UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

HALL, DENNIS


99-3141b

D.C. Cir. 2000


*	*	*


United States Court of Appeals


FOR THE DISTRICT OF COLUMBIA CIRCUIT


Argued April 10, 2000 Decided June 2, 2000 


No. 99-3141


United States of America,  Appellant


v.


Dennis Hall,  Appellee


Appeal from the United States District Court  for the District of
Columbia  (No. 98cr00435-01)


Thomas J. Tourish, Jr., Assistant U.S. Attorney, argued  the cause for
appellant. With him on the briefs were Wilma  A. Lewis, U.S. Attorney,
and John R. Fisher and Anne  Pings, Assistant U.S. Attorneys.


Sara E. Kopecki argued the cause and filed the brief for  appellee.


Before: Edwards, Chief Judge, Henderson and Rogers,  Circuit Judges.


Opinion for the Court filed by Chief Judge Edwards.


Edwards, Chief Judge: Appellant, the United States, raises  only one
question on this appeal: Did the District Court have  jurisdiction to
grant a motion for a new trial nunc pro tunc  (which literally means
"now for then") in order to circumvent  the time limitations of
Federal Rule of Criminal Procedure  33? Rule 33 provides that a motion
for a new trial must be  filed "within 7 days after the verdict or
finding of guilty or  within such further time as the court may fix
during the 7- day period" (emphasis added). There is no dispute that
the  District Court did not actually grant Mr. Dennis Hall's mo- tion
for an extension of time within 7 days after a jury found  appellee
Hall guilty of possessing a firearm and ammunition  after a felony
conviction in violation of 18 U.S.C. s 922(g)  (1994) and of
possessing marijuana in violation of 21 U.S.C.  s 844(a) (1994) on May
5, 1999. Mr. Hall filed his motion for  an extension of time on May
14, 1999, within 7 days after the  verdict; but the trial court did
not respond to that motion  until after the 7 days had passed. Mr.
Hall subsequently  filed a motion for a new trial on June 10, 1999;
this filing was  within the time limit set by the District Court when
it  eventually granted Mr. Hall's motion for an extension of time. 
The sole controversy in this case is whether the District  Court had
the authority to avoid Rule 33's time limit--that is,  whether the
court was authorized to wait until June 3, 1999,  almost one month
after the jury verdict, before granting Mr.  Hall's motion for an
extension and then back-date its decision  nunc pro tunc to May 14,


We agree with the Government that the District Court  erred. The
District Court's nunc pro tunc order was a  nullity. We also reject
any suggestion that Mr. Hall was at  the mercy of the District Court,
for there was no reason that  Mr. Hall could not have filed a motion
for a new trial within  Rule 33's 7-day time period. Counsel could not
provide such  a reason at oral argument, and we can discern none.


we reject as specious Mr. Hall's claim that the District  Court's
pre-verdict ruling, deferring consideration of the de- fendant's
objection to the prosecutor's closing argument, nec- essarily
transformed the defendant's pre-verdict motion to  one for a new trial
or mistrial. We therefore reverse the  District Court's judgment.


I. FACTS


Mr. Hall's jury trial commenced on May 3, 1999. On May  5, 1999, the
jury found Mr. Hall guilty on one count of  possession of a firearm
and ammunition by a convicted felon  and one count of possession of
marijuana. Seven business days  after the jury's verdict, on May 14,
1999, Mr. Hall filed a  timely motion for an extension of time
alleging that the  prosecution had continually and impermissibly
emphasized  Mr. Hall's status as a convicted felon during its rebuttal


Despite Rule 33's clear prescription that a court may only  grant an
extension "within such further time as the court may  fix during the
7-day period" after the verdict or finding of  guilty, the District
Court chose to hold Mr. Hall's motion in  abeyance to allow the
Government to respond. On June 3,  1999, after it became clear that
the Government did not  intend to respond, the District Court granted
Mr. Hall's  motion nunc pro tunc to May 14, 1999 and authorized Mr. 
Hall to file a motion for a new trial on or before June 10,  1999. Mr.
Hall met the new deadline.


