United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 11, 2002 Decided May 24, 2002
No. 01-3105
United States of America,
Appellant
v.
Jose Marquez,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 99cr00043-05)
Chrisellen R. Kolb, Assistant United States Attorney, ar-
gued the cause for appellant. With her on the briefs were
Roscoe C. Howard, Jr., United States Attorney, John R.
Fisher, Thomas C. Black, and John D. Crabb, Jr., Assistant
United States Attorneys. Thomas J. Tourish, Jr., Assistant
United States Attorney, entered an appearance.
Edward C. Sussman, appointed by the court, argued the
cause and filed the brief for appellee.
Before: Edwards, Rogers, and Tatel, Circuit Judges.
Opinion for the court filed by Circuit Judge Edwards.
Edwards, Circuit Judge: This case requires us to revisit
the scope of the strict time limit for filing a motion for a new
trial under Federal Rule of Criminal Procedure 33, a subject
we addressed just two years ago in United States v. Hall, 214
F.3d 175 (D.C. Cir. 2000). Rule 33 provides that a motion for
a new trial based on grounds other than newly discovered
evidence must be made within seven days "after the verdict
or finding of guilty or within such further time as the court
may fix" during that seven-day period. If the defendant fails
to make a motion for a new trial within seven days and the
court fails to "fix" a new due date for the motion during that
period, the court loses jurisdiction and cannot grant such a
motion at a later time. In Hall, the defendant had filed a
timely motion for an extension of time to file a motion for a
new trial, but the trial court neglected to rule on the motion
within the prescribed period. 214 F.3d at 176. Weeks later,
the court granted the motion nunc pro tunc ("now for then")
to a date within seven days of the verdict. Id. We found
that that court had impermissibly acted outside of the time
limits of Rule 33 and, therefore, lacked the power to act. Id.
at 176-78.
This case presents similar facts and is therefore governed
by our decision in Hall. As in Hall, defendant Jose Marquez,
within seven days of the verdict in his trial, made a motion for
an extension of time to file a motion for a new trial. As in
Hall, the District Court failed to rule on that motion within
the seven-day period. Months later, Mr. Marquez filed a
motion for a new trial, and the trial court eventually granted
this motion more than a year after the verdict. The District
Court justified its deviation from Rule 33 by asserting that
this case falls within an exception for "unique circumstances."
This was error.
The District Court had no power to grant a new trial to Mr.
Marquez. As we explained in Hall, Rule 33 means what it
says. 214 F.3d at 178. Nor does this case fall within the
narrow exception for "unique circumstances" that could ex-
cuse the failure to comply with the rule. Such circumstances
exist only when the cause of the failure to meet the deadline
was "an erroneous ruling or assurance by the District Court
itself." Carlisle v. United States, 517 U.S. 416, 428 (1996).
Here, the defendant relied on no such ruling. On the con-
trary, the trial court expressly cautioned the parties regard-
ing the applicable time limits. Finally, applying the rule
correctly does not compromise Mr. Marquez's rights, as he
retains other avenues for pursuing his substantive claims.
We therefore reverse the judgment of the District Court.
I. Background
Mr. Marquez was charged with three federal drug-dealing
crimes, including conspiracy. He was tried before a jury with
two co-defendants, found guilty of conspiracy to distribute,
and acquitted of the two substantive offenses. Transcript of
Verdict at 4163-64 (May 3, 2000), reprinted at Record Exhibit
("R.") C. The verdict was delivered on May 3, 2000. Imme-
diately afterwards, the trial judge indicated a substantial
likelihood that he would grant a motion for a new trial in Mr.
Marquez's case. Id. at 4171. The trial judge warned the
parties and their lawyers that, "under the rules," they had
seven days to file motions for a new trial. Id. at 4169. The
next day, the judge spoke with Mr. Marquez's trial counsel
and recommended that Mr. Marquez file a motion for a new
trial based on ineffective assistance of counsel. He advised
counsel that she could not represent Mr. Marquez if he chose
to argue ineffective assistance. See United States v. Jose
Marquez, Crim. No. 99-0043, Opinion at 3-4 (Aug. 3, 2001)
("Op."), reprinted at R. O. The trial judge believed that
counsel's cross-examination of two key Government witnesses
may have been constitutionally deficient.
On May 8, 2000, trial counsel filed a Motion for Extension
of Time to File Motion for a New Trial and a request for
appointment of co-counsel. See R. D. Two days later, she
filed an Amended Motion for Extension of Time. See R. E.
The District Court, however, failed to rule on these motions
within seven days of the verdict. Nor did the court sua
sponte fix a further time for filing a motion for a new trial.
The District Court took no action during the crucial seven-
day window.
The government opposed trial counsel's motions on May 22.
