[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
March 29, 2004
No. 02-16337 THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 98-06118-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
MAHENDRA PRATAP GUPTA,
ALLEGHENY MANAGEMENT COMPANY, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 29, 2004)
Before HULL, MARCUS and STAHL*, Circuit Judges.
*
Honorable Norman H. Stahl, United States Circuit Judge for the First Circuit, sitting by
designation.
MARCUS, Circuit Judge:
In this complex Medicare fraud case, the United States appeals from the
district court’s order granting a judgment of acquittal or, alternatively, a new trial,
after a jury had convicted Appellees on three counts of mail fraud and fraud
against the government. The government argues that the district court lacked
subject matter jurisdiction to issue the order because the motions were filed
outside the time limits for post-verdict motions prescribed in Rules 29 and 33 of
the Federal Rules of Criminal Procedure, and that the district court’s order was
wrong on the merits as well. Because the district court plainly lacked jurisdiction
to entertain these post-verdict motions, we VACATE its order and REMAND for
further proceedings consistent with this opinion.
I
The relevant facts and procedural history of this case are straightforward.
This case began in September of 1997 when a federal grand jury in the District of
Montana returned a sixteen-count indictment against defendants Mahendra Pratap
Gupta, three other natural persons, Allegheny Management Company
(“Allegheny”), and ten other companies involved in providing home healthcare
services and supplies. In essence, the indictment charged the named defendants
2
with having created a scheme to defraud Medicare based upon violations of the
“related party” regulation1 by use of false claims, straw owners, and other
1
The “related party” regulation governs disbursement of Medicare funds from the federal
government when an eligible health care provider has purchased goods and services from an
entity with which it has a relationship of ownership or control. So-called “related-party
contracts” are treated as if the health provider were dealing with itself. Medicare therefore
reimburses the home health care agency at the cost to the related provider. To enforce this
principle, home health agencies are required to divulge contracts with related entities in two
separate parts of their annual cost reports to Medicare, the Form 339 Questionnaire and Section
A-6.
The pertinent Medicare regulation states:
§ 413.17 Cost to related organizations.
(a) Principle. . . . [C]osts applicable to services, facilities, and supplies
furnished to the provider by organizations related to the provider by
common ownership or control are includable in the allowable cost of the
provider at the cost to the related organization. . . .
(b) Definitions --
(1) Related to the provider. Related to the provider means that the
provider to a significant extent is associated or affiliated with or has
control of or is controlled by the organization furnishing the services,
facilities, or supplies.
(2) Common ownership. Common ownership exists if an individual or
individuals possess significant ownership or equity in the provider and the
institution or organization serving the provider.
(3) Control. Control exists if an individual or an organization has the
power, directly or indirectly, significantly to influence or direct the actions
or policies of an organization or institution.
42 C.F.R. § 413.17 (emphasis added).
3
deceptive actions to conceal the close relationship between the various persons.2
On July 20, 1998, the case was transferred to the Southern District of
Florida pursuant to Rule 21 of the Federal Rules of Criminal Procedure. The
district court then ordered the trial of four defendants3 severed from the trial of
Mahendra Pratap Gupta and six companies. After the district court had dismissed
thirteen counts of the indictment, the case proceeded to trial on October 25, 1999,
against the remaining defendants -- Mahendra Pratap Gupta, Edward J. Quinlan,
and Kuldeep K. Hajela, and the remaining six companies, Allegheny, Cardinal,
Marshall, Atlantic, West Coast, and Treasure Coast -- on the three remaining
counts: conspiracy to defraud Medicare, 18 U.S.C. § 286, and two counts of mail
fraud, 18 U.S.C. §§ 1341, 1342.
At the close of the government’s case, the district court granted defendant
Hajela’s motion for a judgment of acquittal and reserved ruling pursuant to Rule
2
The original defendants were Mahendra Pratap Gupta, Edward J. Quinlan, Kuldeep K.
