Opinion
Case No. CR-3-04-003.
May 15, 2006
This matter comes before the Court pursuant to Defendant's Motion for Judgment of Acquittal or, in the alternative, Motion for New Trial pursuant to Rule 29 and 33 of the Federal Rules of Criminal Procedure (Doc. #72) filed October 28, 2005. The government filed a response (Doc. #73) to said Motion on November 11, 2005 followed by Defendant's reply (Doc. #84) filed April 13, 2006. The Court conducted a hearing on said Motion December 8, 2005. Just prior to the Court issuing this Entry and Order Defendant filed an additional pleading (Doc. # 87) which was entitled "Motion for newly discovered evidence up under Rule 33(b)(1)."
Although the Court did conduct a hearing on said Motion, along with other Motions filed by Defendant, it is not contested that the Defendant's Motion was filed approximately five (5) months after the jury trial was conducted and verdict returned in this case. Based upon the holdings in Carlisle v. United States, 517 U.S. 416, 420-421 (1996) and Eberhart v. United States ___ U.S. ___ 2005 WL2838595 (2005), this Court is without jurisdiction to grant a Motion for an acquittal and/or new trial under Federal Criminal Rule 29 or 33. It is obvious to the Court that Defendant's alleged ineffective assistance of counsel claim which is the basis for said Motions was not newly discovered subsequent to the trial, but was existent at the time of trial. Defendant offered no new evidence, just assertions.
Defendant's Motions are not well-founded and therefore DENIED.
IT IS SO ORDERED.