United States v. Rodney Mitchell , 498 F. App'x 339 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4424
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RODNEY ALEXANDER MITCHELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:11-cr-00286-JRS-2)
Submitted: November 29, 2012 Decided: December 7, 2012
Before MOTZ, DUNCAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Patrick R. Hanes, WILLIAMS MULLEN, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Erik S.
Siebert, Assistant United States Attorney, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodney Mitchell was convicted by a jury of conspiracy
to tamper with a witness, 18 U.S.C. § 1512 (2006), and sentenced
to 97 months’ imprisonment. He appeals, claiming: (1) the
district court erred in denying his motion for a continuance,
and (2) the district court erred in denying his motion for a new
trial. We affirm.
Mitchell was one of six people arrested after a raid
on an apartment in Richmond, Virginia, revealed a large quantity
of heroin and firearms. One of those arrested, William Dugger
(a convicted felon), was the individual whose name appeared on
the lease. However, Dugger was able to convince the arresting
agents that he was innocent of the activity taking place in his
apartment; the charges against him were dismissed and he was
released from custody. The charges against Mitchell were also
dropped.
Shortly after his release, Dugger encountered Mitchell
and Darrell Harris outside a local nightclub. According to
Dugger, Mitchell and Harris accused him (Dugger) of being an
informant and threatened his life. Dugger assured them that he
was not going to show up to testify in any future proceedings.
Upon learning from a confidential informant that
Dugger’s life had been threatened, law enforcement agents
contacted Dugger’s former attorney and arranged a meeting with
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Dugger. After Dugger told them of the nightclub encounter,
investigators obtained recordings of telephone calls made to
Mitchell in which he discussed intimidating Dugger not to
testify. Mitchell and Harris were both charged with conspiracy
to commit witness tampering.
Approximately one month before Mitchell’s trial was
scheduled to begin on January 30, 2012, his attorney learned
that there were recordings of Dugger’s phone calls made during
the month he spent in the Richmond city jail and that these
recordings could be obtained via subpoena. Included in these
calls were ones made by Dugger in which he attempted to bribe
another individual to claim ownership of the weapons found by
police the night of the raid at his apartment. Counsel obtained
the recordings approximately ten business days before trial,
and, after listening to many of the calls, estimated that the
total recordings amounted to as much as 120 hours. Counsel
filed a motion for a continuance three days prior to trial,
requesting more time to review the recordings because they might
impeach Dugger’s credibility. The district court denied the
motion, finding that counsel had had ample time to compile
evidence in preparation for trial.
At trial, the jury heard a recording of two phone
calls made by Mitchell to his brother the morning after the
encounter with Dugger outside the nightclub, in which Mitchell
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told his brother that Dugger would be a “no show” and that he
had “scared the shit out of [Dugger] last night.” The jury also
heard recorded conversations between Mitchell and his co-
defendant’s brother Christopher Harris, in which Mitchell,
referring to Dugger, said, “He said he ain’t gonna show.”
The jury found Mitchell guilty. Approximately three
weeks later, Mitchell filed, pro se, a motion for a new trial,
asserting that counsel had failed to obtain and present
exculpatory evidence — namely, Dugger’s recorded calls from the
Richmond city jail. After an evidentiary hearing at which
Mitchell’s trial counsel testified, the district court denied
the motion. The court imposed a 97-month sentence. Mitchell
noted a timely appeal.
(1) Denial of motion for continuance.
We review for abuse of discretion the district court’s
denial of a continuance. United States v. Williams, 445 F.3d
724, 739 (4th Cir. 2006). “[B]road discretion must be granted
trial courts on matters of continuances; only an unreasoning and
arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay violates the right to the
assistance of counsel.” Morris v. Slappy, 461 U.S. 1, 11-12
(1983) (internal quotation marks omitted). “The later that a
motion for a continuance is made, the more likely it is made for
dilatory tactics; hence, it is less likely that the district
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court arbitrarily denied the continuance.” United States v.
LaRouche, 896 F.2d 815, 824 (4th Cir. 1990). Even if the
defendant can demonstrate an abuse of discretion, he also “must
show that the denial specifically prejudiced [his] case.” Id.
at 823 (internal quotation marks omitted).
We find no abuse of discretion. First, counsel was
appointed to represent Mitchell on November 22, 2011, and was
informed by Mitchell about the recordings one month later.
Still, counsel waited two weeks to subpoena the recordings and,
after five days of attempting to review them, sought a
continuance only three days prior to trial. Further, for reasons
discussed below, Mitchell cannot show that he suffered prejudice
as a result of the denial of his motion.
(2) Denial of motion for new trial.
This court reviews a district court’s denial of a Rule
33 motion for a new trial for abuse of discretion. United
States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). To receive
a new trial based on newly discovered evidence, a defendant must
show that: (1) the evidence is newly discovered; (2) he has
been diligent in uncovering it; (3) the evidence is not merely
cumulative or impeaching; (4) the evidence is material to the
issues involved; and (5) the evidence would probably produce an
acquittal. United States v. Fulcher, 250 F.3d 244, 249 (4th
Cir. 2001). The trial court “should exercise its discretion to
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award a new trial sparingly, and a jury verdict is not to be
overturned except in the rare circumstance when the evidence
weighs heavily against it.” Smith, 451 F.3d at 216-17.
(internal quotation marks omitted).
Here, the evidence relied upon by Mitchell —
recordings of Dugger’s phone calls from jail almost a month
before the nightclub encounter — was not “newly discovered”
because Mitchell knew of the recordings (and they were
available) before his trial began. And, as the district court
properly concluded, the evidence “is impeachment, plain and
simple.” Further, we agree with the district court’s finding
that the jury would have reached the same result even had they
heard the recordings at issue.
Accordingly, we affirm. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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