United States v. Owen ( 2009 )


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  • 07-4966-cr
    United States v. Owen
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    August Term 2008
    (Argued: December 10, 2008                               Petition for Rehearing Decided: March 9, 2009)
    Docket No. 07-4966-cr
    UNITED STATES OF AMERICA ,
    Appellee,
    -v.-
    LANCE EDGAR OWEN ,
    Defendant-Appellant,
    PAUL SAMUELS, also known as Pablo, and
    MARK BAROODY ,
    Defendants.
    Before: FEINBERG , CABRANES, and HALL, Circuit Judges.
    The United States petitions this Court for a panel rehearing on the issue of whether defendant
    Lance Edgar Owen’s motion for a new trial, which remains pending in the United States District Court
    for the Southern District of New York (Robert P. Patterson, Judge), was timely under Rule 33(b)(2) of
    the Federal Rules of Criminal Procedure. Without deciding the timeliness of Owen’s motion for a new
    trial, we deny the petition.
    Denied.
    William J. Harrington, Assistant United States Attorney (Lev L.
    Dassin, Acting United States Attorney for the Southern
    District of New York, and Andrew L. Fish, Assistant
    United States Attorney, on the brief), Office of the United
    States Attorney for the Southern District of New York,
    New York, NY, for appellee.
    Michael W. Martin (James A. Cohen, on the brief) Lincoln Square
    Legal Services, Inc., New York, NY, for
    Defendant-Appellant.
    1
    OPINION AND ORDER DENYING PETITION FOR PANEL REHEARING
    JOSÉ A. CABRANES, Circuit Judge:
    In an opinion filed on January 9, 2009, United States v. Owen, 553 F.3d __, No. 07-4966-cr, 
    2009 U.S. App. LEXIS 192
     (2d Cir. Jan. 9, 2009) (“Owen II”), we held that a protective notice of appeal filed
    by defendant Lance Edgar Owen was not “effective,” Fed. R. App. P. 4(b)(3)(B),1 because the same
    claims on appeal had also been raised in a motion for a new trial, filed pursuant to Rule 33 of the
    Federal Rules of Criminal Procedure, that was still pending before the United States District Court for
    the Southern District of New York (Robert P. Patterson, Judge). See Owen II, 553 F.3d at __, 
    2009 U.S. App. LEXIS 192
    , at *10-11. We stated that we would “hold this appeal in abeyance so that the District
    Court may conduct whatever proceedings are necessary to resolve Owen’s Rule 33 motion,” and that
    the appeal would be “effective” within the meaning of Rule 4(b)(3)(B) when the District Court
    concluded its post-judgment proceedings. Id. at *11. We assume a familiarity with the underlying facts
    and procedural history of this case as presented in that decision. See also United States v. Owen, 
    500 F.3d 83
    , 84-87 (2d Cir. 2007) (“Owen I”) (explaining the underlying investigation and prosecution).
    On January 23, 2009, the government filed a petition for panel rehearing of our January 9, 2009
    decision pursuant to Rule 40 of the Federal Rules of Appellate Procedure. The government argues that
    the underlying Rule 33 motion in the District Court was untimely, and that Rule 4(b)(3)(B) only tolls
    the effective date of an appeal for a “timely motion . . . for a new trial under Rule 33,” Fed. R. App. P.
    4(b)(3)(a)(ii).2 Specifically, the government notes that Owen’s handwritten, pro se motion was filed on
    1
    Rule 4(b)(3)(B) of the Federal Rules of Appellate Procedure states:
    A notice of appeal filed after the [district] court announces a decision, sentence, or order— but before it
    disposes of any of the motions referred to in Rule 4(b)(3)(A)— becomes effective upon the later of the
    following: (i) the entry of the order disposing of the last such remaining motion; or (ii) the entry of the
    judgment of conviction.
    2
    Rule 4(b)(3)(A) of the Federal Rules of Appellate Procedure states, in relevant part:
    If a defendant timely makes any of the following motions under the Federal Rules of Criminal Procedure, the
    notice of appeal from a judgment of conviction must be filed within 10 days after the entry of the order
    2
    December 1, 2005—279 days after the February 25, 2005 verdict. However, Rule 33(b)(2) only permits
    motions for new trials on grounds other than newly discovered evidence “within 7 days after the
    verdict.” Fed. R. Crim. P. 33(b)(2). Accordingly, the government requests that we reconsider our
    January 9, 2009 decision and rule on the issue of timeliness. The government further argues that if we
    were to affirm the judgment of conviction, we would permit Owen to raise his arguments on collateral
    review, which the government argues would be “preferable to the current posture, where the District
    Court is faced with resolving claims in an untimely Rule 33 motion.” Gov’t Pet. 3.