Hajela, Vijay Kumar Gupta, the Allegheny Management Company (“Allegheny”), Cardinal Care,
Inc. (“Cardinal”), Marshall Medical Services, Inc. (“Marshall”), Atlantic Health Care Services,
Inc. (“Atlantic”), West Coast Health Care Services, Inc. (“West Coast”), Treasure Coast Health
Care Services, Inc. (“Treasure Coast”), American Home Health Services, Inc. (“American
Home”), Franklin Health Care Services, Inc. (“Franklin”), and Greenfield Health Care Services,
Inc. (“Greenfield”). The district court dismissed two additional defendant companies,
Independent Home Health Care, Inc. and Capital City Health Care Services, Inc., on motion of
the government.
3
The government subsequently dismissed the charges against these four defendants,
Vijay Kumar Gupta and his three companies, American Home, Franklin, and Greenfield.
4
29(b) of the Federal Rules of Criminal Procedure4 on the motions of the remaining
eight defendants. On November 5, 1999, the jury acquitted defendant Quinlan, but
convicted Mahendra Gupta and the six companies, finding them guilty as charged.
The same day, on November 5, 1999, the district court granted the
defendants’ request for an extension of “at least three weeks” to file post-verdict
motions. The entire exchange went as follows:
MR. SONNETT: Your honor, may I ask for an extension of time to file post
trial motions.
THE COURT: Certainly, how much time do you need.
MR. SONNETT: Given my calendar, I’d like to ask for at least three weeks.
THE COURT: That’s fine.
On November 29, 1999, Allegheny filed its only post-trial motion for
judgment of acquittal, and on December 3, 1999, Gupta and the other five
4
Rule 29, “Motion for Judgment of Acquittal,” provides: (a) “Before Submission to the
Jury[,]” either at the close of the government’s case or at the close of all the evidence, a
defendant may file a motion for judgment of acquittal on any count for which the evidence is
insufficient to sustain a conviction.
Rule 29(b), “Reserving Decision[,]” in turn provides in pertinent part:
The Court may reserve decision on the motion, proceed with the trial . . . ,
submit the case to the jury, and decide the motion [either before or after it returns
a guilty verdict] . . . . If the court reserves decision, it must decide the motion on
the basis of the evidence at the time the ruling was reserved.
Fed. R. Crim. P. 29.
5
defendant companies filed motions for a judgment of acquittal, or alternatively, for
a new trial. On January 27, 2000, the district court denied all of the pending post-
trial motions on the merits.
Sentencing was continued several times after that. A year later, on January
25, 2001, Gupta and five of the defendant companies5 moved the court to
reconsider its earlier denial of judgments of acquittal or, alternatively for a new
trial, based on information not previously available. On October 1, 2001, Gupta
and five of the six companies filed additional materials with respect to what they
termed their renewed motions for judgment of acquittal or a new trial.
Finally, on October 16, 2002 -- almost three years after the original motions
for a judgment of acquittal and a new trial had been filed, and some thirty-three
months after denying these motions -- the district court granted the Rule 29 and 33
motions, even for defendant Allegheny, which had never filed further motions
after the district court’s January 27, 2000 denial of its November 29, 1999 post-
trial motion for judgment of acquittal.
The government appealed, arguing first that the district court had no
jurisdiction to entertain the motions for a judgment of acquittal or for a new trial
because of the time limits contained in Rules 29 and 33, and that, in any event, the
5
Notably, Allegheny did not join in the motion.
6
court erroneously granted the motions on the merits. We do not reach the merits
since we agree that the court was without jurisdiction to grant the motion to
reconsider its denial of the earlier motions for judgment of acquittal or new trial.
II
The government makes a threefold argument that the district court lacked
jurisdiction to entertain the Rule 29 and 33 motions it eventually granted. First, it
claims, the time extension granted to the defendants was for an uncertain period,
thus violating the requirement that extensions be granted only for a time certain.
