Review Proceedings

• Pages: 1013-1185

V. REVIEW PROCEEDINGS

NEW TRIAL

On a defendant’s timely motion, a district court may grant a new trial “if the inter-

est of justice so requires.”

2626

Courts have granted new trials for a variety of reasons

found to be in “the interest of justice.”

2627

Only a defendant who has been through

V. REVIEW

PROCEEDINGS

2626. FED.R.CRIM. P. 29(d)(1); FED.R.CRIM. P. 33(a); see Mesarosh v. U.S., 352 U.S. 1, 10-14 (1956).

Although a timely filed motion for a new trial is rendered moot when the district court grants a judgment to

acquit, the district judge retains jurisdiction to consider the new trial motion on remand if the acquittal is

reversed on appeal. See, e.g., U.S. v. Lachman, 387 F.3d 42, 59-60 (1st Cir. 2004) (consideration of new trial

motion on remand required where district court failed to rule on defendant’s motion for new trial and acquittal

was vacated); U.S. v. Claxton 766 F.3d 280, 290-91 (3d Cir. 2014) (same); U.S. v. Kellington, 217 F.3d 1084,

1096 (9th Cir. 2000) (same); U.S. v. Miranda, 425 F.3d 953, 963 (11th Cir. 2005) (same). But see, e.g., U.S. v.

Smith, 739 F.3d 843, 848 (5th Cir. 2014) (consideration of new trial motion on remand precluded because

defendant failed to show error or abuse of discretion in district court’s rejection of new trial motions); U.S. v.

Boesen, 599 F.3d 874, 878 (8th Cir. 2010) (consideration of new trial motion on remand precluded because

defendant failed to make timely motion for new trial); U.S. v. McGowan, 668 F.3d 601, 605 (9th Cir. 2012)

(consideration of new trial motion on remand precluded because defendant failed to file prerequisite motions

before court); U.S. v. Montgomery, 468 F.3d 715, 721-22 (10th Cir. 2006) (same); U.S. v. Renick, 273 F.3d

1009, 1020-21 (11th Cir. 2001) (same).

For the effect of a new trial motion on timeliness of appeals, see Notice of Appeal in APPEALS in this Part.

2627. See, e.g., U.S. v. Martinez, 994 F.3d 1, 16 (1st Cir. 2021) (new trial granted because resulting

prejudice from refusing severance was such that convictions could not stand); U.S. v. Stewart, 907 F.3d 677,

688-91 (2d Cir. 2018) (new trial granted because district court’s exclusion of admissible evidence not harmless

to defendant’s case); U.S. v. Harra, 985 F.3d 196, 224-25 (3d Cir. 2021) (new trial granted because trial

environment emphasized legally erroneous theory reflected in jury instructions); U.S. v. Brizuela, 962 F.3d

784, 787 (4th Cir. 2020) (new trial granted because evidence in trial deviated from Federal Rules of Evidence);

U.S. v. Jordan, 958 F.3d 331, 338 (5th Cir. 2020) (new trial granted because Court Security Officer influence on

juror denied 6th Amendment right to fair trial); U.S. v. Lanier, 988 F.3d 284, 296-97 (6th Cir. 2021) (new trial

granted because district court did not notify defendants of juror misconduct, limiting defendants’ opportunity to

prove jury bias); U.S. v. Banks, 982 F.3d 1098, 1105-06 (7th Cir. 2020) (new trial granted because totality of

the circumstances implicated juror coercion); U.S. v. White, 863 F.3d 784, 786-87, 792 (8th Cir. 2017) (en

banc) (new trial granted because jury instructions “failed to sufficiently apprise the jury of the government’s

burden”); U.S. v. Litwin, 972 F.3d 1155, 1176-78 (9th Cir. 2020) (new trial granted because reason to believe

juror dismissed because of views on merits of case); U.S. v. Chavez, 976 F.3d 1178, 1193 (10th Cir. 2020) (new

trial granted because district court violated best-evidence rule); U.S. v. Brown, 996 F.3d 1171, 1191-94 (11th

Cir. 2021) (en banc) (new trial granted because defendant’s right to unanimous jury violated by dismissal of

juror who made religious statement that did not “unambiguously refer to an ‘outside source t[elling] him’ what

to do”and therefore did not negate juror’s understanding of legal duty to base decision on evidence); U.S. v.

