Summary
In Hosch, the motion for extension was filed on the seventh day after the verdict, but the clerk did not forward it to the judge until the eighth day.
Summary of this case from City of Fargo v. McLaughlinOpinion
Crim. A. No. 89-013.
May 30, 1989.
John Volz, U.S. Atty., Marilyn Gainey Barnes and Robert J. Boitman, Asst. U.S. Attys., New Orleans, La., for the U.S.
John H. Craft, Asst. Federal Public Defender, New Orleans, La., for defendant Hosch.
This matter is before the Court on defendant Hosch's motion for extension of time in which to file motion for a new trial.
The jury returned its guilty verdict on Wednesday, May 17, 1989. This motion was filed with the Clerk on Friday afternoon, May 26, 1989. Thus, the motion was timely filed within seven "days" within the meaning of F.R.Cr.P. 33 and 45(a).
The Court did not receive the motion from the Clerk, however, until today (the "eighth day" after the verdict, inasmuch as yesterday was Memorial Day). The issue, then, is whether the Court has the jurisdictional power to grant the motion now that more than seven "days" after the verdict have passed. The Court has found no cases directly on point. Nonetheless, the Court believes it has jurisdiction to grant an extension, where as here the motion itself was filed timely. Cf. U.S. v. Mendoza, 581 F.2d 89 (CA5 1978) (per curiam) (en banc) (district court has power to grant a former Rule 35(b) motion for reduction of sentence after the 120-day period, provided that the motion is filed within the 120-day period).
Nothing that the government does not oppose the motion, the Court GRANTS the motion. Defendant shall have until Friday, June 9, 1989 to file a motion for new trial.