FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 03-10313
Plaintiff-Appellee,
v. D.C. No.
CR-97-00291-LDG
BRIAN KEITH WOODS,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Argued and Submitted
August 12, 2004—San Francisco, California
Filed March 4, 2005
Before: Harry Pregerson and Alex Kozinski, Circuit Judges,
and John S. Rhoades, Sr.,* District Judge.
Opinion by Judge Pregerson
*Honorable John S. Rhoades, Sr., Senior United States District Judge
for the Southern District of California, sitting by designation.
2645
UNITED STATES v. WOODS 2647
COUNSEL
Karyn Kerry (argued), Assistant United States Attorney,
Thomas S. Dougherty (briefed), Assistant United States
Attorney, Las Vegas, Nevada, for the plaintiff-appellant.
Chad Bowers (argued), Norman J. Reed (briefed), Las Vegas,
Nevada, for defendant-appellant.
OPINION
PREGERSON, Circuit Judge:
Defendant-Appellant Brian Keith Woods appeals the dis-
trict court’s denial of his motion for a new trial based on
newly discovered evidence as untimely under an amended
version of Fed. R. Crim. P. 33. Woods contends that: (1)
retroactively applying the filing requirements of the amended
Rule 33 violates the Ex Post Facto Clause; and (2) the district
court erred by applying amended Rule 33, instead of the ver-
sion of the Rule that was in effect when he was convicted, to
determine whether his motion was untimely.
We have jurisdiction under 28 U.S.C. § 1291, and we
reverse.
2648 UNITED STATES v. WOODS
I. FACTS
On July 9, 1998, following a three-day trial, a jury found
Woods guilty of armed bank robbery in violation of 18 U.S.C.
§ 2113(a), (d), use of a firearm during and in relation to a
crime of violence in violation of 18 U.S.C. § 924(c), conspir-
acy in violation of 18 U.S.C. § 371, and aiding and abetting
in violation of 18 U.S.C. § 2. Woods appealed his conviction,
and we affirmed by a memorandum disposition. See United
States v. Woods, 2000 WL 1359616 (9th Cir. Sept. 20, 2000)
(mem.). Our mandate issued on December 13, 2000.
On September 21, 2001, Woods filed a pro se motion for
a new trial based on newly discovered evidence, under Fed-
eral Rule of Criminal Procedure 33.1 The timeliness of
Woods’s motion for a new trial depended on whether the dis-
trict court applied the filing requirements of the earlier ver-
sion of Rule 33, in effect when the jury returned its guilty
verdict, or of the amended version of Rule 33, in effect when
Woods filed his motion.
Specifically, when the jury returned its guilty verdict in
July 1998, Rule 33 required a defendant to file a motion for
a new trial based on newly discovered evidence within two
years of “final judgment.”2 For purposes of this earlier version
1
The order denying Woods’s motion for a new trial states that the
motion was filed on September 12, 2001. The district court docket, how-
ever, lists the motion as filed on September 21, 2001. The difference is
immaterial to our analysis.
2
The earlier version of Rule 33 read as follows:
The court on motion of a defendant may grant a new trial to that
defendant if required in the interest of justice. If trial was by the
court without a jury the court on motion of a defendant for a new
trial may vacate the judgment if entered, take additional testi-
mony and direct the entry of a new judgment. A motion for a new
trial based on the ground of newly discovered evidence may be
made only before or within two years after final judgment, but if
UNITED STATES v. WOODS 2649
of Rule 33, “final judgment” was the date on which the appel-
late court issued its mandate of affirmance. See United States
v. Cook, 705 F.2d 350, 351 (9th Cir. 1983). Thus, under the
earlier Rule 33, Woods needed to file his motion for a new
trial within two years of our mandate on December 13, 2000
—which he did.
But on December 1, 1998—after the jury returned its guilty
verdict in July 1998, but before Woods filed his motion in
September 2001—an amended Rule 33 became effective. The
amended Rule 33 requires a defendant to file a motion for a
new trial based on newly discovered evidence within three
years “after the verdict or finding of guilty.”3 Thus, Woods’s
motion for a new trial was untimely under the amended Rule
because it was filed more than three years after the jury’s July
1998 verdict.
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 shall be made within 7 days after 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 (1987) (emphasis added).
3
The amended Rule 33 states:
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.
Fed. R. Crim. P. 33 (1998) (emphasis added).
2650 UNITED STATES v. WOODS
Applying the amended Rule 33, the district court denied
Woods’s motion for a new trial as untimely. The district court
also concluded that it lacked jurisdiction to address the merits
of the motion because the motion was untimely. See Cook,
705 F.2d at 351 (noting that “[b]ecause Rule 33’s time limita-
tions are jurisdictional, a district court is powerless to con-
sider an untimely motion for a new trial”). We must now
determine whether the district court’s retroactive application
of amended Rule 33 was erroneous.
II. ANALYSIS
A. Applying the Amended Rule 33 Retroactively Does
Not Violate the Ex Post Facto Clause
[1] Article I of the Constitution prohibits Congress from
passing any “ex post facto Law.” See Art. I, § 9, cl. 3. This
case is one of first impression where we are asked to deter-
mine whether applying the amended Rule 33 retroactively
violates the Ex Post Facto Clause of the Constitution. The
only two Circuits to have considered this issue both held that
retroactive application of the amended Rule 33 is not an ex
post facto violation. See United States v. Correa, 362 F.3d
1306, 1309 (11th Cir. 2004); United States v. Ristovski, 312
F.3d 206, 209-13 (6th Cir. 2002).