Driscoll, 984 F.3d 103, 111, 114 (D.C. Cir. 2021) (new trial granted because improper jury instructions coerced

lone holdout juror to surrender honestly held views in favor of unanimous verdict). But see, e.g., U.S. v. Paga

´n-

Romero, 894 F.3d 441, 449 (1st Cir. 2018) (new trial denied because judge’s improper provision of dictionary

to jury did not prejudice jury); U.S. v. McCoy, 995 F.3d 32, 51 (2d Cir. 2021) (new trial denied because juror

had no bias against defendants or in favor of government); U.S. v. Greenspan, 923 F.3d 138, 154-56 (3d Cir.

2019) (new trial denied because cumulative error claim not brought on appeal nor did cumulative error

substantially affect outcome of trial); U.S. v. Millender, 970 F.3d 523, 531-32 (4th Cir. 2020) (new trial denied

because district court failed to explain decision to grant); U.S. v. Piper, 912 F.3d 847, 858 (5th Cir. 2019) (new

trial denied because newly discovered evidence vague and would not have changed result of trial); U.S. v.

Brooks, 987 F.3d 593, 604-05 (6th Cir. 2021) (new trial denied because juror did not make any overt statement

of clear racial bias); U.S. v. Guzman-Cordoba, 988 F.3d 391, 406 (7th Cir. 2021) (new trial denied because

comments by prosecutor would not have influenced outcome of trial, and defendant failed to object to said

comments at trial); U.S. v. Dowty, 964 F.3d 703, 708-09 (8th Cir. 2020) (new trial denied because district court

carefully weighed evidence and assessed credibility before deciding evidence did not favor acquittal); U.S. v.

Bruce, 984 F.3d 884, 899-900 (9th Cir. 2021) (new trial denied because undisclosed evidence did not

undermine confidence in outcome where multiple witnesses corroborated each other and considerable

circumstantial evidence implicated defendant); U.S. v. Khan, 989 F.3d 806, 828-29 (10th Cir. 2021) (new trial

denied because any objectionable testimony followed by curative instruction, and evidence of guilt

overwhelming); U.S. v. Gallardo, 977 F.3d 1126, 1142 (11th Cir. 2020) (new trial denied because weight of

51 Geo. L.J. Ann. Rev. Crim. Proc. (2022) 1013

trial may file for a new trial, so this remedy is unavailable to those who pleaded

guilty.

2628

Federal Rules provide that a motion based on newly discovered evidence must be

filed “within 3 years after the verdict or finding of guilty.”

2629

The states, however,

are free to set their own time limits.

2630

A federal district court does not have jurisdic-

tion to grant a motion for a new trial based on newly discovered evidence if an appeal

is pending.

2631

V. REVIEW

PROCEEDINGS

evidence sufficiently supported jury’s verdict); U.S. v. Browne, 953 F.3d 794, 802 (D.C. Cir. 2020) (new trial

denied because standard jury instructions on witness credibility and potential for bias did not need to include

defendant’s unsupported addition).

Some circuits have held that a court may not grant a new trial on grounds the defendant did not raise. See,

e.g., U.S. v. Cruz-Ramos, 987 F.3d 27, 43 (1st Cir. 2021) (grant of new trial improper in part because of

inadequate briefing and failure to raise argument in opening brief); U.S. v. Kennedy, 682 F.3d 244, 254 (3d Cir.

