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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 18, 2002 Decided April 8, 2003
No. 02–3034
UNITED STATES OF AMERICA,
APPELLANT
v.
DENNIS HALL,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 98cr00435–01)
Chrisellen R. Kolb, Assistant United States Attorney, ar-
gued the cause for the appellant. Roscoe C. Howard, Jr.,
United States Attorney, and John R. Fisher, Thomas J.
Tourish, Jr., and Daniel M. Cisin, Assistant United States
Attorneys, were on brief.
A.J. Kramer, Federal Public Defender, argued the cause
for the appellee.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: GINSBURG, Chief Judge, HENDERSON, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The United
States appeals the district court’s grant of a new trial to
Dennis Hall. The district court determined that Hall’s coun-
sel’s failure to timely file a motion for a new trial constituted
‘‘newly discovered evidence’’ under FED. R. CRIM. P. 33(b)(1)
supporting its grant of Hall’s new trial motion. United States
v. Hall, Crim. No. 98–435–LFO, at 4 (D.D.C. Feb. 7, 2002)
(mem.) (Appendix (App.) Tab I). The United States argues
that the district court erred because the newly discovered
evidence that provides the basis for a new trial motion must
have been in existence at the time of trial and the ‘‘evidence’’
on which Hall’s motion is based occurred following trial. We
agree and therefore reverse the district court.
I.
This is the second time we have reviewed the district
court’s grant of a new trial to Hall. See United States v.
Hall, 214 F.3d 175 (D.C. Cir. 2000). His conviction of posses-
sion of a firearm and ammunition by a felon in violation of 18
U.S.C. § 922(g) and of possession of marijuana in violation of
21 U.S.C. § 844(a) resulted from a jury verdict returned on
May 5, 1999. During trial, Hall had objected to the govern-
ment’s closing argument claim that Hall’s counsel had ‘‘played
the race card’’ and requested that the jury be instructed to
disregard the remark. The trial court deferred ruling on
Hall’s objection until ‘‘after we have a verdict.’’ Hall’s trial
counsel waited until May 14, 1999, the seventh business day
after the verdict, before moving for an extension of time to
file a motion for a new trial. The district court did not rule
on the requested extension until June 3, 1999 when it granted
the extension request nunc pro tunc, extending the deadline
to file a new trial motion until June 10, 1999. Id. Hall
subsequently moved for a new trial and on October 1, 1999
3
the district court granted Hall’s motion. The United States
appealed.
We reversed, explaining that FED. R. CRIM. P. 33(b)(2)’s
seven-day time limit1 is jurisdictional. Hall, 214 F.3d at 178.
Under Rule 33(b)(2), we held, the district court has jurisdic-
tion to rule on a motion for a new trial only if the motion is
made no later than seven days after the verdict unless the
district court grants an extension before the seven-day limit
expires. Id. Because Hall failed to timely file a new trial
motion and the district court did not extend Hall’s deadline
within the seven-day period, we concluded that the district
court lacked jurisdiction to grant Hall’s new trial motion. Id.
We reversed and remanded for sentencing. Hall was subse-
quently sentenced and he then filed an appeal.
While his appeal was pending, Hall filed a second new trial
motion. App. Tab F. This time, he asserted that the district
court had jurisdiction to grant his motion based on ‘‘newly
discovered evidence.’’ Id. at 4–7. Rule 33(b)(1) permits a
motion for a new trial based on newly discovered evidence if
made ‘‘within 3 years after the verdict.’’ FED. R. CRIM. P.
33(b)(1). Hall’s newly discovered evidence was his discovery
of an ineffective assistance of counsel claim based on his
counsel’s failure to timely file a new trial motion. App. Tab
F.
The district court agreed, concluding that Hall’s complaint
about his counsel’s post-trial mistake gave it jurisdiction
under Rule 33(b)(1) to consider, and grant, his motion. App.
Tab. I at 4. Rejecting contrary decisions from the fourth,
fifth and ninth circuits,2 id. at 3, and citing dictum from our
1 ‘‘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).
2 These courts held that ‘‘information supporting an ineffective
assistance claim is not ‘evidence’ within the meaning of Rule 33 and,
therefore, that a motion for a new trial predicated on ineffective
assistance of counsel must be brought, if at all, within seven days of
judgment regardless of when the defendant becomes aware of the
4
decision in United States v. Torres, 115 F.3d 1033, 1037 (D.C.