The next day, the District Court purported to grant the
motions for extensions of time nunc pro tunc as of May 10,
2000. United States v. Jose Marquez, Crim. No. 99-0043,
Memorandum Opinion and Order at 4 (May 23, 2000), reprint-
ed at R. H. Even then, the trial court did not fix the time for
making a motion for a new trial. Instead, the court appoint-
ed new counsel and set a status conference for June 9. Id. at
5. The court found that barring Mr. Marquez's motions on
jurisdictional grounds "would unduly prejudice him as a re-
sult of a delay entirely of the [District] Court's own making."
Id. at 2. In granting the motions, the court relied in part on
the District Court's opinion in Hall, which had not yet been
reversed by this court. Id. at 3.
On June 2, this court issued its opinion in Hall, holding that
Rule 33 is unambiguous and that its limits are jurisdictional.
214 F.3d at 178-79. We noted that in Carlisle, the Supreme
Court had allowed that a failure to meet a time limit might be
excused in the "unique circumstances" when the reason for
the failure was an "erroneous ruling or assurance by the
District Court itself." Id. at 177 (quoting Carlisle, 517 U.S.
at 428).
On June 9, the trial judge held a status conference to
establish a schedule for filing Mr. Marquez's motion for a new
trial. The judge stated that he thought this court's opinion in
Hall was wrong, but that he also believed the "exception" in
Hall for "unique circumstances" applied to this case. Tran-
script of Status Conference at 6-7 (June 9, 2000), reprinted at
R. L.
Mr. Marquez, through newly appointed counsel, did not file
an actual motion for a new trial until July 14, 2000. R. P.
By opinion, the District Court granted the motion on August
3, 2001, more than a year after the verdict. In its opinion,
the District Court found that Mr. Marquez's failure to file a
timely motion was excused because of "the erroneous advice
he received from this Court." Op. at 7. The court also set
forth two alternative rationales for its exercise of jurisdiction.
First, it suggested that it could construe one or both of the
motions for extensions of time as a motion for a new trial.
Id. at 9 n.2. Second, it suggested that it could find trial
counsel's failure to file a new trial motion within seven days
itself to constitute ineffective assistance of counsel. Id. at 9.
II. Discussion
A. The time limits prescribed by Rule 33
We review the District Court's grant of a new trial de novo,
because it implicates jurisdictional concerns. See Hall, 214
F.3d at 177 (citation omitted). Defense counsel filed only a
motion for an extension of time and failed to request a new
trial within the prescribed time limits. The trial court,
meanwhile, failed to act on the motions for an extension of
time within the seven-day window. According to the clear
language of Rule 33, the District Court forfeited the power to
act when it failed to grant a new trial or fix a new time for
filing a motion for a new trial within seven days of the
verdict. See Fed. R. Crim. P. 33; Hall, 214 F.3d at 177; see
also United States v. Smith, 331 U.S. 469, 473-74 (1947)
(rejecting the argument that a trial court retains the power to
grant a new trial on its own motion after the expiration of the
time provided in Rule 33).
It is clear from the record that the trial judge would have
granted the motions for an extension and fixed a new due
date for a motion for a new trial had he been aware of our
decision in Hall, which was not issued until after the critical
seven days. Now that Hall is on the books, this situation will
not arise again. District Court judges now know, beyond a
shadow of a doubt, that they must act within the seven-day
period to preserve jurisdiction over an anticipated motion for
a new trial. Moreover, Rule 33 does not unduly burden
District Court judges, even with their concededly full dockets
and busy schedules. While the rule's time limits are strict,
the rule affords judges great flexibility to set a new due date
that will give the parties adequate time to make a well-
supported motion for a new trial. Where, as in this case, a
judge is concerned that it will take time to appoint new
counsel and give counsel time to become versed in the details
of the case, he or she may fix a generous time for the filing of
the motion.
B. The "Unique Circumstances" Doctrine
The District Court erroneously found that this case falls
within an exception for "unique circumstances." The unique
circumstances doctrine mentioned in Hall is very narrow and
rarely applied. See Panhorst v. United States, 241 F.3d 367,
370-71 (4th Cir. 2001) (observing that the Supreme Court has
not applied the doctrine since 1964). The doctrine dates back
to the 1960s. See Thompson v. INS, 375 U.S. 384 (1964) (per
curiam) (giving effect to a notice of appeal filed after the
deadline where the petitioner had relied on a statement of the
District Court); Harris Truck Lines, Inc. v. Cherry Meat
Packers, Inc., 371 U.S. 215 (1962) (per curiam) (allowing a
late-filed appeal where the petitioner relied on the trial
judge's finding of excusable neglect). Its ongoing vitality is
far from assured. See Houston v. Lack, 487 U.S. 266, 282
(1988) (Scalia, J., dissenting) (stating in a dissent joined by
three other justices that later cases effectively repudiate the
doctrine).
