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A judge’s rare decision to grant a new trial on two gun-related counts for a major marijuana dealer has been upheld by the 2nd U.S. Circuit Court of Appeals. Northern District of New York Judge Lawrence E. Kahn was vindicated in finding that the government failed to timely object to the lateness of defendant Steven Robinson’s requests to set aside the verdict and win a new trial. The circuit, in an opinion written by Judge Pierre Leval, said Kahn was correct to reject the government’s objection in United States v. Robinson, 04-0889-cr, and that Kahn did not abuse his discretion in granting a new trial. Robinson was said to be involved in drug turf wars when, on Oct. 11, 2000, he allegedly drove a white car down Swan Street in Albany and fired shots from the car, killing Jerome Johnson and wounding rival drug dealer Aukland Dubery and a third man, David Hood. While several witnesses testified they saw shots coming from the car, only Dubery identified Robinson as being present on the scene, and Dubery only did so after telling police at the crime scene and two days later at the hospital that he did not know who had shot him. This inconsistency was not the only problem that plagued Dubrey’s testimony. He also admitted that he had smoked three marijuana cigars in the six hours leading up to the shooting. And he only identified the defendant after his girlfriend went to the police and offered his cooperation in return for placement in the Witness Protection Progam for two years, benefits included. Other witness testimony was also contradictory as to whether Robinson was a passenger or the driver of the car, but that testimony was discredited at trial. These revelations did not prevent the jury on Nov. 18, 2002, from convicting Robinson on four counts — conspiracy to distribute more than 100 kilograms of marijuana, causing the death of another (Johnson) in the course of using a firearm in furtherance of the marijuana conspiracy and two counts of using a firearm in furtherance of the marijuana conspiracy. Robinson filed a timely motion on Nov. 26 for an extension of time to file post-trial motions to Dec. 19, with no objection from the government. On Dec. 18, Robinson made a second request for an extension, this time until Jan. 3, 2003, again without objection by the prosecutors. A snowstorm prevented mail delivery until Jan. 6, when Robinson filed his motion, technically three days late. On May 14, Kahn granted the motion for a new trial on two counts related to the Oct. 11 shooting — one count of causing the death of another in the course of using a firearm in furtherance of the marijuana conspiracy and one of the counts of using a firearm in furtherance of the marijuana conspiracy. IDENTIFICATION IMPEACHED The judge stressed that the identification of Robinson depended on Dubery’s testimony — and that testimony had been severely impeached. “The Court recognizes that the grant of a new trial is extraordinary,” Kahn wrote. “Having presided over several hundred trials in a thirty year period, this Court has upset jury verdicts only in a few exceptional cases, where judicial intervention was necessary to prevent a manifest injustice. This is one of those cases … “ The government moved for reconsideration, saying Robinson’s motions were not timely under Rules 33 and 45 of the Federal Rules of Criminal Procedure. Kahn denied the motion, and the case moved to the 2nd Circuit, where the government asserted that the time limits of Rule 33 are “jurisdictional,” and, therefore, Kahn lacked the jurisdiction to grant an extension beyond the time authorized by the rule. OBJECTION FORFEITED Leval said that the Supreme Court and the 2nd Circuit have, in the past, “characterized” such time limits as “jurisdictional,” but that the Supreme Court earlier this year in Eberhart v. United States, 126 S. Ct. 403 (2005) went out of its way to clarify the issue. Eberhart ruled that Rules 33 and 45 are “claims-processing rules, despite the confusion generated by the less than meticulous uses of the term ‘jurisdictional’ in our earlier cases.” Leval said, “Our case falls squarely under the holding of Eberhart. Just as in Eberhart, the government forfeited its objection to the untimeliness of Robinson’s motion by failing to raise the objection in a timely fashion and not raising the issue until after the court had granted Robinson’s motion for a new trial.” INTEREST OF JUSTICE The circuit then said that the standard for Rule 33, which allows a district court to “vacate any judgment and grant a new trial if the interest of justice so requires,” was met here. “Given the numerous circumstances which seriously impeached Dubery’s identification of Robinson, particularly his having twice earlier told the police that he did not know who his assailant was and the fact that he never saw Robinson with the gun, together with the paucity of other evidence implicating Robinson in the shooting, we cannot say the trial court abused its discretion in granting a new trial,” Leval said. The court ended by stating that it “expressed no view as to whether, if Robinson were retried and again convicted on substantially the same evidence, such a conviction could be properly set aside.” Leval was joined in the opinion by Chief Judge John M. Walker Jr. and Southern District of New York Judge Gerard Lynch, sitting by designation. Assistant U.S. Attorney Paul D. Silver and Senior Litigation Counsel Robert P. Storch represented the government. Frederick Rench of Pelagalli, Weiner & Rench represented Robinson.

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