[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 02-15631 & 03-14197 March 19, 2004
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 98-6006-CR-GOLD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO CORREA,
a.k.a. Alex Correa,
a.k.a. Alex Alvarez,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(March 19, 2004)
Before BLACK, BARKETT and MAGILL*, Circuit Judges.
BLACK, Circuit Judge:
*
Honorable Frank J. Magill, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
We are asked to consider whether Federal Rule of Criminal Procedure 33's
time limits on filing, as amended in 1998, apply to Appellant’s motions for new
trial where he was convicted fewer than two months before the amended rule
became effective. In this case, application of the amended rule is both (1) just and
practicable, and (2) nonviolative of the Ex Post Facto Clause. We hold the
amended rule does apply retroactively in this case. The Appellant failed to file his
motions within the time limits set out in amended Rule 33. We therefore hold the
district court did not err when it dismissed them.
I. BACKGROUND
Defendant-Appellant Alejandro Correa was convicted by a jury of
(1) conspiring to import cocaine into the United States, in violation of 21 U.S.C.
§ 963; and (2) conspiring to possess with intent to distribute cocaine, in violation
of 21 U.S.C. § 846. The guilty verdict was entered on October 7, 1998.
Beginning in December of 2001—i.e., more than three years after his guilty
verdict was entered—Correa filed an assortment of motions in which he sought to
obtain a new trial.1 Such motions are governed by Federal Rule of Criminal
1
This case has a convoluted procedural history. Correa has been represented by at least
eight attorneys, all of whom have filed various motions. Additionally, Correa has filed multiple
pro se motions himself. As this procedural history is not relevant to this appeal, we refrain from
cataloguing it in greater detail.
2
Procedure 33, which was amended effective December 1, 1998. Supreme Court
Order of Apr. 24, 1998, 523 U.S. 1229 [hereinafter Order]. Since Correa was
convicted before the amendment became effective, the issue that faced the district
court, and faces us today, is whether the old or the amended version of Rule 33
applied.
A. Old Rule 33 and Amended Rule 33 Compared
With respect to motions for new trial based on grounds other than newly
discovered evidence, there is no difference between the old and the amended rule.
Both require that all such motions be made within seven days after the verdict.
See Fed. R. Crim. P. 33 (1998); Fed. R. Crim. P. 33(b)(2) (2003) (incorporating
the 1998 Amendments).
The old and the amended rule differ, however, with respect to motions
grounded on newly discovered evidence. The old rule requires that such motions
be made “within two years after final judgment.” Fed. R. Crim. P. 33 (1998)
(emphasis added). In contrast, the amended rule relies on the date of the verdict as
the triggering event and extends the relevant timeframe to three years. See Fed. R.
Crim. P. 33(b)(1) (2003) (“Any motion for a new trial grounded on newly
discovered evidence must be filed within 3 years after the verdict or finding of
guilty.”).
3
B. The District Court’s Application of Rule 33
The district court first found that none of Correa’s motions for new trial
were filed within seven days of the guilty verdict. Accordingly, it denied them as
untimely to the extent they were grounded on anything but newly discovered
evidence.
To the extent the motions were grounded on newly discovered evidence, the
district court concluded amended Rule 33 applied and denied the motions as
untimely because they were not filed within three years of the guilty verdict. See
Fed. R. Crim. P. 33(b)(1) (2003).
Correa now appeals, arguing that the district court erred in applying
amended Rule 33. We disagree.
II. STANDARD OF REVIEW
The timeliness of a motion for new trial is a jurisdictional question. United
States v. Bramlett, 116 F.3d 1403, 1405 (11th Cir. 1997). As such, the issue
presented is a question of law, and we review de novo. See Sea-Land Serv., Inc. v.
Sellan, 231 F.3d 848, 851 (11th Cir. 2000).
4
III. DISCUSSION
We affirm the district court’s finding that Correa’s motions for new trial
were untimely to the extent that they were grounded on anything but newly
discovered evidence. Clearly, none of these motions were filed within seven days
after the guilty verdict as required by both the old and the amended versions of
Rule 33. See supra Part I.A.