Cir. 1997), that there the court had ‘‘no need to endorse [the
other circuits’] rule,’’ the district court concluded that we
would not bar a Rule 33(b)(1) motion based on an ineffective
assistance claim so long as ‘‘Hall did not TTT know the facts
supporting his ineffective assistance of counsel claim at the
time of trial.’’ App. Tab. I at 3. Because the error occurred
‘‘after trial, when Hall was no longer present and able to
observe counsel’s actions,’’ the trial judge declared, informa-
tion about the error was ‘‘ ‘newly discovered evidence,’ not
known to Hall at the time of trial.’’ Id. at 3–4. Having
satisfied itself of its jurisdiction, it then held that the prosecu-
tor’s comments during trial were unfairly prejudicial, making
Hall’s motion meritorious. Id. at 5–9. It further declared its
intention ‘‘to grant the defendant’s motion for a new trial
upon remand of jurisdiction from the Court of Appeals.’’ Id.
at 9. On our remand of Hall’s then pending appeal, United
States v. Hall, No. 01–3017 (D.C. Cir. Mar. 12, 2002), the
district court granted Hall’s motion. United States v. Hall,
Crim. No. 98–435–LFO (D.D.C. Mar. 15, 2002) (App. Tab J).
The United States now appeals that order.
II.
Although we ordinarily review an order granting a new
trial for abuse of discretion, here we consider de novo the
purely legal question before us, namely whether the fact that
Hall’s counsel failed to timely move for a new trial, a fact Hall
first ‘‘learned of’’ when we reversed the trial court’s grant of
the untimely motion, constitutes newly discovered evidence
under FED. R. CRIM. P. 33(b)(1). Torres, 115 F.3d at 1035;
United States v. Lafayette, 983 F.2d 1102, 1105 (D.C. Cir.
1993). FED. R. CRIM. P. 33 provides two jurisdictional bases
facts which suggested [a defendant’s] attorney’s performance may
have been constitutionally inadequate.’’ United States v. Smith, 62
F.3d 641, 648–49 (4th Cir. 1995); see also United States v. Hanoum,
33 F.3d 1128, 1130–31 (9th Cir. 1994), cert. denied, 514 U.S. 1068
(1995); United States v. Ugalde, 861 F.2d 802, 807–09 (5th Cir.),
cert. denied, 490 U.S. 1097 (1989).
5
for a motion for a new trial—if a motion is made: ‘‘grounded
on newly discovered evidence TTT within 3 years after the
verdict or finding of guilty’’ or ‘‘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.’’ FED. R. CRIM. P. 33(b);3
United States v. Marquez, 291 F.3d 23, 26–28 (D.C. Cir.), cert.
denied, 123 S. Ct. 329 (2002); Hall, 214 F.3d at 177. Rule
33(b)(2) having been foreclosed, the district court had juris-
diction to grant Hall’s motion only if his trial counsel’s error
constitutes newly discovered evidence under the Rule.
Hall alleges as the basis of his motion his post-trial discov-
ery of an ineffective assistance of counsel claim. The district
court discussed the circuit split regarding the treatment of
ineffective assistance evidence as ‘‘newly discovered evidence’’
under FED. R. CRIM. P. 33(b)(1). Some circuits have held that
ineffective assistance evidence does not constitute ‘‘newly
discovered evidence’’ under the Rule in view of the purpose of
including newly discovered evidence as a basis for a new trial
motion, that is, to afford relief if evidence later surfaces
directly affecting proof of guilt or innocence. United States
v. Smith, 62 F.3d 641, 648–49 (4th Cir. 1995); United States
v. Hanoum, 33 F.3d 1128, 1130–31 (9th Cir. 1994), cert.
denied, 514 U.S. 1068 (1995); United States v. Ugalde, 861
F.2d 802, 807–09 (5th Cir.), cert. denied, 490 U.S. 1097 (1989).
These courts conclude that whether counsel was ineffective at
trial sheds no light on the defendant’s guilt or innocence;
accordingly, it should not be the basis for a Rule 33(b)(1)
motion. Ugalde, 861 F.2d at 807–09. On the other hand, the
Tenth Circuit has held that ineffective assistance evidence
may be the basis of a new trial motion based on newly
discovered evidence so long as the evidence is truly ‘‘newly
discovered’’—i.e., so long as the facts relevant to counsel’s
deficiency were ‘‘not known to the defendant until after trial.’’
United States v. Johnson, 12 F.3d 1540, 1548 (10th Cir. 1993);
3 We note that on December 1, 2002 Rule 33 was amended as
part of a general restyling of the Federal Rules of Criminal
Procedure. The changes were intended to be ‘‘stylistic only.’’ FED.
