Opinion
94 Cr. 533 (TPG).
April 17, 2000.
OPINION
On December 9, 1999 defendant filed a pro se motion under Fed.R.Crim.P. 33 or a new trial based on newly discovered evidence.
Defendant's trial occurred in 1995, and the verdict against him was rendered on October 11, 1995. For various reasons his sentence, and the ensuing appeal, were greatly delayed. Defendant's conviction was affirmed by the Court of Appeals on December 21, 1999, except for remanding one count for resentencing, which has yet to be carried out.
The Government opposes the granting of the motion on two grounds: (1) that it is untimely, and (2) that it lacks merit.
On the first point, the Government relies on the current version of Rule 33, which requires a motion for a new trial on the ground of newly discovered evidence to be made within three years after the verdict. However, at the time of the verdict the rule 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.
However, the motion is entirely without merit. The alleged newly discovered evidence is a letter said to have been written by Marie Rosado to Jamie Rodriguez dated August 4, 1997, which defendant states that he first obtained sometime in 1998. Rosado has pleaded guilty to being a member of the Raja Crew, which was the drug trafficking racketeering enterprise which defendant was convicted of being a member of. In the letter, Rosado purports to say that she told the prosecutor that the term "Raja Crew" was really a joke and that the term did not mean anything but fun. In his motion, defendant contends that this is new evidence showing that the Raja Crew could not be the basis of a racketeering conviction.
In the light of Rosado's numerous admissions as to the drug trafficking character of the Raja Crew, and the overwhelming evidence at the trial to this effect, there is no possibility that the Rosado letter, assuming that it was written by her, would constitute evidence warranting a new trial.
The motion for a new trial is denied.
SO ORDERED.