2012) (grant of new trial improper where court ordered motion sua sponte); U.S. v. Rafiekian, 991 F.3d 529,

551 (4th Cir. 2021) (grant of new trial improper in part because granted on grounds that defendant failed to

include in new trial motion); U.S. v. Shoemaker, 746 F.3d 614, 631-32 (5th Cir. 2014) (grant of new trial

improper where issue of improper jury instructions not raised in motion); U.S. v. Dandy, 998 F.2d 1344, 1356-

57 (6th Cir. 1993) (grant of new trial improper because appellant failed to raise insufficient evidence claim in

new trial motion); U.S. v. Moore, 363 F.3d 631, 638 (7th Cir. 2004) (same); vacated on other grounds, 543 U.S.

1100 (2005); U.S. v. Frommelt, 971 F.3d 823, 827 n.5 (8th Cir. 2020) (new trial improper in part because

defendant did not develop specific argument for new trial in brief); U.S. v. McGowan, 668 F.3d 601, 604-05

(9th Cir. 2012) (same); U.S. v. Quintanilla, 193 F.3d 1139, 1148-49 (10th Cir. 1999) (grant of new trial

improper after 7-day period expired when made sua sponte on grounds not asserted in motion). But see, e.g.,

U.S. v. Taylor, 176 F.3d 331, 335 (6th Cir. 1999) (trial court had jurisdiction to order new trial after 7-day

period expired based on issue of flawed jury instructions that was not raised).

2628. See, e.g., U.S. v. Graciani, 61 F.3d 70, 78 (1st Cir. 1995) (defendant who pleaded guilty could not

seek new trial under Rule 33 because defendant waived right to trial); U.S. v. Miller, 197 F.3d 644, 648 n.3 (3d

Cir. 1999) (same); U.S. v. Prince, 533 F.2d 205, 208 (5th Cir. 1976) (defendant who pleaded no contest could

not seek new trial under Rule 33 because defendant waived right to trial); U.S. v. Collins, 898 F.2d 103, 104

(9th Cir. 1990) (per curiam) (defendant who pleaded guilty could not seek new trial under Rule 33 because

defendant waived right to trial); U.S. v. Lambert, 603 F.2d 808, 809 (10th Cir. 1979) (same). The Sixth Circuit

has held that a defendant who knowingly and voluntarily waived their right to appeal in a sentencing agreement

could not seek a new trial. See U.S. v. Ross, 245 F.3d 577, 583 (6th Cir. 2001).

2629. FED.R.CRIM. P. 33(b); see, e.g., U.S. v. Connolly, 504 F.3d 206, 210 (1st Cir. 2007) (defendant’s

motion for new trial based on newly discovered evidence timely when filed within 3 years after conviction);

U.S. v. Williamson, 706 F.3d 405, 415 (4th Cir. 2013) (same; motion denied on other grounds); U.S. v. Ebron,

683 F.3d 105, 157-58 (5th Cir. 2012) (defendant’s motion for new trial based on newly discovered evidence

timely when filed within 3 years after conviction; motion denied on other grounds); U.S. v. O’Malley, 833 F.3d

810, 813 (7th Cir. 2016) (defendant’s motion for new trial based on newly discovered evidence timely when

filed within 3 years of trial); U.S. v. Battles, 745 F.3d 436, 446-47 (10th Cir. 2014) (defendant’s motion for new

trial based on newly discovered evidence timely when filed within 3 years of trial). But see, e.g., U.S. v.

Camacho, 370 F.3d 303, 304-05 (2d Cir. 2004) (defendant’s motion for new trial based on newly discovered

evidence untimely when filed approximately 5 years after jury’s verdict); U.S. v. Erwin, 277 F.3d 727, 731-33

(5th Cir. 2001) (defendant’s motion for new trial based on newly discovered evidence untimely when filed

more than 13 years after conviction); U.S. v. Monus, 356 F.3d 714, 716-17 (6th Cir. 2004) (defendant’s motion

for new trial based on newly discovered evidence untimely when filed more than 5 years after conviction); U.S.

v. Berry, 624 F.3d 1031, 1033 (9th Cir. 2010) (defendant’s motion for new trial untimely when filed almost 10

years after conviction, though court analyzed merits of claim because government failed to object).

