United States v. Batton , 687 F. App'x 680 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 26, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-8043
(D.C. No. 1:09-CR-00030-ABJ-1)
WILLIAM BATTON, (D. Wyo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HOLMES, BALDOCK, and BACHARACH, Circuit Judges.
_________________________________
This appeal involves the timeliness of a motion for a new trial. The
case itself involves a criminal conviction in 2009 for transporting a minor
across state lines to engage in unlawful sexual acts. 18 U.S.C. § 2423.
Roughly 5 ½ years after the conviction, the defendant (Mr. William
Batton) moved for a new trial based on newly discovered evidence
involving the victim’s credibility. According to Mr. Batton, this evidence
*
We do not believe that oral argument would be helpful. As a result,
we are deciding the appeal based on the briefs. See Fed. R. App. P.
34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and Tenth Cir. R. 32.1(A).
had been withheld in violation of Brady v. Maryland, 373 U.S. 83 (1963).
The district court denied the motion for a new trial based on timeliness and
declined to alter the ruling when faced with a motion for reconsideration.
Mr. Batton challenges the rulings denying the motions for a new trial and
reconsideration. We affirm both rulings.
Motions for a new trial, based on newly discovered evidence, are due
three years after the verdict. Fed. R. Crim. P. 33(b)(1). Mr. Batton missed
this deadline. Thus, the motion for a new trial would ordinarily be
considered untimely. But the district court had discretion to extend the
three-year deadline upon a showing of good cause and excusable neglect.
Fed. R. Crim. P. 45(b)(1)(B).
The government moved to dismiss the motion for a new trial, arguing
that it had been untimely. In response, Mr. Batton argued that the district
court should extend the deadline based on excusable neglect. But in
denying the motion for a new trial, the district court may have overlooked
Mr. Batton’s argument involving excusable neglect, for the court stated
that “Defendant makes no claim that the three year time period should be
extended for excusable neglect or that there are circumstances that might
justify a determination that the Court should allow this claim to now go
forward.” Doc. 139 at 3.
The potential oversight proved inconsequential, for the district court
later confirmed that it had “reviewed the materials submitted by the
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defendant” and adhered to the earlier ruling denying the motion for a new
trial. We take the district court at its word when the court confirmed that it
had reviewed Mr. Batton’s filings. See Livsey v. Salt Lake County, 275
F.3d 952, 957 (10th Cir. 2010).
The resulting question is whether the district court erred in ruling
that Mr. Batton had not shown excusable neglect. In considering that
ruling, we must determine whether the district court abused its discretion.
United States v. Cates, 716 F.3d 445, 448 (7th Cir. 2013); United States v.
Munoz, 605 F.3d 359, 366 (6th Cir. 2010).
In conducting this review, we consider four pertinent factors:
 the danger of unfair prejudice to the government,
 the length of the delay and its potential impact on the judicial
proceedings,
 the reasons for the delay, and
 whether the movant acted in good faith.
United States v. Vogl, 474 F.3d 976, 981 (10th Cir. 2004). Fault for the
delay is “a very important factor—perhaps the most important single
factor—in determining whether neglect is excusable.” United States v.
Torres, 372 F.3d 1159, 1163 (10th Cir. 2004) (internal quotation marks
omitted). Thus, in United States v. Torres, we overturned a finding of
excusable neglect based solely on the movant’s fault. See id. at 1162-63.
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The district court reasonably concluded that Mr. Batton was to blame
for the delay. He denied blame, contending that he had sought a new trial
quickly after obtaining the new evidence, consisting of handwritten notes
from the victim’s therapist, through a subpoena in a civil proceeding
brought by the victim. But the district court
 explained that Mr. Batton could have obtained the information
years earlier and
 reasoned that the passage of roughly 5 ½ years was prejudicial
to the government, as memories had likely faded with the
passage of time.
As to Mr. Batton’s delay, the district court explained:
[The victim’s therapist] was interviewed by law enforcement
July 16, 2008 and that interview . . . was provided to defense
counsel [before trial] with proper redactions to the interview
report. [The therapist’s] report and her potential as a witness
for either the defendant or the government was known. All
litigants in the case knew of her professional involvement with
and therapeutic treatment of the victim. Both sides could have
sought her records and testimony by subpoena. It is not
reasonable to think [she] had not recorded her professional
impressions in some manner at times contemporaneous to her
treatment of the victim. It is disingenuous to suggest the notes
could not have been obtained prior to the trial in the face of the
then-existing knowledge of [the therapist’s] treatment and
professional relationship with the victim.
Doc. 139 at 5 (citation omitted). In short, the very process by which
Mr. Batton ultimately obtained the treatment notes had been available to
him years before. None of his arguments suggest otherwise. 1
1
Mr. Batton does argue that prior availability of the notes through a
subpoena should not undercut his Brady claim, citing Banks v. Reynolds,
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As for the length and prejudicial effect of the delay, the district court
noted that a delay of 5 ½ years—2 ½ years beyond that already allowed by
Rule 33 for the discovery of new evidence—was “obviously prejudicial to
the government.” Id. at 4. The passage of time impair[ed] the government’s
ability to effectively relitigate the case [because] . . . events occurred long
ago; witnesses bec[a]me unavailable; memories fade[d].” Id. at 5. The
delay also “impact[ed] the Court’s judicial proceedings, and the efficiency,
accuracy and the fairness of those proceedings.” Id. at 5-6.
These considerations may be mitigated by the victim’s prosecution of
a civil suit in the interim. But the district court could reasonably rely on
the factors involving length of the delay and prejudice.
Under these circumstances, we conclude that the district court did
not abuse its discretion in denying Mr. Batton’s motions for a new trial and
reconsideration. 2
54 F.3d 1508, 1517 (10th Cir. 1995) (“The fact that defense counsel knew
or should have known about [alleged exculpatory] information, is
irrelevant to whether the prosecution had an obligation to disclose the
information.” (internal quotation marks omitted)). But that is not the point
at issue. We are concerned not with the merits of the Brady claim, but with
the inadequacy of his showing of excusable neglect.
2
Mr. Batton’s briefing touches on other matters not specifically
addressed here, but we have restricted our discussion to the points material
to our disposition.
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Affirmed.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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