Opinion
CASE NO: 2:08-cr-160-FtM-29DNF
06-05-2018
UNITED STATES OF AMERICA v. JACOB BEN-ARI
OPINION AND ORDER
This matter comes before the Court on defendant's Motion For New Trial (Doc. #304) and Memorandum (Doc. #305) filed on February 22, 2016. Defendant filed an Affidavit (Doc. #306) on February 29, 2016. The Government's Response (Doc. #300) was filed on February 1, 2016, and defendant's Reply (Doc. #307) was filed on March 14, 2016. Defendant seeks to set aside or void his conviction, and for a new trial pursuant to Federal Rule of Criminal Procedure 33 based on newly-discovered evidence.
The previously filed Motion for New Trial (Doc. #297) will be denied as moot. --------
On October 22, 2008, the grand jury returned an Indictment (Doc. #5) charging defendant in Counts One through Six with a scheme to defraud victims of money and property through false pretenses, representations, and promises. On December 16, 2009, the grand jury returned a Superseding Indictment (Doc. #68) alleging Three Counts of a scheme to defraud. Defendant was appointed several new attorneys before finally commencing trial on September 14, 2010. (Doc. #130.) The government dismissed Count Three on the first day of trial, and on September 21, 2010, the jury returned a verdict of guilty on Counts One and Two on day five of trial. (Docs. #130, #137, #140.) The jury also returned a Supplemental Verdict (Doc. #141) as to forfeiture of a Scottrade Account.
On August 12, 2011, defendant was sentenced to 72 months as to each count to be served concurrently followed by a term of supervised release. (Doc. #236.) Judgment (Doc. #239) was filed on August 15, 2011. On September 5, 2013, the Eleventh Circuit affirmed, including on the issue of his remand into custody, and a Mandate (Doc. #295) was issued on December 6, 2013. The initial motion for new trial was filed on January 20, 2016.
"Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty." Fed. R. Crim. P. 33(b)(1). Therefore, any motion for a new trial had to be filed within 3 years of September 21, 2010. The motion was filed on January 20, 2016. As the motion was not filed within 3 years of the verdict or finding of guilt, it will be denied as untimely.
Accordingly, it is hereby
ORDERED:
1. Defendant's Motion for New Trial (Doc. #297) is DENIED as moot.
2. Defendant's Motion for New Trial (Doc. #304) is DENIED as untimely.
DONE and ORDERED at Fort Myers, Florida, this 5th day of June, 2018.
/s/_________
JOHN E. STEELE
SENIOR UNITED STATES DISTRICT JUDGE Copies:
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