A motion to set aside a conviction under 28 U.S.C. § 2255 does not restart or delay the running of the 3-year

time limit for filing the motion. See, e.g., U.S. v. Camacho, 370 F.3d 303, 308 (2d Cir. 2004) (collateral attack

on conviction or sentence does not affect timeliness of Rule 33 motion); Mankarious v. U.S., 282 F.3d 940, 945

(7th Cir. 2002) (same); Barnes v. U.S., 437 F.3d 1074, 1079 (11th Cir. 2006) (same).

2630. These limits may be significantly shorter than the federal limit. See Herrera v. Collins, 506 U.S. 390,

409-11 (1993).

2631. FED.R. CRIM . P. 33(b)(1). The court may hear and deny the motion while an appeal is pending, but

the court may not grant the motion until the case is remanded. See U.S. v. Cronic, 466 U.S. 648, 667 n.42

(1984); see, e.g., U.S. v. Graciani, 61 F.3d 70, 77 (1st Cir. 1995) (motion to vacate sentence denied when case

had not been remanded); Venen v. Sweet, 758 F.2d 117, 123 n.7 (3d Cir. 1985) (“When a new trial is sought

under Rule 33, while the direct appeal is pending, a district court has power to deny the motion and to grant the

1014 51 Geo. L.J. Ann. Rev. Crim. Proc. (2022)

To obtain a new trial based on newly discovered evidence, the defendant must

show that (1) the evidence was discovered after trial;

2632

(2) the failure to learn of the

V. REVIEW

PROCEEDINGS

motion once the court’s intention to do the latter has been certified to the appellate court and the case

remanded.”); Fobian v. Storage Tech. Corp., 164 F.3d 887, 891-92 (4th Cir. 1999) (district court had

jurisdiction to hear and deny new trial motion while appeal was pending); U.S. v. Burns, 668 F.2d 855, 857-58

(5th Cir. 1982) (same); U.S. v. Warner, 10 F.3d 1236, 1239-40 (6th Cir. 1993) (same); U.S. v. Goodwin, 770

F.2d 631, 639 n.3 (7th Cir. 1985) (same); U.S. v. Coplen, 533 F.3d 929, 930 n.2 (8th Cir. 2008) (same); U.S. v.

Frame, 454 F.2d 1136, 1138 (9th Cir. 1972) (per curiam) (same); U.S. v. Draper, 746 F.2d 662, 665-66 (10th

Cir. 1984) (same); U.S. v. Khoury, 901 F.2d 975, 976 (11th Cir. 1990) (same); U.S. v. Quinn, 475 F.3d 1289,

1290-91 (D.C. Cir. 2007) (case temporarily suspended until district court denies motion for new trial or certifies

its intent to grant motion to Court of Appeals who could remand case).

2632. Information known by the defendant at the time of trial does not constitute newly discovered

evidence. See, e.g., U.S. v. Peake, 874 F.3d 65, 72-73 (1st Cir. 2017) (change in the law not considered newly

discovered evidence within the purview of Rule 33); U.S. v. Forbes, 790 F.3d 403, 407-11 (2d Cir. 2015)

(testimony from coconspirator who had invoked 5th Amendment privilege not considered newly discovered

evidence when defendant was aware of purportedly exculpatory evidence before and during trial); U.S. v. Noel,

905 F.3d 258, 270-74 (3d Cir. 2018) (evidence of juror misconduct not considered newly discovered because

reasonable diligence into juror’s voir dire response would have revealed it); U.S. v. Ali, 991 F.3d 561, 571 (4th

Cir. 2021) (declaration filed after trial not considered newly discovered evidence because its substance

consisted of observations made during trial); U.S. v. Holmes, 406 F.3d 337, 359 n.34 (5th Cir. 2005) (testimony

of private investigator not considered newly discovered evidence when defendant had access before trial); U.S.

v. Olender, 338 F.3d 629, 635-36 (6th Cir. 2003) (court order indicating defendant no longer felon not

considered newly discovered evidence when order was new interpretation of previously presented evidence);