On July 9, 1999, the Government filed an opposition, argu- ing that the
District Court lacked jurisdiction under Rule 33  to consider the
motion for a new trial. In particular, the  Government challenged the
District Court's attempt to cir- cumvent Rule 33's time requirement by
resorting to nunc pro  tunc relief. On October 1, 1999, the District
Court granted  Mr. Hall's motion for a new trial, finding that "[t]o
penalize  the defendant for the Court's delay in granting the motion, 
which delay resulted from an effort of the Court, sua sponte,  to
protect the government's right to respond, would be mani- festly
unjust, if not an unconstitutional violation of the due 


process clause." United States v. Hall, No. 98-435-LFO,  Mem. Op. at 4
(D.D.C. Nov. 4, 1999) ("Mem. Op."). This  appeal followed.


II. ANALYSIS


A. Standard of Review


Motions for new trials that implicate jurisdictional issues  are
reviewed de novo. See United States v. Torres, 115 F.3d  1033, 1035
(D.C. Cir. 1997) ("Although we typically review  denials of new trial
motions for abuse of discretion, because  the district court dismissed
Torres's motion on jurisdictional  grounds, our review is de novo."
(internal citations omitted)).


B. Jurisdiction


The District Court's actions are clearly proscribed by the  Supreme
Court's decision in Carlisle v. United States, 517  U.S. 416 (1996), a
case that the District Court's opinion fails  to mention. In Carlisle,
the Court considered whether a  district court had authority to grant
a post-verdict motion for  judgment of acquittal filed just one day
outside of the time  limit prescribed by Federal Rule of Criminal
Procedure 29(c).  Rule 29(c) provides, in relevant part, that "[i]f
the jury  returns a verdict of guilty ..., a motion for judgment of 
acquittal may be made or renewed within 7 days after the  jury is
discharged or within such further time as the court  may fix during
the 7-day period." Fed. R. Crim. P. 29(c). It  is true that the
petitioner in Carlisle, unlike Mr. Hall, filed an  untimely motion.
This factual distinction is not cause for  much concern, however,
because like Mr. Hall, the petitioner  in Carlisle argued that
district courts should have the discre- tion to step outside of the
Rules' strict time limits, and it is  this latter assertion upon which
the Carlisle Court ultimately  focused. In particular, the Court read
Rule 29(c) in conjunc- tion with Rule 45(b), which provides that,
absent a showing of  excusable neglect, "the court may not extend the
time for  taking any action under Rules 29, 33, 34 and 35, except to
the  extent and under the conditions stated in them." Fed. R.  Crim.
P. 45(b). This language convinced the Court that, 


because "[t]hese rules are plain and unambiguous ...  [, t]here is
simply no room in the text of Rules 29 and 45(b)  for the granting of
an untimely postverdict motion of acquit- tal...." Carlisle, 517 U.S.
at 421. The Court therefore  concluded that the text of the relevant
Rules did not autho- rize district courts to circumvent Rule 29's time
limits.


The Court also considered and rejected petitioner's argu- ment that, in
the absence of textual support from the Rules  themselves, courts
retain limited "inherent supervisory au- thority" to depart from the
Rules' strict time limits. In  advancing this argument, the petitioner
in Carlisle relied on  United States v. Hasting, 461 U.S. 499 (1983),
where the  Court held that courts "may, within limits, formulate
proce- dural rules not specifically required by the Constitution or
the  Congress." Id. at 505. The Carlisle Court read the decision  in
Hasting very narrowly, however, holding that "[w]hatever  the scope of
this 'inherent power,' ... it does not include the  power to develop
rules that circumvent or conflict with the  Federal Rules of Criminal
Procedure." Carlisle, 517 U.S. at  426. In other words, as a general
principle, when the text of  a rule is clear, it must be enforced as
written. The Court  allowed that a failure to meet a prescribed time
limit might  be excused in "the 'unique circumstances' that the cause
of  the failure to meet the Rule's deadline was an erroneous  ruling
or assurance by the District Court itself." Id. at 428.  At bottom,
however, Carlisle says that "[t]he case law of [the]  Court ... does
not establish any 'inherent power' to act in  contravention of


