United States v. Gaydos ( 1997 )


Menu:
  •                                                                                                                            Opinions of the United
    1997 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    3-14-1997
    United States v. Gaydos
    Precedential or Non-Precedential:
    Docket 95-3468
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997
    Recommended Citation
    "United States v. Gaydos" (1997). 1997 Decisions. Paper 62.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1997/62
    This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
    University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova
    University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
    THE UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 95-3468
    UNITED STATES OF AMERICA,
    Appellee
    v.
    OLGA GAYDOS,
    Appellant
    ON APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE WESTERN DISTRICT OF PENNSYLVANIA
    (D.C. Criminal No. 95-53)
    Submitted under Third Circuit LAR 34.1(a)
    January 22, 1997
    BEFORE:   NYGAARD and LEWIS, Circuit Judges,
    and SCHWARZER, District Judge*
    * The Honorable William W. Schwarzer, Senior District Judge for
    the Northern District of California, sitting by designation.
    (Opinion Filed March 14, 1997)
    Bonnie R. Schlueter
    Shaun E. Sweeney
    Office of the U.S. Attorney
    633 U.S. Courthouse
    Pittsburgh, Pa. 15219
    Counsel for the Appellee
    Karen S. Gerlach
    Office of the Federal Public Defender
    960 Penn Avenue
    415 Convention Tower
    Pittsburgh, Pa. 15222
    Counsel for the Appellant
    OPINION OF THE COURT
    NYGAARD, Circuit Judge:
    Olga Gaydos appeals her conviction for malicious destruction
    of property by means of fire, contending that the evidence at
    trial did not meet the interstate commerce nexus required under
    18 U.S.C. § 844(i).   She also argues that the district court
    failed to make the required findings to support her sentence and
    restitution order; and, that the district court improperly
    refused to reach the merits of her untimely post-trial motions
    for judgment of acquittal and for a new trial.   We conclude that
    the government failed to prove the jurisdictional element of 18
    U.S.C. § 844(i), and will reverse her conviction on that count.
    We will also vacate the restitution order and remand the matter
    for the district court to make the required findings and, if
    indicated, enter a new order of restitution.   In all other
    respects, we will affirm.
    I.
    Olga Gaydos owned a house located on Shadeland Avenue in
    Pittsburgh, Pennsylvania that she rented to William Minor,
    Jeannie McComb and their children.   In December 1992, a fire of
    incendiary origin damaged its garage.   Kenneth Evans testified
    2
    that he saw David Minor (William Minor’s brother) coming out of
    the garage at approximately the same time the garage was afire.
    There was also testimony that Gaydos offered two other tenants
    $15,000 each to burn down the house and that she had suggested
    starting a fire in the garage.   Gaydos filed an insurance claim
    with her homeowner’s insurance carrier for damage to the garage
    and contents allegedly lost in the fire.
    In June 1993, Fidelity Savings Bank began foreclosure
    proceedings on the property.   While the foreclosure proceedings
    were pending, Gaydos met with Jeannie McComb to discuss a lead
    contamination problem the Health Department had found at the
    Shadeland Avenue house.   McComb testified that at this meeting
    Gaydos told her that she (Gaydos) intended to burn down the
    house.   Gaydos and McComb then supposedly struck a deal whereby
    Gaydos would allow McComb, William Minor, and their children, to
    move to another house where they could live rent-free if they
    remained silent about the fire Gaydos was planning for the
    Shadeland Avenue house.
    Soon after, Gaydos discussed the lead problem with William
    Minor.   According to Minor’s testimony, Gaydos told him that she
    did not want to put any money into the house to correct the lead
    problem.   Gaydos also allegedly offered Minor $10,000 to burn
    down the house, which he refused.    Minor, McComb and their
    children, did, however, leave the house and moved into another
    house owned by Gaydos.    Approximately two weeks later, the
    3
    Shadeland Avenue house burned to the ground in a fire determined
    to be of incendiary origin.   Gaydos again submitted a claim to
    her homeowner’s insurance carrier.