Assuming the exception's continued validity, as we must,
see State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (stating that
only the Supreme Court may overrule one of its precedents),
this case falls outside its narrow parameters. The exception
is limited to cases in which a party misses a deadline because
he has been misled by a ruling or an order of the court
containing assurances that the deadline has been extended.
See Moore v. S.C. Labor Bd., 100 F.3d 162 (D.C. Cir. 1996)
(per curiam). In this case, the parties were not misled by
the trial court. On the contrary, the trial judge expressly
warned the parties about the limits of Rule 33. Where, as
here, the court does not affirmatively issue a ruling or order
misleading the parties, the unique circumstances doctrine has
no application.
C. The District Court's alternative rationales fail
Mr. Marquez's motions for an extension of time, filed
within the seven-day period, cannot be construed as motions
for a new trial. Both of Mr. Marquez's motions lacked the
essential ingredient for such a motion: they failed to request
a new trial. See Fed. R. Crim. P. 47 (providing that a motion
must set forth the relief sought). One of the motions stated
that ineffective assistance of counsel may be grounds for a
new trial, but did not actually request a new trial. See R. D.
Moreover, the motion admitted that trial counsel had not
been able to draft the motion for a new trial. Id.
Similarly, the District Court's suggestion that it would
regard the failure to file a motion for a new trial as constitut-
ing ineffective assistance of counsel does not cure the problem
here. In other pronouncements, the trial judge took respon-
sibility for the "mistake" of allowing the seven days to lapse
and noted that it was not trial counsel's fault. Even if trial
counsel's failure to file the correct motion were behavior
amounting to ineffective assistance, this would not be grounds
for suspending Rule 33. The only exception to the rule's
limits is an erroneous ruling by the trial court; a mistake by
counsel is insufficient.
D. Mr. Marquez's options
One final observation is in order. Contrary to the protesta-
tions of counsel, a strict application of Rule 33 will not
fundamentally compromise Mr. Marquez's rights. While the
rule is clear in foreclosing a late-filed motion for a new trial,
two avenues remain whereby Mr. Marquez may present his
claim of ineffective assistance of counsel. First, he may
pursue a direct appeal. In the appeal, he has the benefit of a
strong opinion by the District Court explaining why it con-
cluded that trial counsel's representation was ineffective. If
Mr. Marquez succeeds in his appeal, he will gain a new trial.
Convicted defendants who appeal are generally afforded a
full hearing on the issue of ineffective counsel even without
the benefit of a full-blown District Court opinion on the
subject. This is because this court frequently remands such
claims to the District Court for an evidentiary hearing unless
the merits of the claim are clear from the record. See United
States v. Weaver, 281 F.3d 228, 233-34 (D.C. Cir. 2002). We
recently had occasion to explain this practice:
The theory presumably is that trial counsel cannot be
expected to argue his own ineffectiveness in a motion for
a new trial, and so we ought to allow new counsel to
argue it on appeal.... [Rule 33] requires new trial
motions to be filed within 7 days of the verdict, yet our
practice of remanding to the district court for an eviden-
tiary hearing has the effect of greatly extending that
time limit.
Id. at 234. This court has long recognized that defendants
often will miss Rule 33's deadline for making a motion for a
new trial where the claimed defect is ineffective assistance of
counsel, and has sought to address the problem without
violating the rule's strictures. See id.; United States v.
Tindle, 522 F.2d 689, 692-93 (D.C. Cir. 1975) (per curiam)
(recognizing that, often, the ineffective assistance issue "is not
discerned until long after the time limit of Rule 33 ... has
expired" and consequently holding that where a defendant
filed a motion for a new trial alleging ineffective assistance,
the District Court could treat it as a motion under s 2255 and
consider it even during the pendency of a direct appeal).
Thus, in ineffective assistance cases (where it might seem
unrealistic to expect counsel to meet the deadline), the strict
time limits are effectively extended when the defendant pur-
sues a direct appeal with new counsel.
Second, Mr. Marquez may make a motion under 28 U.S.C.
s 2255 raising the issue of ineffective assistance of counsel.
Either way, his claim will be considered, either directly by
this court or by the District Court. See United States v.
Torres, 115 F.3d 1033, 1037 (D.C. Cir. 1997) (holding that
appellant's Rule 33 motion based on ineffective assistance was
untimely and agreeing that appellant could raise the issue
directly on appeal, but declining to remand for the customary
evidentiary hearing because appellant had "renewed the iden-
tical claim in a collateral attack" pending before the district
court). In short, our adherence to the letter of Rule 33 will
not deprive Mr. Marquez of any fundamental legal rights.
III. Conclusion
For the foregoing reasons, we reverse the judgment of the
District Court.