U.S. v. Westmoreland, 712 F.3d 1066, 1073 (7th Cir. 2013) (affidavits from defendant’s friends stating that

investigating officer began affair with defendant’s wife during investigation not considered newly discovered

evidence when defendant knew but made no effort to find witnesses before trial); U.S. v. Erickson, 999 F.3d

622, 631 (8th Cir. 2021) (audio recording of testimony was not newly discovered evidence when defendant

already had substantially similar written summary); U.S. v. King, 735 F.3d 1098, 1108-09 (9th Cir. 2013)

(change in law which plaintiff alleged negated grounds for conviction not considered new evidence because

changes in law do not constitute newly discovered evidence); U.S. v. Hill, 737 F.3d 683, 688-89 (10th Cir.

2013) (opinion testimony not considered newly discovered evidence because it was deemed inadmissible); U.S.

v. Brown, 934 F.3d 1278, 1290 (11th Cir. 2020) (enhanced video of the incident did not constitute newly

discovered evidence); U.S. v. Dale, 991 F.2d 819, 838-39 (D.C. Cir. 1993) (testimony of coconspirators who

refused to testify at trial not considered newly discovered evidence because defendant knew testimony’s value

at time of trial).

The majority of circuits have held that Rule 33 does not authorize district courts to grant new trials on the

basis of unavailable evidence because it is not newly discovered. See, e.g., U.S. v. Forbes, 790 F.3d 403, 409

(2d Cir. 2015) (holding that post-trial testimony of witness who invoked 5th Amendment privilege during trial

not newly discovered evidence because unavailable during trial for law-based reason); Weaver v. U.S., 793

F.3d 857, 865 (8th Cir. 2015) (belated exculpatory testimony by codefendant who did not testify at trial not

considered newly discovered evidence, but newly available); U.S. v. Orr, 692 F.3d 1079, 1099-100 (10th Cir.

2012) (witness’s availability upon return from Africa not newly discovered but newly available). But see, e.g.,

U.S. v. Hernandez-Rodriguez, 443 F.3d 138, 143-44 (1st Cir. 2006) (newly discovered evidence includes

codefendant’s exculpatory affidavit, which was unavailable at time of trial due to 5th Amendment privilege).

A claim of ineffective assistance of counsel does not constitute newly discovered evidence if the claim is

based on information known to the defendant at the time of trial, even if the defendant did not appreciate the

legal significance of the information until later. See, e.g., U.S. v. Lenz, 577 F.3d 377, 382 (1st Cir. 2009)

(ineffective-assistance-of-counsel claim based on alleged failure to contact victim to ascertain whether victim

would corroborate testimony not newly discovered evidence because defendant and counsel knew substance of

defendant’s conversations with victim at time of trial); U.S. v. Castillo, 14 F.3d 802, 805 (2d Cir. 1994)

(ineffective-assistance-of-counsel claim based on counsel’s alleged failure to allow defendant to testify not

newly discovered evidence); U.S. v. DeRewal, 10 F.3d 100, 104 (3d Cir. 1993) (noting that language from

other circuits “certainly suggest[s] that newly discovered evidence must generally, if not always, be related to

the issues at trial, not to separate legal claims such as ineffective assistance of counsel”); U.S. v. Smith, 62 F.3d

641, 648 (4th Cir. 1995) (ineffective-assistance-of-counsel claim not newly discovered evidence under Rule

33); U.S. v. Ugalde, 861 F.2d 802, 806 (5th Cir. 1988) (same); U.S. v. Hall, 979 F.3d 1107, 1125 (6th Cir. 2020)

(ineffective-assistance-of-counsel claim not newly discovered evidence when defendant already had reason to

know of prejudice at time of verdict and during trial); U.S. v. Brown, 742 F.2d 363, 368 (7th Cir. 1984)

(ineffective-assistance-of-counsel claim not newly discovered evidence because defendant knew of counsel’s

misconduct before and during trial); U.S. v. Laird, 948 F.2d 444, 446 (8th Cir. 1991) (ineffective-assistance-of-

51 Geo. L.J. Ann. Rev. Crim. Proc. (2022) 1015