Second, it says that even if the court properly granted the defendants extra time to
prepare the motions, they did not file their motions for judgment of acquittal and
new trial within that extended time period. Finally, the government urges that
even if the original motions were timely filed, considered, and denied, Gupta’s
motion to reconsider and renewed motion were made far outside any possible
allowable time period. Because we are persuaded by the last of these arguments,
we conclude that the district court indeed lacked jurisdiction to entertain the
renewed motions and, therefore, vacate the order granting the untimely verdicts,
reinstate the jury’s verdicts, and remand for sentencing.
We review de novo the district court’s interpretation and application of
7
statutory provisions that go to whether the court has subject matter jurisdiction.
Chaney v. Tenn. Valley Auth., 264 F.3d 1325, 1326 (11th Cir. 2001) (per curiam).
Factual findings made by the district court with respect to jurisdiction, however,
are reviewed only for clear error. United States v. McPhee, 336 F.3d 1269, 1271
(11th Cir. 2003).
Rule 29(c) of the Federal Rules of Criminal Procedure contains strict time
limits for the filing of post-verdict motions, either for a judgment of acquittal, or
renewing a motion for acquittal on which the district court had reserved ruling
under Rule 29(b). Such motions must be filed within seven days after a guilty
verdict, or within whatever additional time the court may allow, provided the
extension is granted within that same seven-day time frame after the verdict.6
6
Rule 29 reads, in pertinent part:
Rule 29. Motion for a Judgment of Acquittal
....
(c) After Jury Verdict or Discharge.
(1) Time for a Motion. A defendant may move for a
judgment of acquittal, or renew such a motion, within 7
days after a guilty verdict or after the court discharges the
jury, whichever is later, or within any other time the court
sets during the 7-day period.
Fed. R. Crim. P. 29.
8
Further, Rule 33 provides two ways in which a new trial can be granted post-trial.7
In its order, the district court said that the defendants had requested and the
court had granted an extension of time to file post-trial motions, finding that the
“initial motions were timely filed within the period set by the court.” This ruling
by the trial court effectively resolved the question of fact as to how much time the
court had granted to the defendants to file post-trial motions. All parties agree that
this particular ruling is reviewed only for clear error. See McPhee, 336 F.3d at
1271. The record supports this finding. On November 5, 1999, the defendants
7
Rule 33 reads, in pertinent part:
Rule 33. New Trial
....
(b) Time to File.
(1) Newly Discovered Evidence. Any motion for a new trial
grounded on newly discovered evidence must be filed
within 3 years after the verdict or finding of guilty. If an
appeal is pending, the court may not grant a motion for a
new trial until the appellate court remands the case.
(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.
9
requested and the district court granted an extension of three weeks.8 Since Rule
29(c)(1) allowed the defendants seven days to file post-trial motions, the request
for an extension of three weeks can fairly be interpreted as a request for a total of
28 days up to and including December 3, 1999, which the court granted on the day
of the verdict.9 Thus the district court’s finding that the motions filed on
November 29, 1999 and December 3, 1999 were timely is not clearly erroneous.10
III
Even though we conclude that the motions of November 29 and December
3, 1999 were timely filed, these motions were denied on the merits on January 28,
8
While the government correctly observes that the defendants requested an extension of
“at least three weeks,” we interpret the district court’s ruling to have granted a period of three
weeks. Although it is not clear exactly how long “at least three weeks” is, it certainly should not
be interpreted as conferring a period of less than three weeks. We have deemed it useful to split
up the phrase “at least three weeks” into its definite and indefinite parts: “at least” is uncertain,
but “three weeks” is not. Plainly, the district court meant to give the defendants no less than
“three weeks.”
9
The government argues that the exchange between defense counsel and the district court
actually only resulted in the grant of a total of three weeks, including the seven day period. We
are satisfied, however, that the exchange can be fairly interpreted as a grant of a three week
extension beyond the initial seven-day period.
10
The defendants also contend that, since the seven-day period provided by Rule 29 is
less than 11 days under Rule 45(a)(2), the initial due date under the Rule was extended five days
by excluding the two intervening weekends and the Veterans’ Day holiday, and thus that the
three-week extension was granted until December 8. We need not decide this question since the
initial motions were filed on November 29 and December 3, 1999, within 28 days after the
verdict’s return on November 5, 1999.