    Gaydos was charged in a six count indictment alleging four
    counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 1342
    (Counts 1-4), one count of use of fire to commit a felony in
    violation of 18 U.S.C. §§ 844(h)(1) and (2) (Count 5), and one
    count of malicious destruction of property by means of fire in
    violation of 18 U.S.C. § 844(i) (Count 6).   Her codefendant,
    David Minor, was charged in two of the mail fraud counts (Counts
    1 and 2).   Gaydos was found guilty on all counts and David Minor
    was acquitted of the two charges against him.
    Gaydos was sentenced to 51 months in prison for mail fraud
    and malicious destruction of property by means of fire, and to 60
    months for use of fire to commit a felony.   The district court
    ordered the sentences to run consecutively for a total of 111
    months, to be followed by supervised release for three years.
    The court also ordered restitution in the amount of $190,139.42.
    II.
    Gaydos challenges her conviction for malicious destruction
    of property by means of fire, contending that there was
    insufficient evidence for the jury to conclude that the
    government had satisfied the jurisdictional element of 18 U.S.C.
    § 844(i), which requires the government to prove that the
    property was used in an activity affecting interstate commerce.
    4
    She contends that a vacant and uninhabitable building, with
    neither prospect nor intention of being returned to the stream of
    commerce, cannot satisfy the interstate commerce nexus required
    for a conviction under § 844(i).
    Gaydos also argues that the district court committed two
    sentencing errors.   First, she asserts that a vacant and
    uninhabitable building cannot be characterized as a “dwelling”
    for purposes of Section 2K1.4(a)(1)(B) of the United States
    Sentencing Guidelines.   Second, she contends that the district
    court did not make the findings of fact necessary to support the
    restitution order it imposed.
    Gaydos’ final argument on appeal is her claim that the
    district court erred by finding that it lacked jurisdiction to
    consider her untimely post-trial motions for judgment of
    acquittal and for a new trial.
    III.
    Section 844(i) provides in pertinent part:
    Whoever maliciously damages or destroys . . . by means of fire or
    an explosive, any building, vehicle, or other real property
    or personal property used in interstate or foreign commerce
    or in any activity affecting interstate or foreign commerce
    shall be imprisoned for not more than twenty years . . . .
    In Russell v. United States, 
    471 U.S. 858
    , 
    105 S. Ct. 2455
    (1985), the Supreme Court held that § 844(i) could be
    constitutionally applied to a rented apartment building.    The
    Court first noted that the statute “express[ed] an intent by
    Congress to exercise its full power under the Commerce Clause.”
    
    5 471 U.S. at 859
    , 105 S.Ct. at 2456.    The Court next determined
    that the legislative history of § 844(i) suggested that Congress
    intended the statute to protect “all business property, as well
    as some additional property that might not fit that description,
    but perhaps not every private home.”      
    Id. at 862,
    105 S.Ct. at
    2457.   Noting that the express terms of the statute only applied
    to property that was “used” in an “activity” that affects
    commerce, the Court held that “[t]he rental of real estate is
    unquestionably such an activity.”   
    Id. The Court
    further opined
    that the local rental of an apartment unit is an element of a
    much broader commercial market in rental properties to which
    congressional power to regulate extends.     
    Id. (citations omitted).
      Because Russell was renting his apartment building to
    tenants at the time he attempted to burn it, the Court concluded
    that the property was being used in an activity affecting
    commerce within the meaning of § 844(i) and affirmed his
    conviction.
    Gaydos concedes that Russell clearly stands for the
    proposition that renting real estate is an activity which affects
    interstate commerce within the meaning of § 844(i).      She argues,
    however, that Russell is inapposite.   First, Gaydos asserts that
    the Supreme Court’s recent decision in United States v. Lopez,
    
    115 S. Ct. 1624
    (1995), calls the constitutionality of § 844(i)
    into question.   Second, she contends that even if § 844(i) is
    facially constitutional, the evidence was insufficient to prove
    6
    beyond a reasonable doubt that the house on Shadeland Avenue was
    being used in an activity affecting interstate commerce at the
    time it was destroyed by fire.     We are only persuaded by Gaydos'
    second argument.
