Opinion
No. 93 Cr. 549 (JFK).
August 20, 2001
MEMORANDUM OPINION AND ORDER
Before the Court is the pro se Motion of Petitioner Jaime Rodriguez ("Rodriguez"), in which Steven Camacho ("Camacho"), and Antonio Feliciano ("Feliciano") join, for a new trial pursuant to Federal Rule of Criminal Procedure 33. Petitioners base their motion on allegations of Government misconduct and perjury by the Prosecution's cooperating witness. For the reasons outlined below, Petitioners' motion is denied.
BACKGROUND
The factual background of this case has been set forth in detail in the Second Circuit's affirmance of defendants' July 27, 1994 conviction, familiarity with which is assumed. See U.S. v. Hernandez, 85 F.3d 1023 (2d Cir. 1996) ("Hernandez I"). Only a general summation of the facts relevant to the present motion will be provided.
On July 27, 1994, after a two week trial, Camacho, Rodriguez and Feliciano were convicted of various offenses, including narcotics and weapons violations, subornation of perjury and obstruction of justice. On November 10, 1994, this Court sentenced Camacho and Rodriguez to 25 years' imprisonment, and on December 14, 1994, this Court sentenced Feliciano to consecutive 63 and 60-month terms of imprisonment (for a total of ten years and three months). All three defendants subsequently appealed their convictions. The Court of Appeals for the Second Circuit vacated the defendants' convictions and sentences under 18 U.S.C. § 924 (c)(1), in light of the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 143 (1995), affirmed the remainder of the convictions, and remanded the case to this Court for re-sentencing of the remaining counts.
The Court, with the consent of the Government, dismissed one obstruction of justice count prior to trial, and Rodriguez was acquitted of one count of mailing a threatening communication to a witness.
The Supreme Court in Bailey held that in order to convict someone for use of a firearm during and in relation to a drug trafficking crime there had to be "evidence sufficient show an active employment of the firearm by the defendant." 516 U.S. at 413 (emphasis in original). The Government conceded in this case that, following Bailey, the Petitioners' § 924(c)(1) convictions should be vacated.
On remand, this Court held that each defendant's sentence warranted a two level enhancement pursuant to U.S.S.G. § 201.1(b)(1). Camacho and Rodriguez's sentences on the drug trafficking counts were increased to 25 years in prison and Feliciano's sentence on the same counts was increased to eight years and one month in prison. The defendants appealed their increased sentences, but their appeals were summarily denied. See United States v. Hernandez, 122 F.3d 1058 (2nd Cir. 1997) ("Hernandez II"). In July of 1998, defendants filed a consolidated petition under 28 U.S.C. § 2255, alleging ineffective assistance of counsel, which this Court denied. See Camacho v. United States, 98 CIV 7057, 1999 WL 600523 (S.D.N Y Aug. 10, 1999).
On July 8, 1999, approximately five years after their convictions, the defendants filed the present motion for a new trial pursuant to Federal Rule of Criminal Procedure 33. The petitioners base their motion on allegations of perjury by Jose Crespo, the Government's sole cooperating witness, and allegations of government misconduct.
DISCUSSION
Prior to 1998, a motion pursuant to Rule 33 had to be filed "before or within two years after final judgment." Fed.R.Crim.P. 33 (amended 1998). Rule 33 was amended in 1998, and the amended Rule, which was in effect at the time this Motion was filed, provides that "[a] motion for a new trial based on newly discovered evidence may be made only within three years after the verdict or finding of guilty." Fed.R.Crim.P. 33. Petitioners were found guilty on July 27, 1994. Consequently, under the current version of Rule 33, in order for Petitioners' motion to be timely they would have had to file by July 26, 1997. Therefore, the instant Motion was filed nearly two years too late under the version of the Rule in effect at the time Petitioners' filed this motion.
Petitioners claim, however, that their motion for a new trial pursuant to Rule 33 is governed by the earlier version of Rule 33, since that was the Rule in effect at the time of the crimes and the subsequent indictment, trial, verdict, sentencing, re-sentencing, appeals and earlier § 2255 motion. The Second Circuit has not addressed the question of what version of Rule 33 applies in cases where, like here, the motion was filed after the Rule was amended but the relevant criminal conduct and all court proceedings occurred before the Amended Rule took affect. Since Petitioners' motion would be untimely under either version of the Rule, it is not necessary to resolve this question at this time.
Before Rule 33 was amended, in order for a motion to be timely it had to be filed before or within two years after "final judgment," see Fed.R.Crim.P. 33 (amended 1998), and the Second Circuit has held that in cases where convictions have been affirmed this period starts on the date the court of appeals issues its mandate to the district court. See United States v. Reyes, 49 F.3d 63, 68 (2d Cir. 1995). In the instant case the Court of Appeals mandate affirming Petitioners' convictions in part was issued on July 3, 1996, and so a timely Rule 33 motion would have had to have been filed by July 2, 1998. Since Petitioners did not file their Motion until July 8, 1999, the motion was over one year late and must be dismissed as untimely.
Petitioners contend that the relevant Circuit Court mandate is not the July 3, 1996 mandate, but rather the mandate affirming their increased sentences, which was issued by the Court of Appeals on July 9, 1997. If that were the relevant mandate, Petitioners' motion would have been timely. The Second Circuit has held, however, that the limitations period begins once the mandate regarding the direct appeal is issued; subsequent filings and proceedings, whether petitions to the Supreme Court for certiorari or collateral attacks on the conviction, are simply irrelevant for determining the timeliness of a Rule 33 petition. See United States v. Lussier, 219 F.3d 217, 219-20 (2d. Cir. 2000); see also United States v. White, 557 F.2d 1249 (8th Cir. 1977) (holding that the two-year period begins to run from the date on which the mandate in the direct appeal issued, not from the date on which petitioner was resentenced); Howell v. United States, 172 F.2d 213 (4th Cir. 1949) (same). As the Eighth Circuit noted in White, "[t]he purpose behind the two-year limitation in Rule 33 is to cut off claims concerning the question of guilt or innocence at a certain time after trial. To allow such a motion . . . solely because [the defendant] was resentenced would circumvent the purpose behind the rule." 557 F.2d at 1251.
The appellate process was complete in this case when the Court of Appeals affirmed the Petitioners' convictions on all but one count; the case was remanded only for consideration of whether, pursuant to U.S.S.G. § 2D1.1(b)(1), Petitioners' sentences on the remaining counts should be altered in light of the fact that the conviction on Count Three was vacated. See Hernandez I, 85 F.3d at 1031-32. Once the Circuit Court issued its mandate on July 3, 1996, affirming Petitioners' convictions, the Rule 33 clock began to run. Therefore, under the former version of Rule 33, Petitioners filed the instant Rule 33 motion more than one year too late.
The time limits set forth in both the pre and post-amendment Rule 33 are jurisdictional in nature. See Lussier, 219 F.3d at 220; see also United States v. Moreno, 181 F.3d 206, 212 (2d Cir. 1999). Because Petitioners' motion for a new trial is untimely under both the former and the amended version of Rule 33, this court lacks jurisdiction to grant them a new trial and Petitioners' motion must be denied.
CONCLUSION
For the reasons outlined above, Petitioners' motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 is denied. This case is closed, and the Court directs the Clerk of Court to remove this case from the Court's active docket.
SO ORDERED.