Opinion
CR No. 99-27-FR
January 3, 2001
Kristine Olson, United States Attorney, Stephen F. Peifer, Assistant United States Attorney, 1000 S.W. Third Avenue, Suite 600, Portland, Oregon 97204-2902, Attorneys for Plaintiff.
Tony E. Rollman, 4900 S.W. Griffith Drive, Suite 253, Beaverton, Oregon 97005, Attorney for Defendant.
OPINION AND ORDER
The matter before the court is the defendant's motion for a new trial (#61).
BACKGROUND
On May 18, 2000, a jury found the defendant guilty of mailing a threatening communication as charged in the indictment. On November 20, 2000, the defendant filed a motion for a new trial on the grounds that a juror who had been a nurse at the Columbia River Correctional Institution should not have been allowed to serve on the jury.
APPLICABLE LAW
Rule 33 of the Federal Rules of Criminal Procedure provides:
On a defendant's motion, the court may grant a new trial to that defendant if the interests of justice so require. If trial was by the court without a jury, the court may — on defendant's motion for new trial — vacate the judgment, take additional testimony, and direct the entry of a new judgment. A motion for new trial based on newly discovered evidence may be made only within three years after the verdict or finding of guilty. But if an appeal is pending, the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds may be made only within 7 days after the verdict or finding of guilty or within such further time as the court may fix during the 7-day period.
In United States v. Hazeem, 679 F.2d 770, 774 (9th Cir.), cert.denied, 459 U.S. 848 (1982), the court concluded that "since Hazeem's motion [for a new trial] was not based on newly discovered evidence it was not timely under Fed.R.Crim.P. 33. The trial court was without jurisdiction to consider the motion . . . and the denial of the motion for a new trial was proper." In United States v. Hanoum, 33 F.3d 1128, 1130 (9th Cir. 1994), the court explained that "a Rule 33 motion based upon `newly discovered evidence' is limited to where the newly discovered evidence relates to the elements of the crime charged."
CONTENTIONS OF THE PARTIES
The defendant moves the court for a new trial on the grounds that one of the jurors indicated that she had been employed at the Columbia River Correctional Institution as a nurse, but that she had not met the defendant. The defendant contends that he was incarcerated at this institution while the juror was so employed, and that the juror had treated him medically and interacted with him on several occasions. The defendant contends that the juror's misstatements were prejudicial to his obtaining a fair trial.
The government contends that the court lacks jurisdiction because the motion for a new trial was not timely filed, and that the defendant has failed to make the required showing of prejudice on the merits.
RULING OF THE COURT
The defendant has not met the requirements of Rule 33 by showing newly discovered evidence relating to the elements of the crime charged. The claim of prejudice relates to the conduct of the trial, not to the elements of the crime charged. This court lacks jurisdiction to consider the defendant's motion for a new trial. Assuming that the court had jurisdiction, this motion is not supported in any manner by evidence of misstatement on the part of the juror or of prejudice to the defendant.
IT IS HEREBY ORDERED that the defendant's motion for a new trial (#61) is DENIED.