    A.
    Gaydos asserts that the district court lacked subject matter
    jurisdiction over her alleged offense because § 844(i) exceeds
    the authority of Congress to regulate commerce under the Commerce
    Clause.     In support of her argument, Gaydos relies on the Supreme
    Court's recent decision in Lopez.      Lopez, she argues, stands for
    the proposition that criminal statutes that regulate activities
    affecting interstate commerce pass constitutional muster only
    where the regulated activity "substantially affects" interstate
    commerce.
    In Lopez, the Supreme Court invalidated the Gun-Free School
    Zones Act of 1990, which made it a federal offense "for any
    individual knowingly to possess a firearm at a place that the
    individual knows, or has reasonable cause to believe, is a school
    zone."     18 U.S.C. § 922(q)(2)(A) (1994); 
    Lopez, 115 S. Ct. at 1626
    .     The Court first observed that § 922(q) "neither regulates
    a commercial activity nor contains a requirement that the
    possession be connected in any way to interstate commerce."       
    Id. at 1626.
       It then identified three broad categories of activity
    that Congress may regulate under its commerce power: (1) the use
    of the channels of interstate commerce; (2) the instrumentalities
    7
    of interstate commerce, or persons or things in interstate
    commerce, even though the threat may come only from intrastate
    commerce; and, (3) those activities that substantially affect
    interstate commerce.   
    Id. at 1629-30.
    Quickly disposing of the first two categories, the Lopez
    Court focused on the third category.     The Court held that the
    statute could not "be sustained under our cases upholding
    regulations of activities that arise out of or are connected with
    a commercial transaction, which viewed in the aggregate,
    substantially affects interstate commerce."     
    Id. at 1631.
        The
    statute failed this test, the Court said, because "by its terms,"
    it had "nothing to do with ``commerce' or any sort of economic
    enterprise," 
    id. at 1630-31,
    nor was it "an essential part of a
    larger regulation of economic activity, in which the regulatory
    scheme could be undercut unless the intrastate activity were
    regulated,"   
    id. at 1631.
       Moreover, the Court noted that §
    922(q) contained "no jurisdictional element which would ensure,
    through case-by-case inquiry, that the [activity] in question
    affects interstate commerce," 
    id., and that
    Congress had made no
    legislative findings that the activity so affected interstate
    commerce,   
    id. at 1631-32.
       Without a more definite connection to
    interstate commerce, the Court concluded, upholding the statute
    would improperly allow Congress to "regulate . . . all activities
    that might lead to violent crime, regardless of how tenuously
    they relate to interstate commerce,"     
    id. at 1632,
    and exceed the
    8
    proper limits of the federal government's power.
    We conclude that Lopez does not render § 844(i)
    unconstitutional.   Unlike the statute at issue in Lopez, § 844(i)
    contains a jurisdictional element which ensures, on a case-by-
    case basis, that the property in question must be "used in
    interstate or foreign commerce or in any activity affecting
    interstate or foreign commerce . . . ."   18 U.S.C. § 844(i).    The
    jurisdictional element in § 844(i) makes the holding in Lopez
    readily distinguishable.   See, e.g., United States v. McMasters,
    
    90 F.3d 1394
    , 1398 (8th Cir. 1996), cert. denied, 
    117 S. Ct. 783
    (1997); United States v. DiSanto, 
    86 F.3d 1238
    , 1245 (1st Cir.
    1996); United States v. Sherlin, 
    67 F.3d 1208
    , 1213-14 (7th Cir.
    1995), cert. denied, 
    116 S. Ct. 795
    (1996); see also United States
    v. Bishop, 
    66 F.3d 569
    , 585 (3d Cir.) (holding that the
    jurisdictional element contained in the federal carjacking
    statute, 18 U.S.C. § 2119, "wholly distinguishes Lopez and
    renders section 2119 constitutional"), cert. denied, 
    116 S. Ct. 681
    (1995).   Moreover, as expressly noted in 
    Russell, 471 U.S. at 861-62
    n.9, 105 S. Ct. at 2457 
    n.9, the legislative history of §
    844(i) reflects Congress's concern that it not exceed its
    constitutional authority under the Commerce Clause, and
    Congress's finding that the statute was necessary to protect
    interstate commerce.