10
2000. At that time nothing remained to be done, except the sentencing of the
convicted defendants. Yet Gupta and five of the convicted companies (excluding
Allegheny) filed a motion a year later, on January 25, 2001, asking the district
court to reconsider its denial on January 27, 2000 of the Rule 29 motions. Then,
on October 1, 2001, Gupta and the five companies filed a Motion of Submission
and Supplemental Memorandum concerning their renewed motion for a judgment
of acquittal, or in the alternative, for a new trial. After still another year had
passed, on October 16, 2002, the district court entered its orders granting
judgments of acquittal and, alternatively, granting a new trial.
On this appeal, the defendant must show that the motion to reconsider and
renewed motion were timely and proper. We hold that they were not. See Carlisle
v. United States, 517 U.S. 416, 422, 426, 116 S. Ct. 1460, 1464, 1466, 134 L. Ed.
2d 613 (1996) (citing and quoting United States v. Smith, 331 U.S. 469, 473, 67 S.
Ct. 1330, 1332, 91 L. Ed. 1610 (1947)); United States v. Bramlett, 116 F.3d 1403,
1406 (11th Cir. 1997) (citing and quoting United States v. Hall, 854 F.2d 1269,
1271-72 (11th Cir. 1988)); Fed. R. Crim. P. 29(c), 33(b)(2), 45.
The district court’s power to act is sharply constrained by the relevant rules
of criminal procedure. Indeed, time limits for post-verdict motions are older than
the Federal Rules themselves, which were enacted in 1944. See Smith, 331 U.S. at
11
473, 67 S. Ct. at 1332 (“Generally speaking, the power of a court over its
judgments at common law expired with the term of Court . . . There was, however,
a three-day limitation on the right to move for a new trial.” (internal citations
omitted)). The original Rule 2 -- which has been amended only once in 2002, for
purely stylistic reasons -- states that the criminal rules “shall be construed to
secure . . . the elimination of unjustifiable expense and delay.” Fed. R. Crim. P. 2
(1944). To permit the unlimited renewal or reconsideration of fully decided
motions would needlessly tie up judicial resources and seriously delay the final
disposition of cases. Doing so would undermine both the language and purpose of
the Rules. As the Supreme Court explained in Smith:
The trial judge is given power by the Rules to entertain motions for
new trial within five [now seven] days after verdict and may extend
that time for so long as he thinks necessary for proper consideration
of the course of the trial. But extension of that time indefinitely is no
insurance of justice. On the contrary, as time passes, the peculiar
ability which the trial judge has to pass on the fairness of the trial is
dissipated as the incidents and nuances of the trial leave his mind to
give way to immediate business. It is in the interest of justice that a
decision on the propriety of a trial be reached as soon after it has
ended as is possible, and that decision be not deferred until the trial’s
story has taken on the uncertainty and dimness of things long past.
331 U.S. at 475-76, 67 S. Ct. at 1334.
This case is a perfect example of the kinds of problems that may result when
the time limits prescribed by the Rules are ignored. Had sentencing gone forward
12
after denial of the initial motions on January 27, 2000, an appeal on the merits
could have been heard and decided two years ago. Instead, sentencing and any
subsequent appeals must now proceed some four years later.
In Carlisle, the Supreme Court definitively ruled that a motion for a
judgment of acquittal filed one day after the seven-day limit was untimely and,
therefore, vacated the order granting an acquittal to Carlisle. 517 U.S. at 433, 116
S. Ct. at 1470. The Court held that a literal reading of the texts of Rule 29(c) and
Rule 45(b) of the Federal Rules of Criminal Procedure must be adhered to.11 The
Court observed that “[w]hether the action of the District Court here is described as
the granting of an untimely motion, or the sua sponte entry of a judgment of
acquittal, it contradicted the plain language of Rule 29(c), and effectively annulled
the 7-day filing limit” and was therefore improper. Id. at 426, 116 S. Ct. at 1466.