In the present case, Rule 33 is unambiguous. The Rule  means what it
says: A court can only extend the time in  which to grant a motion for
a new trial if a court fixes such a  time within 7 days of the verdict
or finding of guilty. Rule  45(b) resolves any possible ambiguity by
noting that a district  court's authority to extend time is limited
"to the extent and  under the conditions stated" in Rule 33. Fed. R.
Crim. P.  45(b).


We recognize that a trial court may exercise "long ...  unquestioned"
"inherent power" in the enforcement of Rules, 


but such a power may only be exercised when it does not run  afoul of
an express and unambiguous Rule to the contrary.  Carlisle, 517 U.S.
at 426. The "long ... unquestioned" power  caveat therefore has no
application in this case, because Rule  33 is absolutely clear in its
terms.


The District Court in this case sought to justify its disputed  action
by suggesting that it would be fundamentally unfair to  reject Mr.
Hall's untimely motion:


To penalize the defendant for the Court's delay in grant- ing the
motion, which delay resulted from an effort of the  Court, sua sponte,
to protect the government's right to  respond, would be manifestly
unjust, if not an unconstitu- tional violation of the due process


Mem. Op. at 4. We disagree. Indeed, the defendant does  not even
contend that the District Court somehow erred in  failing to respond
to the motion for extension of time within  the 7-day period. This is
not surprising, because nothing in  Rule 33 compels a district court
to respond to a motion for an  extension of time within the 7-day time
limit; the Rule  merely provides that after the 7-day window has
closed, a  district court is without jurisdiction to grant an
extension of  time. Thus, although the trial court's decision to delay
its  decision did not violate any law, its decision to grant an 
extension of time after the 7-day window had closed neces- sarily
abrogated Rule 33 and was thus impermissible.


Furthermore, there was no reason why Mr. Hall could not  have filed a
motion for a new trial within Rule 33's 7-day time  limit. At oral
argument, counsel offered no explanation for  this oversight, and we
can discern none.


Finally, Mr. Hall argues that the District Court effectively  converted
a defense objection into a motion for a new trial  when the trial
judge addressed the parties before the case  was submitted to the
jury. Following closing argument by  Mr. Hall's attorney, the
prosecutor, in rebuttal, warned the  jury not to allow Mr. Hall's
attorney to get away with playing  a "race card." Mem. Op. at 7. Mr.
Hall's attorney objected  and requested the trial judge to instruct
the jury to disregard 


the prosecutor's rebuttal. The judge, however, said that he  was "not
going to get into this. The jury will sort this out  and I'll consider
it after we have a verdict." Id. at 8. Mr.  Hall argues that this
statement by the judge necessarily  converted the defendant's motion
to one for a new trial or  mistrial. This is a specious claim. The
District Court never  suggested this ground as a basis for the relief
afforded Mr.  Hall; rather, the court granted Mr. Hall's motion for an
 extension of time nunc pro tunc. Furthermore, Mr. Hall's  own actions
demonstrate the baselessness of his reading of  the District Court's
statements; if Mr. Hall were so certain  that his pre-verdict motion
had been converted to a motion  for a new trial or mistrial, there
would have been no need for  him to file a motion for an extension of
time in which to file a  motion for a new trial. The simple truth is
that the District  Court acted on an untimely motion for a new trial,
something  that it had no authority to do under Rule 33.


III. CONCLUSION


For the foregoing reasons, the District Court was without  jurisdiction
to grant Mr. Hall's motion for an extension of  time nunc pro tunc. We
therefore reverse the judgment of  the District Court.