    We believe that Russell's interpretation of § 844(i), and
    its holding, that the statute constitutionally regulates arson of
    9
    business property that satisfies the requisite jurisdictional
    element, is still authoritative precedent.    Accordingly, we join
    the other circuits that have concluded that § 844(i) remains
    constitutionally viable under Lopez.    See, e.g., 
    McMasters, 90 F.3d at 1398-99
    ; United States v. Gomez, 
    87 F.3d 1093
    , 1094 (9th
    Cir. 1996); 
    DiSanto, 86 F.3d at 1246
    ; United States v. Denalli,
    
    73 F.3d 328
    , 329 (11th Cir. 1996), amended in part, 
    90 F.3d 444
    (11th Cir. 1996); 
    Sherlin, 67 F.3d at 1213-14
    ; United States v.
    Martin, 
    63 F.3d 1422
    , 1427 (7th Cir. 1995).    Because § 844(i)
    remains constitutionally valid under Lopez, we conclude that the
    district court had subject matter jurisdiction over Gaydos'
    alleged offense.
    B.
    Gaydos' best argument is that the evidence was insufficient
    to satisfy the interstate commerce nexus necessary to support her
    conviction under § 844(i) because the government could not prove
    beyond a reasonable doubt that the house on Shadeland Avenue was
    used, or intended to be used, in an activity affecting interstate
    commerce at the time of the fire.    Gaydos did not preserve this
    issue for appeal by filing a timely motion for a judgment of
    acquittal, so we review the sufficiency of the evidence under a
    plain error standard.   United States v. Zolicoffer, 
    869 F.2d 771
    ,
    774 (3d Cir. 1989); United States v. Wright-Barker, 
    784 F.2d 161
    ,
    170-71 (3d Cir. 1986); Fed. R. Crim. P. 52(b) ("Plain errors or
    defects affecting substantial rights may be noticed although they
    10
    were not brought to the attention of the court.").
    In Zolicoffer, we held that "the failure to prove one of the
    essential elements of a crime is the type of fundamental error
    which may be noticed by an appellate court notwithstanding the
    defendant's failure to raise it in the district 
    court." 869 F.2d at 774
    (citing Strickland v. United States, 
    339 F.2d 866
    , 868
    (10th Cir. 1965)).   We believe that affirming a conviction where
    the government has failed to prove each essential element of the
    crime beyond a reasonable doubt "affect[s] substantial rights,"
    and seriously impugns "the fairness, integrity and public
    reputation of judicial proceedings."     See United States v. Olano,
    
    507 U.S. 725
    , 732, 
    113 S. Ct. 1770
    , 1776 (1993).    Therefore, we
    will review the substance of Gaydos' claim.
    Russell established that renting real estate is an activity
    that affects interstate commerce for purposes of § 
    844(i). 471 U.S. at 862
    , 105 S. Ct. at 2457.     Courts interpreting Russell
    have held “that rental property is per se property used in an
    activity affecting interstate commerce.”    United States v.
    Medeiros, 
    897 F.2d 13
    , 16 (1st Cir. 1990) (citations omitted);
    accord 
    Martin, 63 F.3d at 1427
    ; United States v. Parsons, 
    993 F.2d 38
    , 40 (4th Cir. 1993); United States v. Patterson, 
    792 F.2d 531
    , 534 (5th Cir. 1986).   Gaydos' argument, however, is
    different. She argues that the house on Shadeland could not have
    been considered rental property because at the time it burned it
    was vacant, uninhabitable, and she had no intent to rent it
    11
    again.   As such, Gaydos argues that the house was not being used
    in an activity affecting interstate commerce at the time of the
    fire, and therefore the interstate nexus requirement of § 844(i)
    could not be satisfied.   We agree.