We join the Sixth and Eleventh Circuits and hold that retro-
active application of amended Rule 33 is not an ex post facto
violation. The amendment to Rule 33 is a procedural change
that does not affect a substantial right. In short, “[e]ven
though it may work to the disadvantage of a defendant, a pro-
cedural change is not ex post facto.” Dobbert v. Florida, 432
U.S. 282, 293 (1977).
Woods claims that the district court violated the Ex Post
Facto Clause by retrospectively applying the amended ver-
sion of Rule 33 to deny his motion for a new trial. Woods’s
armed bank robbery and related offenses were committed in
UNITED STATES v. WOODS 2651
November 1997. He was convicted of these crimes in July
1998. Although the amended Rule 33 became effective in
December 1998, the district court applied it to “events occur-
ring before its enactment.” Miller v. Florida, 482 U.S. 423,
430 (1987). This application was clearly retrospective.
But retrospective application alone does not violate the Ex
Post Facto Clause. “[N]o ex post facto violation occurs if a
change does not alter ‘substantial personal rights,’ but merely
changes ‘modes of procedure which do not affect matters of
substance.’ ” Id. (quoting Dobbert, 432 U.S. at 293). Woods
argues that the district court affected a substantial personal
right by applying the amended Rule 33 (which required his
motion to be filed “within three years after the verdict”)
instead of the earlier Rule (which required his motion to be
filed “within two years after final judgment”). We disagree.
[2] Generally, if a change in criminal law does “not
increase the punishment nor change the ingredients of the
offense or the ultimate facts necessary to establish guilt,” the
change is procedural and therefore does not affect a substan-
tial right. Weaver v. Graham, 450 U.S. 24, 31 n.12 (1981)
(quoting Hopt v. Utah, 110 U.S. 574, 590 (1884) (internal
quotation marks omitted)); see also Miller, 482 U.S. at 433-
35; Dobbert, 432 U.S. at 293-94; Hopt, 110 U.S. at 589. We
conclude that the amendment to Rule 33 was merely a proce-
dural change. It did not affect Woods’s substantial rights
because the amendment neither increased his punishment nor
altered the elements of the crimes or the ultimate facts neces-
sary to establish his guilt. Thus, we hold that applying the
amended Rule 33 retroactively does not violate the Ex Post
Facto Clause of the United States Constitution.
B. The District Court Failed To Determine Whether
Retroactive Application of the Amended Rule 33
Was “Just and Practicable”
The order from the Supreme Court to Congress that accom-
panied the December 1998 amendments to the Federal Rules
2652 UNITED STATES v. WOODS
of Criminal Procedure stated: “That the foregoing amend-
ments to the Federal Rules of Criminal Procedure shall take
effect on December 1, 1998, and shall govern all proceedings
in criminal cases thereafter commenced and, insofar as just
and practicable, all proceedings in criminal cases then pend-
ing.” Order of the United States Supreme Court Adopting and
Amending the Federal Rules of Criminal Procedure, 523 U.S.
1229 (Apr. 24, 1998) (emphasis added). This language is not
unique—it has been submitted by the Supreme Court with
nearly all amendments to the Federal Rules of Criminal
Procedure—and indicates the intent that the rules be applied
to pending cases only if such application would be “just and
practicable.”
[3] Even though applying the amended Rule 33 retroac-
tively does not violate the Ex Post Facto Clause, a district
court must still determine whether such application to pending
criminal cases is just and practicable. The district court retro-
actively applied the amended Rule 33 to determine that
Woods’s motion for a new trial was untimely without analyz-
ing whether this retroactive application was just and practica-
ble. We must therefore reverse.
Recently, we reviewed a district court’s decision to apply
the earlier Rule 33 and assume jurisdiction over a motion for
a new trial based on newly discovered evidence. See United
States v. Ross, 372 F.3d 1097, 1105-06 & n.6 (9th Cir. 2004).
In Ross, the defendant’s motion for a new trial, like Woods’s,
would have been untimely if amended Rule 33’s filing
requirements were applied.4
4
The jury in Ross reached its verdict in March 1996. Ross filed his
motion for a new trial in July 1999. If the district court had applied the
amended Rule, Ross’s motion would have been barred because it was filed
more than three years after the jury’s verdict. Rather, the court applied the
earlier Rule 33, which allowed Ross two years from final judgment in
September 1998 to file his motion.
UNITED STATES v. WOODS 2653
We did not directly address whether the retroactive applica-
tion of the amended Rule 33 was just and practicable in Ross.
Instead, we held that the district court did not abuse its discre-
tion in deciding it was not just and practicable to apply the
amended Rule 33 retroactively. Ross, 372 F.3d at 1106 n.6
(finding “no authority to suggest that the district court’s inter-
pretation of ‘just and practicable’ was an abuse of discre-
tion”).
[4] Consistent with this approach, we remand to provide the
district court with the opportunity to determine whether the
retroactive application of the amended Rule is just and practi-
cable in this case.
III. CONCLUSION
We hold that the retroactive application of amended Rule
33 does not violate the Ex Post Facto Clause. Nevertheless,
the district court failed to determine whether application of
the amended Rule 33 to Woods’s motion would be “just and
practicable.” Accordingly, we REVERSE the district court’s
order denying Woods’s motion for a new trial and REMAND
for further proceedings.