United States v. Steven Robinson, Docket No. 04-0889-cr (2d Cir. Dec. 5, 2005) (Walker, Leval, Lynch (by designation)): This decision upholds, on a Government appeal, the district court’s grant of the defendant’s Rule 33 motion for a new trial on two counts on which he was convicted by a jury. The principal issue on appeal concerned the effect of the defendant’s failure to timely file the Rule 33 motion in the district court — that motion (1) was not filed within the 7-day period allowed by Rule 33 and (2) defense counsel sought an extension from the district court outside of that time period. The kick is that the Government did not object to defense counsel’s extension request, nor did it oppose the Rule 33 motion on timeliness grounds in its initial response to the defendant’s motion in the district court.
The dispute thus came down to this. If the time limit set forth in Rule 33 is considered “jurisdictional,” then the Government’s failure to timely raise the defendant’s untimeliness is of no moment — the motion must be dismissed because a court’s lack of power to act is not subject to waiver or forfeiture. But if Rule 33 sets forth only an “inflexible claim process rule,” then the Government’s failure to raise a timely objection to the defendant’s failure to abide by Rule 33’s time limit means that it has waived the argument, and the court can consider the Rule 33 motion on the merits.
Those keeping track of the Roberts Court know, of course, that the Supreme Court recently answered this question in Eberhardt v. United States, 126 S. Ct. 403 (2005) (per curiam): Rule 33’s time limits are merely claim-processing rules that can be waived (unlike true jurisdictional limitations). Here, therefore, the Government’s failure to timely object to the untimeliness of the defendant’s Rule 33 motion results in a waiver of such an argument on appeal.
The decision also upholds the merits of the district court’s decision to grant the Rule 33 motion, finding no abuse of discretion. The gist of the facts concerning this issue is that although one witness identified the defendant as the shooter at trial (the sole witness to do so), the same witness (1) previously denied knowing the identity of the shooter on several occasions, and (2) benefitted monetarily and otherwise from his testimony against the defendant. The Circuit ruled that on these facts, the district court did not abuse its discretion in granting the new trial motion.