    The government argues that a temporary cessation of activity
    at a business property does not place that property beyond the
    scope of § 844(i).   Again, we agree.   This argument has been
    accepted by every Court of Appeals that has addressed the issue.1
    Moreover, courts in both the Fifth and the Ninth Circuits have
    held that the destruction of uncompleted commercial buildings by
    means of fire falls within the coverage of § 844(i).    See
    
    Patterson, 792 F.2d at 535-36
    (partially completed condominium
    complex found to affect interstate commerce for purposes of §
    844(i) where construction involved out-of-state partners and
    project was financed by out-of-state lender); United States v.
    Andrini, 
    685 F.2d 1094
    , 1096 (9th Cir. 1982) (“construction of a
    commercial office building using out-of-state materials is a
    1
    See 
    Martin, 63 F.3d at 1427
    (“property routinely used in
    interstate-commerce activity does not lose its interstate use
    simply because of a temporary cessation of that activity”);
    United States v. Ryan, 
    41 F.3d 361
    , 364 (8th Cir. 1994) (en banc)
    (section 844(i) reaches arson for property that satisfies the
    interstate commerce nexus “even when the property is temporarily
    closed or vacant”), cert. denied, 
    115 S. Ct. 1793
    (1995); United
    States v. Turner, 
    995 F.2d 1357
    , 1362 (6th Cir. 1993) (“property
    routinely used in interstate commerce activity does not lose its
    interstate characteristics because of a temporary cessation of
    that activity”); 
    Parsons, 993 F.2d at 41
    (“vacancy alone does not
    constitute a removal [of a house] from the rental market”);
    
    Medeiros, 897 F.2d at 16
    (a “tenant’s departure . . . did not
    necessarily sever the property’s ties to interstate commerce for
    the purposes of § 844(i)”).
    12
    commercial activity affecting interstate commerce for the purpose
    of § 844(i)”).   Collectively, this caselaw suggests that once the
    business nature of the property at issue is established, courts
    will presume, absent indicia of an intention to permanently
    remove the property from the stream of commerce, that the
    requisite nexus between the property and interstate commerce is
    satisfied, notwithstanding temporary changes or modifications in
    the use of the property.
    We note that in each of these cases, however, there was a
    clear intention that the property at issue either remain in, or
    return to, the stream of commerce.    Indeed, despite the temporary
    removal of the rental or business properties from the commercial
    market, the trial records in these cases demonstrate that the
    particular properties were treated by their owners as if they had
    never left the stream of commerce.2   Moreover, in the two cases
    2
    See, e.g., 
    Martin, 63 F.3d at 1428
    (owner of property
    testified that vacancy was only temporary and that he intended to
    rent the property in the future); 
    Ryan, 41 F.3d at 365
    (evidence
    indicated that building housing failed health center was about to
    be placed on the commercial market for sale); 
    Turner, 995 F.2d at 1361-62
    (evidence and testimony proved that owner had intended to
    re-let vacant building as soon as repairs and renovations were
    completed); 
    Medeiros, 897 F.2d at 17
    (break in rental activity of
    fictional building was connected to the planned arson and
    undercover government agent never indicated to defendant that the
    property was to be removed from the rental market). See also
    United States v. Mayberry, 
    896 F.2d 1117
    , 1119 (8th Cir. 1990)
    (record reflected that temporarily closed sawmill would have been
    operational had logs been available to cut); United States v.
    Doby, 
    872 F.2d 779
    , 780 (7th Cir. 1989) (per curiam) (owner of
    vacant property never took it off the rental market and intended
    to rent upstairs unit after the house was repaired); United
    States v. Hermes, 
    847 F.2d 493
    , 496 (8th Cir. 1988) (per curiam)
    (owner of the building advertised the space for lease); United
    States v. Shockley, 
    741 F.2d 1306
    , 1307 (11th Cir. 1984) (per
    13
    involving partially completed commercial buildings, the courts
    relied on significant connections to out-of-state factors to
    satisfy the interstate commerce nexus required under § 844(i);
    factors which are not present in this case.3
    Here, we do not believe that the trial record could support
    the conclusion that the house on Shadeland Avenue either remained
    in, or was intended to return to, the stream of commerce.    In
    reaching this conclusion, we are persuaded by a number of
    factors.   First, the record clearly demonstrates that all tenants
    had vacated the house.   Indeed, the property was unfit for human
    habitation.   It was contaminated by lead, and Gaydos had removed
    permanent fixtures such as ceiling fans and kitchen cabinets.