    The government concedes in its petition that it has not previously raised the untimeliness
    argument in this appeal. Nonetheless, the underlying point is a critical one. The tolling provision of
    Rule 4(b)(3)(B) of the Federal Rules of Appellate Procedure only applies where the notice of appeal is
    filed “before [a district court] disposes of any of the motions referred to in Rule 4(b)(3)(A),” and Rule
    4(b)(3)(A) only applies to “timely motion[s]” pending before the District Court. We are left with the
    question of whether Owen’s motion for a new trial was “timely.” However, for the reasons stated
    below, we do not resolve this question now.
    Although Rule 33 is an “inflexible claim-processing rule,” it is not “jurisdictional” and is
    therefore subject to the time-modification provisions of Rule 45(b) of the Federal Rules of Criminal
    Procedure.3 Eberhart v. United States, 
    546 U.S. 12
    , 13 (2005) (per curiam) (explaining that if Rule 33 were
    “jurisdictional,” i.e., created by statute, it would not be subject to waiver or forfeiture and could be
    disposing of the last such remaining motion, or within 10 days after the entry of the judgment of conviction,
    whichever period ends later. This provision applies to a timely motion: . . . (ii) for a new trial under Rule 33,
    but if based on newly discovered evidence, only if the motion is made no later than 10 days after the entry of
    the judgment . . . .”
    3
    Rule 45(b) of the Federal Rules of Criminal Procedure states:
    (1) In General. When an act must or may be done within a specified period, the court on its own may extend
    time, or for good cause may do so on a party’s motion made: (A) before the originally prescribed or previously
    extended time expires; or (B) after the time expires if the party failed to act because of excusable neglect.
    (2) Exception. The Court may not extend the time to take any action under Rule 35, except as stated in that
    rule.
    3
    raised for the first time on appeal); see also United States v. Frias, 
    521 F.3d 229
    , 233 (2d Cir. 2008)
    (explaining that “jurisdictional” rules are “enacted by Congress,” whereas “court-promulgated” rules
    are not necessarily “jurisdictional” (internal quotation marks omitted)); United States v. Robinson, 
    430 F.3d 537
    , 541 (2d Cir. 2005) (“The time limitations specified in Rule 33 are read in conjunction with
    Rule 45, which establishes how to compute and extend time.”). As explained in the Advisory
    Committee Notes to Rule 33,
    Read in conjunction with . . . Rule 45(b), the defendant is . . . required to file a timely motion
    for a new trial under Rule 33(b)(2) within the seven-day period specified. . . . [However], under
    Rule 45(b)(1)(B), if for some reason the defendant fails to file the underlying motion for a new
    trial within the specified time, the court may nonetheless consider that untimely underlying
    motion if the court determines that the failure to file it on time was the result of excusable
    neglect.
    Fed. R. Crim. P. 33 advisory committee’s notes (2005 Amendments).
    There is no indication in the record before us that Owen received an extension of time to file
    his pro se Rule 33 motion. Nonetheless, the record shows that the District Court fully intended to
    decide Owen’s pro se motion before Owen’s new counsel filed a protective notice of appeal. The
    District Court expeditiously held a hearing and set a briefing schedule on Owen’s claims “[a]fter [we]
    filed [our] opinion but before the issuance of the mandate,” Owen II, 553 F.3d at __, 
    2009 U.S. App. LEXIS 192
    , at *4-5. As the District Court explained, “I, obviously, have to hear the [Rule 33] motion.
    The motion goes to the conviction and to the ineffective assistance of counsel claim which could result
    in [a] new trial.” Tr. of Proceedings, Sept. 20, 2007, 17:11-13. We conclude that, under these
    circumstances, where the Rule 33 motion is still pending before the District Court, the District Court is
    in the best position to decide, in the exercise of its informed discretion, whether Owen’s pro se motion
    was timely under Rule 33 and Rule 45(b).
    CONCLUSION
    For the foregoing reasons, the government’s January 23, 2009 petition for panel rehearing is
    DENIED.
    4