R. CRIM. P. 33 advisory committee’s note.
6
see also United States v. Kladouris, 739 F. Supp. 1221, 1225–
27 (N.D. Ill. 1990) (citing United States v. Brown, 476 F.2d
933, 935 n.11 (D.C. Cir. 1973) (per curiam)).4 None of these
cases, however, discusses the crucial issue in this case—
whether ‘‘evidence’’ that does not exist until after trial can be
‘‘newly discovered evidence’’ under FED. R. CRIM. P. 33(b)(1).
We have previously held that under Rule 33, ‘‘to justify a
new trial, ‘newly discovered evidence’ must have been exis-
tence at the time of trial.’’ Lafayette, 983 F.2d at 1105. In
Lafayette we held that evidence that a police officer who
testified at trial against the defendants began using drugs
after trial was not ‘‘newly discovered evidence.’’ Id. As we
explained, ‘‘[e]vents and transactions occurring after the trial
obviously could not have been the subject of testimony at the
trial,’’ and, accordingly, such events would have had no effect
on the trial’s outcome and should not be the basis for vacating
the conviction. Id. The Seventh Circuit has used the same
reasoning. United States v. Bolden, 355 F.2d 453, 461 (7th
Cir. 1965) (evidence that witness was convicted of counterfeit-
ing following defendant’s trial ‘‘was not evidence that was in
existence at the time of the defendant’s trial and therefore did
not constitute evidence upon which a new trial could be
based’’), cert. denied, 384 U.S. 1012 (1966); see also United
States v. Welch, 160 F. Supp. 2d 830, 833 (N.D. Ohio 2001).5
4 Even though the court in Kladouris cited our Brown decision
to support its view that a newly discovered ineffective assistance
claim can support a new trial motion under FED. R. CRIM. P. 33(b)(1),
we have since clarified that the Brown language specifically relied
on was dictum. Torres, 115 F.3d at 1036 (explaining relevant
Brown language was dictum because Brown had neither moved for
new trial nor raised ineffective assistance of counsel claim on
appeal).
5 Some courts follow the same approach to Rule 59 and Rule
60(b) of the Federal Rules of Civil Procedure. See, e.g., Rivera v.
M/T Fossarina, 840 F.2d 152, 155 (1st Cir. 1988) (evidence of
results of post-trial investigation was not newly discovered evidence
because results did not exist at time of trial); Davis v. Jellico Cmty.
Hosp., Inc., 912 F.2d 129, 135 (6th Cir. 1990) (plaintiff’s death after
final judgment was not ‘‘newly discovered evidence’’ under either
Rule 59 or 60(b)); see also Johnson v. Offshore Express, Inc., 845
7
Hall’s counsel’s failure to move for a new trial within the
seven-day time period required by Rule 33(b)(2), ‘‘evidence’’
Hall claims he ‘‘discovered’’ only after trial, did not occur, of
course, until after trial.
Nothing in the cases cited by Hall or relied on by the
district court permitting evidence of ineffective assistance of
counsel to support a new trial motion based on newly discov-
ered evidence suggests a different result because they re-
viewed defense counsel’s performance either during trial or
pre-trial. Torres, 115 F.3d at 1034 (language barrier between
counsel and defendant at trial is basis for ineffective assis-
tance of counsel challenge); United States v. Kelly, 790 F.2d
130, 136 (D.C. Cir. 1986) (alleged government agent’s conver-
sations with defendant and defense counsel regarding trial
strategy and agent’s theft of relevant and important docu-
ments constitutes sixth amendment violation). We thus con-
clude that the district court committed legal error in granting
Hall’s motion for a new trial based on conduct that did not
occur until after trial.
For the foregoing reasons, we reverse the district court’s
judgment.
So ordered.
F.2d 1347, 1358 (5th Cir. 1988) (evidence of involvement in conspira-
cy to overthrow foreign government six months after trial not
‘‘newly discovered evidence’’); Boyd v. Bulala, 672 F. Supp. 915,
922 (W.D. Va. 1987) (death of injured party after judgment not
‘‘newly discovered evidence’’), aff’d in part, rev’d in part on unrelat-
ed grounds, certifying questions to Supreme Court of Virginia, 877
F.2d 1191 (4th Cir. 1989); Strobl v. New York Mercantile Exch., 590
F. Supp. 875, 878 (S.D.N.Y. 1984) (findings in related litigation
made after final judgment not ‘‘newly discovered evidence’’), aff’d,
768 F.2d 22 (2d Cir.), cert. denied, 474 U.S. 1006 (1985); 12 MOORE’S
FEDERAL PRACTICE § 60.42[3] (3d ed. 1997).