    Second, there is no evidence that Gaydos had any intent to
    improve the living conditions at the house.    She undertook no
    significant abatement measures to correct the lead problem and
    expressly stated that she was not going to devote any money to
    fixing the house.   Finally, there was no evidence to refute
    Gaydos' contention that the house had been permanently removed
    from the rental market and had no prospect of generating any
    curiam) (owner of closed restaurant did not remove equipment from
    the building and told persons that the restaurant would re-open
    after remodeling and repairs were completed).
    3
    See 
    Patterson, 792 F.2d at 536
    (involvement of out-of-
    state partners and lender sufficient to support link between
    construction of building and interstate commerce); 
    Andrini, 685 F.2d at 1096
    (use of out-of-state materials in construction of
    building is a commercial activity affecting interstate commerce
    for the purpose of § 844(i)).
    14
    future rental revenue.
    We conclude that given the confluence of factors in this
    case, the house on Shadeland Avenue ceased to be a rental
    property before it was destroyed by fire.   Consequently, we
    conclude that the evidence here was insufficient to establish
    that the house was involved in an activity affecting interstate
    commerce at the time of the fire.    The status of the house as a
    rental property was "the interstate hook on which the government
    hung its argument."   
    Martin, 63 F.3d at 1427
    .    By failing to
    prove that the house was a rental property, the government has
    not satisfied the interstate commerce element of the statute.
    Hence, the requisite nexus between the property and interstate
    commerce necessary to support a conviction under § 844(i) has not
    been satisfied and Gaydos' conviction for malicious destruction
    of property by means of fire will be reversed.
    We note that our decision here may be perceived to be in
    tension with the decision reached by the court in Parsons, which
    affirmed a jury's finding that a vacant house used as rental
    property for two to three years before the fire and that, at the
    time of the arson, was insured as rental property, qualified as
    "rental property" for purposes of § 844(i).      
    See 993 F.2d at 41
    .
    Significantly, the court reasoned that, once the jury concluded
    that Parsons had commissioned the arson, "it was certainly
    rational to also conclude that Parsons never intended to move
    into the house or to remove it from the rental market . . . . the
    15
    jury concluded that she planned to have the house burned and that
    [Parson's notice of intent to vacate the property] was merely a
    cover."    
    Id. The facts
    here, unlike those in Parsons, demonstrate that
    the property at issue was both vacant and uninhabitable at the
    time of the fire.   Moreover, Gaydos expressed a clear intent not
    to take necessary measures to make the house habitable for future
    tenants.   We conclude that a reasonable juror could not have done
    more than speculate that the house on Shadeland Avenue had a real
    prospect of generating any future rental revenue.
    In sum, we hold that the government could not prove beyond a
    reasonable doubt that the house on Shadeland Avenue was used in
    an activity affecting interstate commerce.   Consequently, we will
    reverse Gaydos' conviction for malicious destruction of property
    by means of fire in violation of 18 U.S.C. § 844(i).4
    IV.
    Gaydos also challenges the restitution order entered by the
    4
    At sentencing, Gaydos' convictions for mail fraud (Counts
    1-4) and for malicious destruction of property by means of fire
    (Count 6) were grouped together and assigned a base offense level
    of 24 pursuant to U.S.S.G. § 2K1.4(a)(1)(B) (destruction of a
    "dwelling" by fire). Gaydos argues that because the house was
    vacant, uninhabitable, and without prospect of future rental, it
    was not a "dwelling" within the meaning of § 2K1.4(a)(1)(B).
