Opinion
S12 94 Cr. 313 (CSH)
July 11, 2001
MEMORANDUM OPINION AND ORDER
Steven Camacho and Jaime Rodriguez were convicted of various racketeering acts in June of 1996 and now move pursuant to Rule 33 of the Federal Rules of Criminal Procedure for a new trial on the basis of newly discovered evidence. Defendants made two prior motions for a new trial, both of which were denied. United States v. Camacho, No. S12 94 Cr. 313, 1998 WL 472844 (S.D.N.Y. Aug. 10, 1998); United States v. Camacho, No. S12 94 Cr. 313, 1999 WL 1084229 (S.D.N.Y. Dec. 1, 1999). Judgment was entered against Rodriguez on April 11, 2000, and he filed a notice of appeal on April 20, 2000. Judgment was entered against Camacho on June 19, 2000, and he filed a notice of appeal on June 21, 2000. The Second Circuit Court of Appeals permitted defendants to withdraw their appeals without prejudice so that this Court could consider defendants' motion for a new trial.
A district court has jurisdiction to consider a motion for a new trial in a criminal case only within the time limits prescribed by Rule 33. United States v. Lussier, 219 F.3d 217, 220 (2d Cir. 2000). Even if the parties do not contest jurisdiction, a court must evaluate whether it has jurisdiction on its own initiative. Neither defendant Camacho nor the government addresses the Court's jurisdiction, and defendant Rodriguez incorrectly states that the applicable time limit is three years from final judgment. In fact, the current version of Rule 33 requires that a motion for a new trial based on newly discovered evidence be filed within three years of the verdict. The version in effect prior to December 1, 1998, required that such a motion be filed within two years of final judgment, i.e. the issuance of a mandate from the appellate court if an appeal is taken. Lussier, 219 F.3d at 218-19, reaffirming United States v. Reyes, 49 F.3d 63 (2d Cir. 1995).
This Court does not have jurisdiction if the current version of Rule 33 applies to defendants' motion, but it does have jurisdiction if the prior version applies. The jury announced its guilty verdicts on June 26, 1996. Under the current version of Rule 33, the time for filing a motion for a new trial would have expired on June 26, 1999. Defendants filed this motion on March 30, 2001. However, since defendants have not yet completed their appeal, the motion would be timely under the prior version of Rule 33.
Camacho's motion for a new trial by was filed with the Court on March 30, 2001. Rodriguez's motion was not officially served and filed with the Court until July 2, 2001, although the Court had received a courtesy copy of the motion well prior to that date.
An amended rule of procedure is generally applicable to cases commenced after the amendment's effective date and, "insofar as just and practicable," to pending cases. United States v. Bowler, No. 99-31370, 2001 WL 568714, at *3-5 (5th Cir. May 25, 2001), interpreting Order of April 24, 1998 of the Supreme Court of the United States Adopting and Amending the Federal Rules of Criminal Procedure, 523 U.S. 1229. Since this case was commenced prior to the effective date of amendment of Rule 33, the new rule should only apply if to do so would be just and practicable. A district court in this circuit has held that it would be unfair to apply the current version of Rule 33 to pending cases where the three-year time period would have elapsed prior to the effective date of amendment, December 1, 1998:
[A]t the time of the verdict [Rule 33] provided that such a motion could be made within two years following final judgment. The amendment of the rule did not become effective until December 1, 1998, more than three years after the verdict.
It would be entirely anomalous to apply the current time limit to defendant's motion. Doing so would mean that Soler's motion was barred before the revision of Rule 33 even came into effect. Soler surely had a right to rely on the old version of Rule 33 as long as it was effective. There is no sensible and fair way to apply the new rule to him. The old rule must govern, and under that rule the motion is timely.United States v. Soler, No. 94Cr. 533, 2000 WL 385514, at *1 (S.D.N.Y. Apr. 17, 2000); see also Lussier, 219 F.3d at 218-19 (not deciding whether amended rule applies to motion for new trial filed before effective date of amendment). Courts in other circuits have come to the same conclusion. Bowler, 2001 WL 568714, at *2-5 ("It would not be just and practicable to apply the new rule to [this] Rule 33 motion because that would have required Bowler to file the motion five months before the effective date of the new rule."); United States v. Jasin, No. Crim. 91-602-08, 2000 WL 1793397, at *2 (E.D. Pa. Nov. 22, 2000) ("[T]he Court will apply to this case the rule relating to new trials based on newly discovered evidence as it existed when defendant was convicted, not as amended while his conviction was on appeal.").
In this case, the time period under the amended Rule 33 would have elapsed on June 26, 1999, nearly seven months after the effective date of amendment. I am not aware of any reported cases that have dealt with precisely this situation, that is, where a verdict was reached prior to the effective date of amendment, and the three-year time period would have elapsed alter the effective date.
In United States v. Cavender, 228 F.3d 792, 802 (7th Cir. 2000), the Seventh Circuit cited and applied the current version of Rule 33 to a motion for new trial in a case in which the verdict was reached on June 19, 1998, less than six months before the new rule came into effect. The court held that the motion was not made on the basis of "newly discovered evidence" and therefore that defendants' time to make their motion expired seven days after the verdict. The jurisdictional provision in Rule 33 for motions on grounds other than newly discovered evidence was unaffected by the 1998 amendment. Fed.R.Crim.P. 33 advisory committee notes.
None of the three parties to this case has briefed the threshold question of the Court's subject matter jurisdiction over the defendants' Rule 33 motions. It would not be appropriate for the Court to rule on the point without giving counsel an opportunity to be heard.
Accordingly, the parties are directed to file and serve briefs addressing the timeliness of the Rule 33 motions on or before July 31, 2001.
It is SO ORDERED.