United States v. Quinn, Robert ( 2007 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 23, 2007 Decided January 26, 2007
No. 06-3058
UNITED STATES OF AMERICA,
APPELLEE
v.
ROBERT E. QUINN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 05cr00018-01)
Aitan D. Goelman argued the cause for appellant. With him
on the briefs was Barak Cohen.
John P. Mannarino, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese, III, Elizabeth
Trosman, Jay I. Bratt, and Laura A. Ingersoll, Assistant U.S.
Attorneys.
Before: GRIFFITH and KAVANAUGH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed Per Curiam.
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Per Curiam: This case involves the prosecution and
conviction of Robert E. Quinn for arranging the sale of forklift
replacement parts in violation of the trade embargo against Iran.
A superseding indictment charged Quinn with one count of
conspiracy to commit an offense against the United States, see
18 U.S.C. § 371, and five counts of violating the embargo (and
of aiding, abetting, and causing each violation), see 50 U.S.C.
§ 1705(b) (establishing penalties for “[w]hoever willfully
violates . . . any . . . regulation issued under this chapter”); 31
C.F.R. § 560.204 (prohibiting “the exportation . . . directly or
indirectly” of goods from the United States to Iran). Quinn’s
defense at trial was that he did not “willfully” violate the
embargo.
Just over two months after Quinn was sentenced, Tatum,
Quinn’s boss, pled guilty to making a material false statement in
violation of 18 U.S.C. § 1001. In support of the plea, Tatum
admitted that he lied when he “stated to [federal] agents that,
after learning of Quinn’s . . . dealing with [the Iranian
company], he had instructed [Quinn] to cease sending . . .
replacement parts to [that company] either directly or through a
third party.” Joint Appendix 265. It appears that, prior to
Tatum’s admission of his material false statement during his
plea colloquy, Quinn had no way to prove that Tatum had lied
to government agents, and Quinn apparently did not know that
Tatum had admitted his material false statement to the
prosecutor. In other words, because Tatum’s plea was not
entered until after Quinn’s trial had concluded, Quinn was
unable to present this particular evidence of Tatum’s fabrication
and recantation to the jury.
During oral argument before this court, counsel for Quinn
indicated that he planned to file a motion in the District Court
requesting a new trial based on the newly discovered evidence
of Tatum’s plea. Under Federal Rule of Criminal Procedure
33(b)(1), “[a]ny motion for a new trial grounded on newly
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discovered evidence must be filed within 3 years after the
verdict.” But, “[i]f an appeal is pending, the court may not grant
a motion for a new trial until the appellate court remands the
case.” FED. R. CRIM. P. 33(b)(1). The Supreme Court has stated
that, pursuant to Rule 33, where a defendant files a post-
conviction motion for a new trial during the pendency of his
direct appeal, “[t]he District Court ha[s] jurisdiction to entertain
the motion and either deny the motion on its merits or certify its
intention to grant the motion to the Court of Appeals, which
could then entertain a motion to remand the case.” United States
v. Cronic, 466 U.S. 648, 667 n.42 (1984).
Given counsel’s indication that a Rule 33 motion will be
filed with the District Court, we will hold the case in abeyance
until the District Court either denies the Rule 33 motion, or
certifies “its intention to grant the motion.” See id.; Smith v.
Pollin, 194 F.2d 349, 349-50 (D.C. Cir. 1952) (per curiam). If
the District Court “indicate[s] willingness to grant a new trial,”
Quinn may then file a motion in this court requesting remand of
the case. Gordon v. United States, 383 F.2d 936, 938 (D.C. Cir.
1967) (recounting application of the procedure); see United
States v. Hall, 324 F.3d 720, 721-22 (D.C. Cir. 2003) (same). If,
however, the District Court denies the Rule 33 motion, then
Quinn may appeal the denial, and that appeal will be
consolidated with the case now held in abeyance. See United
States v. Smith, 331 F.2d 145, 145 (6th Cir. 1964) (order)
(directing “that consideration and decision of this appeal be held
in abeyance until the trial judge certifies to this Court whether
he will grant the motion for a new trial or deny the same” where
counsel had orally informed court of Rule 33 motion); cf. United
States v. Lee, 509 F.2d 400, 402 (D.C. Cir. 1974) (consolidating
appeal held in abeyance for another reason with appeal from
denial of post-conviction Rule 33 motion). In following this
procedure, we conserve judicial resources – neither needlessly
remanding the case, see Smith v. Pollin, 194 F.2d at 350, nor
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addressing issues on appeal that may ultimately be mooted by
the grant of a new trial.
The appeal presently before us will be held in abeyance
pending further proceedings in connection with the Rule 33
motion.
So ordered.