This holding put the treatment of Rule 29's time limits in line with the Court’s
Rule 33 decision in Smith, 331 U.S. at 469, 67 S. Ct. at 1330. The Court cited
Smith, observing:
“It would be a strange rule . . . which deprived a judge of power to do
what was asked when request was made by the person most
concerned, and yet allowed him to act without petition,” and such an
arrangement “would almost certainly subject trial judges to private
11
Rule 45(b)(2) expressly provides that the district court may not extend the time to take
any action under Rules 29, 33, 34, and 35, except as stated in those rules.
13
appeals or application by counsel or friends of one convicted.” The
same is true here.
Carlisle, 517 U.S. at 422, 116 S. Ct. at 1464 (quoting Smith, 331 U.S. at 474, 475,
67 S. Ct. at 1333). This language undercuts the defendants’ contention that sua
sponte consideration of judgments of acquittal should somehow be treated
differently from those initiated by one of the parties to the suit, especially in light
of the restrictions embodied in Fed. R. Crim. P. 45.
Simply put,
These Rules are plain and unambiguous. If, as in this
case, a guilty verdict is returned, a motion for judgment
of acquittal must be filed, either within seven days of the
jury’s discharge, or within an extended period fixed by
the court during that 7-day period. There is simply no
room in the text of Rules 29 and 45(b) for the granting of
an untimely postverdict motion for judgment of acquittal
....
Id. at 421, 116 S. Ct. at 1464.
Following Carlisle, we faced a situation quite similar to the facts of this
case. In United States v. Bramlett, 116 F.3d 1403, 1405 (11th Cir. 1997), the
defendant moved for a new trial three days after being convicted of arson. The
district court denied this motion. Id. Two months after the denial, Bramlett filed
for “reconsideration” of this ruling. Id. The district court granted the motion,
characterizing it as a “renewed” motion. Id. On appeal, we held that a renewed
14
motion for a new trial, when made outside of the post-verdict seven-day period
and outside of any extension granted during that period, was barred. Id. at 1406.
We observed that “[t]he question thus becomes whether the district court had the
power to construe Appellee Bramlett’s March 25, 1996 filing as a ‘renewed’
motion for a new trial that somehow related back to his timely filing. The Federal
Rules of Criminal Procedure and case law interpreting those rules establish that
district courts do not possess any such power.” Id. at 1405-06 (footnote omitted).
We went on to say:
Inasmuch as the district court in the present case construed Bramlett’s
memorandum as a renewal of the first, timely motion for a new trial,
it impermissibly granted an extension outside the seven-day period
prescribed by Rule 33. A district court may not disregard the
jurisdictional limitations imposed by the Federal Rules of Criminal
Procedure in this manner.
Id. at 1406.
The clear holding of Bramlett, then, is that post-verdict renewed motions
filed outside the seven-day period and any extension granted during that period are
untimely. Because the motion to reconsider in the case before us was filed one
year after the denial of the original timely motions, the district court lacked
15
jurisdiction to consider it.12 In United States v. Hall, 854 F.2d 1269 (11th Cir.
1988), we had earlier held that:
Rule 33 clearly states that a court may only grant an extension of the
seven-day period during those first seven days. Rule 45 of the
Federal Rules of Criminal Procedure, which describes a trial court’s
authority to enlarge the time periods set forth in Rule 33, stresses that
“the court may not extend the time for taking any action under [Rule
33] except to the extent and under the conditions stated in [the rule].”
Following these clear instructions, our court has ruled that, after the
expiration of the seven-day period prescribed in Rule 33, a district
court no longer has jurisdiction to “enter an order purporting to
enlarge the time within which” a defendant can file such a motion.
The trial court in this case could not ignore these time limitations.
