Opinion
Case No. 1:CR-04-283-02.
May 19, 2005
MEMORANDUM AND ORDER
I. Background
On January 12, 2005, the Marlowe Defendants were found guilty on all counts charged in the indictment specific to them. At that time, they were advised that they had seven days to file post-trial motions. On January 18, 2005, counsel for Frederick Marlowe filed a motion for an extension of time to file post-trial motions by February 2, 2005. This motion was also filed on behalf of co-defendant Kevin Marlowe. The motion was unopposed by the Government.
On February 1, 2005, this court granted the motion for extension of time to February 2, 2005. Up to that point, neither counsel made inquiry to the court concerning the status of the ruling on their motion. Frederick Marlowe filed his motion for post-trial relief on February 1, 2005. Co-defendant Kevin Marlowe filed his motion for post-trial relief on February 2, 2005. This memorandum and order addresses Frederick Marlowe's post-trial motion. II. Discussion
The delay in said ruling is inexplicable. Motions for extensions are ruled upon on the day the motion is filed or the day immediately thereafter.
Kevin Marlowe's motion has been addressed by a separate order dated May 17, 2005.
The Government has raised the issue that post-trial relief should be denied because the court is without jurisdiction to entertain the motions pursuant to Federal Rule of Criminal Procedure 33(b)(2). This section reads as follows:
Defendant has not set forth the rule upon which he brings his request for relief. The Government presumes he seeks relief under Rule 33. No reply brief has been filed disputing this assumption.
(2) Other Grounds. Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days after the verdict or finding of guilty, or within such further time as the court sets during the 7-day period.
Fed.R.Crim.P. 33(b)(2) (emphasis added). A court lacks jurisdiction when it fails to grant an appropriate extension within the seven-day period after the verdict, even when the motion itself is timely. United States v. Marquez, 291 F.3d 23, 27 (D.C. Cir. 2002). The only issue, however, that Defendant Frederick Marlowe raises has been preserved on the record and can be the subject of a direct appeal. Id. at 29. Defendant suffers no prejudice in not having this court address his motion.
III. Order IT IS THEREFORE ORDERED THAT Defendant Frederick Marlowe's motion for post-trial relief is DISMISSED.