mr. Pole of due process.
First, the Court disagrees with Mr. Pole that the
government’s statements made within the joint request for
supplemental jury instruction included misrepresentations to the
Court. In the joint request, the government stated that:
1. During the investigation of this matter, the United States requested documents from Senator Kennedy’s office through the Senate Legal Counsel’s Office.
2. In responding to the government’s request for consensual production, Senate Legal Counsel produced a substantial number of documents which contained redactions, which are so marked on the documents. It is the government’s understanding that the redactions were primarily of information which was nonresponsive, subject to a legal
28 privilege (such as the “Speech and Debate” clause or attorney-client privilege), or in excess of what the Counsel’[s] office was authorized to disclose, due to the Senator’s privacy concerns or the fact that the information was from an office’s [sic] other than Senator Kennedy’s and, accordingly, was beyond the scope of his consent.
Joint Request, ECF No. 40. The parties do not dispute that the
redacted budget memoranda at issue were produced by the Senate
in redacted form to the government, see Gov’t’s Opp’n Suppl.
Mot. & Coram Nobis, ECF No. 170 at 13 n.4; and the Court does
not otherwise view the statement as making any mis-
representations regarding whether the government knew of the
redactions’ contents. In any event, the result of the joint
request was a direction to the jury “not to speculate or concern
themselves with the redacted information” and an explanation
“that the redactions were on the documents as provided and were
not created by either the government or the defense.” Joint
Request, ECF No. 40 at 2. Such an instruction does not rise to
the level of a due process violation in this case. See Greer v.
Miller, 483 U.S. 756, 765 (1987) (“To constitute a due process
violation, the prosecutorial misconduct must be of sufficient
significance to result in the denial of the defendant’s right to
a fair trial.” (citation and internal quotation marks omitted)).
Second, the prosecutor’s statement during a sidebar at
trial that she did not know what was under the redactions was
29 not so prejudicial as to deprive Mr. Pole of due process.
Following this sidebar, the Court instructed the jury that
anything that is redacted is “not a part of the evidentiary
record” and later added that “neither one side nor the other
redacted anything.” Gov’t’s Opp’n Suppl. Mot. & Coram Nobis, ECF
No. 170 at 14. And though “the Court did not instruct [Mr. Pole]
that he could not testify about the redactions, when asked by
Pole’s trial counsel if he (defense counsel) should instruct his
client not to talk about the redactions, the Court told him he
could talk to his client about that at the break.” Id. Similar
to the Court’s conclusion above, the Court does not find that
its jury instruction following the sidebar rendered the trial
fundamentally unfair.
Third, the D.C. Circuit has already found that any error in
the Court not allowing Mr. Pole to testify about the redacted
contents of the budget memoranda at trial was “harmless.” Pole,
741 F.3d at 125. In reviewing Mr. Pole’s argument on appeal to
the Court’s ruling, the D.C. Circuit held that, “even if, as
Pole insists, that error was of ‘constitutional dimension,’ ‘it
appears beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained.’” Id. (quoting
United States v. Powell, 334 F.3d 42, 45 (D.C. Cir. 2003)). The
court explained that:
30 Pole was allowed to testify that he kept chiefs of staff informed about budgetary matters and in fact did testify that he “let Ms. Cahill know that the surplus numbers were high.” Thus, if the jury found that Pole generally lacked credibility, it would have had no reason to believe his assertions about what lay under the redactions; if the jury found Pole generally credible, it would have learned nothing new from the excluded testimony.
Id. The Court thus cannot disturb the D.C. Circuit’s holding on
this issue.
Accordingly, the Court also declines to issue a writ of
coram nobis on the ground that Mr. Pole has failed to show error
“of the most fundamental character.” See Hansen, 906 F. Supp. at
692-93.
III. Conclusion
For the reasons stated above, the Court concludes that it
may consider the entirety of Mr. Pole’s motion for a new trial
during the upcoming evidentiary hearing, but it shall not
consider the contents of Mr. Pole’s supplement as it was
untimely filed. The Court also DENIES Mr. Pole’s petition for a
writ of coram nobis.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge December 7, 2021