    Instead, Gaydos asserts that her base offense level for these
    Counts should have been 20 pursuant to U.S.S.G. § 2K1.4(a)(2)(B)
    (destruction of a structure other than a dwelling). We need not
    reach the merits of Gaydos' contention because our reversal of
    her conviction on Count 6 requires the district court to readjust
    its application of the grouping rules and to recalculate Gaydos'
    sentence.
    16
    district court.    More specifically, Gaydos alleges that the
    district court failed to make the required findings of fact that
    she had the ability to pay before it entered a restitution order
    against her.   We agree.
    In ordering Gaydos to pay $190,139.42 in restitution, the
    district court relied on a listing of Gaydos' assets contained in
    the presentence report.     At the sentencing hearing, however, both
    Gaydos and her counsel raised doubts concerning her ability to
    pay restitution.    The district court never made specific factual
    findings with respect to these contentions.     Rather, the court
    settled the issue by agreeing to a proposal by counsel for the
    government that, if necessary, the amount of restitution ordered
    could be remitted at a later date.
    We have held that specific findings of fact regarding a
    defendant's ability to pay are required before a restitution
    order may be imposed.      See, e.g., United States v. Maurello, 
    76 F.3d 1304
    , 1316-18 (3d Cir. 1996); United States v. Copple, 
    74 F.3d 479
    , 482-83 (3d Cir. 1996); United States v. Carrara, 
    49 F.3d 105
    , 108-09 (3d Cir. 1995); United States v. Turcks, 
    41 F.3d 893
    , 901-02 (3d Cir. 1994), cert. denied, 
    115 S. Ct. 1716
    (1995).
    Deferring such findings until some time after a restitution
    order has already been entered, while perhaps both practical and
    intuitively correct, does not satisfy this requirement.
    Accordingly, we will vacate the restitution order entered against
    Gaydos and remand the matter to the district court for it to make
    17
    specific factual findings on Gaydos' ability to pay restitution.
    V.
    Gaydos' final argument is that the district court erred by
    refusing to reach the merits of her untimely post-trial motions
    for judgments of acquittal and a new trial.    Federal Rule of
    Criminal Procedure 29(c) states in pertinent part, "[I]f the jury
    returns a verdict of guilty . . . a motion for judgment of
    acquittal may be made . . . within 7 days after the jury is
    discharged or within such further time as the court may fix
    during the 7-day period."    District courts are without discretion
    to consider untimely motions for judgment of acquittal under Rule
    29(c).    Carlisle v. United States, 
    116 S. Ct. 1460
    , 1463-64
    (1996).   Since no extension of time was granted, the district
    court properly determined that it was without jurisdiction to
    consider the merits of Gaydos' untimely motions for judgment of
    acquittal.
    Similarly, Rule 33 requires that a motion for a new trial be
    filed "within 7 days after verdict or finding of guilty or within
    such further time as the court may fix during the 7-day period."
    We have held that the time limit for filing motions for a new
    trial under Rule 33 is jurisdictional.     United States v. Coleman,
    
    811 F.2d 804
    , 807 (3d Cir. 1987).     A district court is powerless
    to entertain untimely motions under Rule 33 unless it grants an
    appropriate extension within seven days after the verdict.      
    Id. (citations omitted).
      Since there was no extension of time, the
    18
    district court could not consider the merits of Gaydos' untimely
    motion for a new trial.5
    VI.
    In summary, we will reverse Gaydos' conviction under 18
    U.S.C. § 844(i), vacate her sentence and restitution order, and
    remand the cause to the district court.
    5
    Gaydos also contends that the district court erred by
    failing to hold a factual hearing so that we could rule directly
    on the merits of her ineffectiveness of counsel claims. We have
    emphasized our preference that claims of ineffectiveness of
    counsel be raised in a collateral proceeding under 28 U.S.C. §
    2255. See, e.g., United States v. Oliva, 
    46 F.3d 320
    , 323 (3d
    Cir. 1995); United States v. Rieger, 
    942 F.2d 230
    , 235-36 (3d
    Cir. 1991); United States v. Sandini, 
    888 F.2d 300
    , 311-12.
    Thus, although Gaydos' claims of ineffective counsel may be
    meritorious, they must be raised through a §2255 petition.
    19