Assuming that Correa’s motions did, in fact, also contain newly discovered
evidence, the issue becomes whether the district court erred when it applied
amended Rule 33.
Amended Rule 33 may be applied retroactively if doing so is (1) just and
practicable, see Order, supra, and (2) not violative of the Ex Post Facto Clause.
A. Just and Practicable
Amended Rule 33 became effective on December 1, 1998. Order, supra. It
“govern[s] all proceedings in criminal cases thereafter commenced, and, insofar as
just and practicable, all proceedings in criminal cases then pending.” Id.
(emphasis added).
Only two Circuits have addressed in published opinions whether application
of the amended rule to a pending criminal case like Correa’s is just and
practicable. See United States v. Ristovski, 312 F.3d 206, 212 (6th Cir. 2002);
5
United States v. Bowler, 252 F.3d 741, 746 (5th Cir. 2001). In Ristovski, the Sixth
Circuit held that application of the amended rule was just and practicable where
the defendant had 19 months after the amended rule became effective in which he
could have filed a motion for new trial. 312 F.3d at 212. In contrast, the Fifth
Circuit reached the opposite result in Bowler because, under amended Rule 33, the
defendant would have been required to file his motion for new trial more than five
months before the amended rule became effective. 252 F.3d at 746.
The facts of this case are most like those in Ristovski. The Ristovski court
applied the amended rule to a defendant who had 19 months in which he could
have filed a motion for new trial after the amended rule became effective. Correa
had more than 34 months. Similarly, we conclude the application of the amended
rule is just and practicable in this case where Correa had more than 34 months to
file his motion after the amended rule became effective.
B. Ex Post Facto
The only remaining issue is whether retroactive application of amended
Rule 33 violates the Ex Post Facto Clause, which provides that “[n]o . . . ex post
facto Law shall be passed.” U.S. Const. art. I, § 9, cl. 3; see also United States v.
Grimes, 142 F.3d 1342, 1350 (11th Cir. 1998) (“[A]pplication of amended statutes
to crimes committed before the amendment is suspect and must be carefully
6
scrutinized.”). “A law violates the Ex Post Facto Clause only if it ‘retroactively
alters the definition of crimes or increases the punishment for criminal acts.’”
United States v. Saucedo-Patino, 11th Cir., 2004, __ F.3d __ (No. 03-10946, Jan.
27, 2004) (quoting California Dep’t of Corrs. v. Morales, 514 U.S. 499, 504–05,
115 S. Ct. 1597, 1601 (1995)) (citation and internal quotation marks omitted).
The only Circuit that has considered this issue in a published opinion is the
Sixth Circuit, and we agree with it that the Ex Post Facto Clause is not violated
here. See Ristovski, 312 F.3d at 212–213. In this case, changing the rule that
determines whether a motion for new trial is timely does not retroactively alter the
definition of Correa’s crimes. Nor does it increase the punishment for any
underlying criminal act. Accordingly, we hold that applying amended Rule 33
retroactively does not violate the Ex Post Facto Clause.
C. Application of Amended Rule 33
Correa was convicted on October 7, 1998. He did not file the first of the
subject motions for new trial based on newly discovered evidence until December
of 2001. He therefore failed to file his motions within three years as required by
amended Rule 33. See Fed. R. Crim. P. 33(b)(1) (2003). Accordingly, we hold
that the district court did not err when it denied Correa’s motions for new trial as
untimely. Moreover, given that Rule 33's time limits are jurisdictional, see United
7
States v. Renick, 273 F.3d 1009, 1019 (11th Cir. 2001), the district court did not
err when it dismissed the motions without reaching their merits.2
IV. CONCLUSION
Applying amended Rule 33 retroactively in this case is both (1) just and
practicable, and (2) nonviolative of the Ex Post Facto Clause. Correa failed to file
his motions for new trial within either of the specified time frames set out in
amended Rule 33—i.e., within three years after the verdict for newly discovered
evidence, and within seven days after the verdict for all other grounds. The
district court therefore did not err when it dismissed his motions for new trial as
untimely.
AFFIRMED.
2
We reject the remainder of Correa’s arguments without further discussion.
8