Id. at 1271-72 (internal citations omitted). Hall did not involve a renewed motion
or a motion to reconsider, but rather an attempt to file a Rule 33 motion after the
seven-day period on the ground of newly discovered evidence. It nonetheless also
made clear our concern with attempts to circumvent the time limits clearly
prescribed in the Rule.13
12
Appellees and the district court attempt to distinguish Bramlett as involving a renewed
motion that raised “new issues,” although nothing in that opinion suggests that the renewed
motion did raise new issues. Even if it did, the court’s holding does not in any way hinge on that
fact -- all that mattered was whether the motion was a renewed one. See also United States v.
Hill, 177 F.3d 1251, 1252-53 (11th Cir. 1999) (per curiam); United States v. Renick, 273 F.3d
1009, 1019 (11th Cir. 2001).
13
The defense cites two post-Carlisle district court cases in the Eleventh Circuit that
supposedly allowed reconsideration of timely motions. These cases are neither controlling, nor
on point. The first, Groover v. Michelin N. Amer., Inc., 90 F. Supp. 2d 1236 (M.D. Ala. 2000),
was not a criminal case and did not involve Rule 29 or 33, but rather concerned the adjudication
of a motion for summary judgment. The other case, United States v. Ferguson, 142 F. Supp. 2d
16
All the parties and the district court in this case agree that the issuance of
the judgments of acquittal was not based upon newly discovered evidence, and did
not rely on the three-year period permitted by Rule 33(b)(1). The fact that the trial
court relied upon our decision in United States v. Whiteside, 285 F.3d 1345 (11th
Cir. 2002), to explain the merits decision to grant judgments of acquittal does not
relieve the court of the obligation to adhere to the Rules’ unambiguous time limits.
Questions concerning the application of Whiteside to the facts of this case can be
addressed on merits appeal following the imposition of sentences.
In sum, our case law makes it abundantly clear that motions to reconsider or
renew Rule 29 or 33 motions are not permissible if they are filed outside the
seven-day post-verdict period or outside an extension granted during that seven-
day period. Here the defendants’ renewed motions were made many months
outside the allotted seven-day period and the extension granted by the district
court. Any judgment made so long after the end of the trial, and long after the
time prescribed by the Rules, was likely subject to the “uncertainty and dimness of
things long past” that Smith warned against. The time periods prescribed by the
Rules and unambiguous case precedent forbid us from allowing the entry of
1350 (S.D. Fla. 2000), addressed a Sixth Amendment-based motion to dismiss and timeliness
was not an issue.
17
judgment of acquittal or the order for a new trial to stand. Accordingly, we vacate
its judgment, reinstate the jury’s verdicts, and remand for sentencing.
IV
Finally, the government urges that, upon remand, this case should be
reassigned to a different judge from the one who presided over the trial and
granted the Rule 29 and 33 motions. In deciding whether it is necessary to
reassign the case to another judge on remand, we consider “(1) whether the
original judge would have difficulty putting his previous views and findings aside;
(2) whether reassignment is appropriate to preserve the appearance of justice; (3)
whether reassignment would entail waste and duplication out of proportion to
gains realized from reassignment.” United States v. Torkington, 874 F.2d 1441,
1447 (11th Cir. 1989) (citation omitted). We see no indication that the
experienced district judge who tried this case would have any problem following
the mandate of this Court, or that the appearance of justice would be disserved by
allowing him to continue to preside over this case. Surely, a judge grossly biased
against the government would not have denied the initial Rule 29 and 33 motions.
The government says, nevertheless, that if the case is remanded, the result --
a supposedly too-light sentence -- would be “preordained.” We disagree. First, it
18
seems strange to claim that the trial judge is likely to rule in an ominously
predictable manner when he has already demonstrated his willingness to
reconsider his previous rulings. Second, even if the judge were to impose the
same sentence he suggested he would give in the previous sentencing hearing,
there is no reason to doubt his judgment or impartiality. Consistency in the pursuit
of justice is no vice. Moreover, an appeal of any sentence imposed is a possibility
under 18 U.S.C. § 3742, should the government or the defendants have grounds.
Finally, reassignment to a new judge would require significant and unnecessary
use of judicial resources.
VACATED AND REMANDED.
19