United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr. Judge
Bishop has filed several motions to the court seeking
post-trial relief. For the reasons that follow, the court
March 26, 2018, Mr. Bishop filed a motion for a suppression
hearing, a Franks hearing, and grand jury
transcripts. Those are motions that must be made before
trial. See Fed. R. Crim. P. 12(b)(3). The court has
authority to set a deadline for filing pretrial motions, and
can modify the deadline any time before trial. Fed. R. Crim.
P. 12(c)(1), (2). A motion made after the deadline is
untimely, though the court can consider the matter if the
defendant shows good cause. Fed. R. Crim. P. 12(b)(3).
court extended the deadline for Mr. Bishop to file pretrial
motions until November 13, 2017 [Doc. No. 42], and Mr. Bishop
(through counsel) filed a timely motion to suppress [Doc. No.
45], which the court denied in a written opinion on November
30 [Doc. No. 50]. Mr. Bishop's trial began on December
11, 2017 and concluded with a guilty verdict the next day.
Mr. Bishop filed this motion on March 26, 106 days after the
trial began. As mentioned above, his filing shows no good
cause to consider so untimely a filing, so the court DENIES
AS UNTIMELY Mr. Bishop's motion for a suppression
hearing, a Franks hearing, and grand jury
transcripts [Doc. No. 104].
court turns to the motion for a new trial. Mr. Bishop was
charged with discharge of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c),
and possession of marijuana with the intent to distribute
under 21 U.S.C. § 841(a)(1). Mr. Bishop moved to
suppress the evidence seized from his cell phone, contending
that the search warrant failed to specify with particularity
a description of the items to be seized. The court denied the
motion to suppress on November 30 [Doc. No. 50]. The case
went to trial in December. The court denied Mr. Bishop's
motion for acquittal at the close of the government's
case in chief [Doc. No. 65]. The jury found Mr. Bishop guilty
on all counts [Doc. No. 66].
Bishop is now before the court on his motion for new trial,
asking that the court to vacate the jury's verdict and
order a new trial. Fed. R. Crim. P. 33 governs motions for
new trial, and provides that: “Upon the defendant's
motion, the court may vacate any judgment and grant a new
trial if the interest of justice so requires . . . .”
Rule 33 motions are to be granted “sparingly and with
caution, ” and only in “exceptional cases.”
United States v. Reed, 875 F.2d 107, 113 (7th Cir.
1989); see also United States v. DePriest, 6 F.3d
1201, 1216 (7th Cir. 1993); United States v.
Morales, 902 F.2d 604, 605-606 (7th Cir. 1990).
Bishop argues that he is entitled to a new trial under Fed.
R. Crim. P. 33, because the court erred in denying his motion
to suppress and in allowing the government to introduce
evidence retrieved from his cell phone and his automobile.
The court previously considered Mr. Bishop's argument
about the evidence retrieved from his cell phone, gave
detailed reasons for rejecting it on November 30, and sees no
reason to add anything to that ruling. With respect to the
newly raised argument concerning the automobile and
affidavit(s), Mr. Bishop didn't raise the argument before
trial and didn't show good cause for not raising the
argument before trial. See Fed. R. Crim. P.
12(b)(3)(C). Mr. Bishop's argument for the court to
suppress the evidence is waived.
Mr. Bishop argues that the affidavit used to secure the
search warrants contained falsified information and that a
hearing should be held pursuant to Franks v.
Deleware, 438 U.S. 154 (1978). A defendant may establish
a constitutional violation under Franks by showing
an intentional or reckless omission of evidence, but the
facts withheld also must be material to the probable cause
determination. Whitlock v. Brown, 596 F.3d 406, 410
(7th Cir. 2010).
government responds that Mr. Bishop hasn't identified
which statements in the affidavit were allegedly false. Mr.
Bishop appears to claim simply that there were conflicting
accounts from witnesses, that some of those accounts were
false, and that some of those accounts didn't implicate
him. That, the government says, was precisely why police
sought a search warrant-they were attempting to unravel and
test the variety of witness accounts. Discrepancies in
witness stories were disclosed to state court when the
warrant was sought. Mr. Bishop makes several arguments in
reply: there are several “inconsistencies”
between the affidavit(s) and the officer's testimony at
trial; “the warrant itself does not state what the AUSA
is stating in [the response to Mr. Bishop's motion to
suppress]. The AUSA is using his power to mislead the
court”; and the “context of the search warrant
has been changed, ” because the warrant was related to
two Indiana state charges instead of his federal offenses.
court and the government were well aware that the witnesses
made inconsistent statements, and the government conceded to
such in its response to Mr. Bishop's motion to
suppress. But the affidavit doesn't show that
the detective made a “reckless or intentional”
omission of evidence. An affidavit supporting a warrant must
be “read as a whole and in a realistic and common sense
manner.” United States v. Norris, 640 F.3d
295, 302 (7th Cir. 2011) (citing United States v.
Wiley, 475 F.3d 908, 915 (7th Cir.2007) (quoting
United States v. Newsom, 402 F.3d 780, 782 (7th Cir.
2005))). Other aspects of the affidavit-(1) the Wal-Mart
parking lot surveillance video; (2) the officer locating the
casing to the gun used on the shooting, along with shattered
glass; (3) the victim's vehicle found with a broken front
window; and (4) statements from witnesses placing Mr. Bishop
at the scene with the victim-all strongly suggest that there
was a shooting in the course of a drug transaction. See
United States v. Norris, 640 F.3d at 302. Detective
Ticknor's omissions weren't material to the
probable-cause determination. Mr. Bishop's last argument
is without merit; the changes listed in the search warrant
are immaterial to the constitutionality of the search
Bishop also brings an infective assistance of counsel claim
against his former attorney, David Wemhoff. Mr. Bishop says
that Mr. Wemhoff “did not represent [Mr. Bishop] to the
best of his abilities.” Mr. Bishop says Mr. Wemhoff
didn't ask questions that he wanted him to ask, and
didn't raise the argument that the detectives were
“stating perjury” during live testimony. Mr.
Wemhoff allegedly told Mr. Bishop that “it was his call
not to” raise the questions Mr. Bishop wanted him to
ask. Mr. Bishop points to Strickland v. Washington,
466 U.S. 668 (1984) to assert that Mr. Wemhoff's
representation fell below the “objective standards of
reasonableness” and, as a result, Mr. Bishop has
“suffered prejudice.” To prevail on his
ineffective assistance of counsel claim, Mr. Bishop must
satisfy the two-prong test under Strickland v.
Washington. He must show that his “counsel's
actions were not supported by a reasonable strategy and that
the error was prejudicial.” Cooper v. United
States, 378 F.3d 638, 640-641 (7th Cir. 2004)
(quoting Massaro v. United States, 538 U.S. 500,
citing, inter alia, Strickland v. Washington, 466
U.S. at 688-694). Defense counsel is “strongly presumed
to have rendered adequate assistance and to have made
significant decisions in the exercise of his or her
reasonable professional judgment.” United States v.
Traeger, 289 F.3d 461, 470 (7th Cir. 2002). Courts
“presume that counsel made reasonable strategic choices
unless the defendant presents evidence rebutting that
presumption.” Id. at 472.
Bishop can't establish that the detectives committed
perjury during live testimony. Mr. Wemhoff's decision to
refrain from asking questions was in the exercise of his
reasonable professional judgment, and because no error
exists, Mr. Bishop can't show that he was prejudiced as a
result. Accordingly, the court DENIES Mr. Bishop's motion
for new trial [Doc. No. 92].