Rehearing Loss

United States v. Owen, No. 07-4966-cr (2d Cir. March 9, 2009) (Feinberg, Cabranes, Hall, CJJ)

Defendant Owen has had a Rule 33 motion pending in the district court for quite some time. This is circuit’s third opinion in the case. In the first, Owen I, it held that the district court erred in granting the motion based on newly discovered evidence, but remanded for consideration of an ineffectiveness claim. See “33 Skidoo” posted September 25, 2007. In the second, Owen II, the court held that a “protective” notice of appeal, filed after the remand, was not effective, and agreed to hold the appeal in abeyance pending the district court’s resolution of the Rule 33 motion. See “On Hold,” posted January 19, 2009. Here, the court disposes of the government’s motion for panel rehearing of Owen II, in which the government claimed, for the first time, that the Rule 33 motion was untimely because the handwritten, pro se motion was filed 279 days after the verdict, while Rule 33 has a seven-day filing deadline for motions grounded on claims other than newly discovered evidence.

The court declined to resolve the question, and denied the government’s motion. The time period prescribed in Rule 33 is not “jurisdictional” – that is, created by statute – thus a district court can consider an untimely Rule 33 motion if the untimeliness was the result of excusable neglect. Here, while there is no evidence that Owen received an extension of time from the district court, it nevertheless appears that the court intended to decide the motion before counsel filed the protective notice of appeal.

Under these circumstances, since the Rule 33 motion is still pending, the district court is in the best position to decide, “in the exercise of its informed discretion,” whether the motion was timely.