United States District Court, S.D. Mississippi, Northern Division
BRAMLETTE UNITED STATES DISTRICT JUDGE
cause is before the Court on defendant Mark Randall
Jones' Motion for New Trial (docket entry
215). Having carefully reviewed the motion and
applicable statutory and case law, the Court finds and orders
a three-day trial on March 29, 2017, Mark Randall Jones
(“Jones”) was found guilty of conspiracy to
possess with intent to distribute more than five kilograms of
cocaine hydrochloride and possession with intent to
distribute more than 500 grams of cocaine hydrochloride. On
April 10, 2017, Jones filed a motion for acquittal, motion
for new trial, and motion for arresting judgment, followed by
his Notice of Appeal. The Court entered an order denying
Jones' post-trial motions on May 15, 2017. Jones'
filed a second Motion for New Trial on August 28, 2017.
second motion for new trial comes before the Court more than
four months after the verdict was entered and notice of
appeal filed in this case. Despite this procedural posture,
the defendant reduces his jurisdictional discussion to a
single footnote, wherein he summarily asserts that his motion
is properly before the Court as either a motion for new trial
under Federal Rule of Criminal Procedure 33(b) or a motion
for reconsideration of the Court's previous denial of the
same. Nonetheless, the Court finds it necessary to address
whether Jones' motion is properly before the court before
delving into its merits.
Rule 33, motions for new trial “grounded on any reason
other than newly discovered evidence must be filed 14 days
after the verdict or finding of guilt.” Fed. R. Crim.
P. 33(b)(2). Jones' motion, which contains no reference
to newly discovered evidence, was belatedly filed on August
28, 2017, more than four months after the verdict. Jones
asserts that his motion is a timely motion for new trial
under Rule 33(b) because the trial transcript and related
materials were not available at the time his first motion for
new trial was filed. See Doc. 215, p. 1 n.2. Inasmuch as the
defendant claims that the present motion should, in some way,
supplement or relate back to the filing of his first motion
for new trial, this argument is unpersuasive. Courts
considering similar arguments have held that an untimely
motion for new trial cannot relate back to, amend, or renew
an original timely motion. See United States v.
Bramlett, 116 F.3d 1403, 1406 (11th Cir. 1997) (finding
that a “renewed” motion for new trial filed
beyond the requisite time period could not relate back to
timely filed motion); United States v. Custodio, 141
F.3d 965, 966 (10th Cir. 1998) (“a defendant may not
add new arguments in support of a motion for new trial by
including them in an amendment filed after the time under
Rule 33 has expired”); United States v.
Camacho, 163 F.Supp.2d 287, 294 (S.D.N.Y. 2001) (finding
that defendants' motion could not be treated as a timely
amendment or supplement to prior motion for new trial where
the court already ruled on prior motion); see also United
States. v. Elizondo, 277 F.Supp.2d 691, 694 (S.D. Tex.
2002) (construing second motion for new trial filed after the
court's disposition of the first as a motion for
reconsideration). As the Court has already disposed of
Jones' prior motion, the defendant's second motion
for new trial is untimely.
Jones' motion is untimely under Rule 33, it is more
appropriately construed as a motion for reconsideration of
the denial of his first motion for new trial. Though the
Federal Rules of Criminal Procedure are silent as to motions
for reconsideration, “[t]he Supreme Court has
repeatedly and expressly sanctioned the use of motions for
reconsideration in criminal proceedings.” United
States v. Cook, 670 F.2d 46, 48 (5th Cir.
1982). Motions for reconsideration of the denial
of a motion for new trial are timely if filed within the
period allotted for noticing an appeal. United States v.
Harris, 2008 WL 783645, at *1 (S.D.Miss. Mar. 24, 2008);
see also Cook, 670 F.2d at 48 (finding that an untimely
motion for reconsideration was beyond the jurisdiction of the
district court). Again, however, Jones' motion appears to
be untimely as it falls beyond the permitted window for
filing motions for reconsideration. See Fed. R. App. P. 4(b).
Jones' motion was filed months after the verdict and
judgment of conviction, and more than 14 days after the
Court's order disposing of the first motion for new
trial. What's more, Jones filed his notice of appeal in
this matter on April 10, 2017, and that appeal remains
pending. See United States v. Neuman, 2012 WL
2327929, at *3 (E.D. La. June 18, 2012) (denying
defendant's motion for reconsideration filed after notice
of appeal for lack of jurisdiction). The defendant's
motion is therefore improperly before the Court and is due to
be denied on this basis.
the Court had jurisdiction to consider Jones' motion as
either a second motion for new trial or a motion for
reconsideration, the Court finds the motion to be without
merit. Rule 33 provides that the Court may vacate a judgment
and grant a new trial “if the interest of justice so
requires.” Fed. R. Crim. P. 33(a). The generally
accepted standard within this Circuit is that “a new
trial ordinarily should not be granted unless there would be
a miscarriage of justice or the weight of the evidence
preponderates against the verdict.” United States
v. Wright, 634 F.3d 770, 775 (5th Cir. 2011) (quoting
United States v. Wall, 389 F.3d 457, 466 (5th Cir.
2004)). New trials are only granted “upon demonstration
of adverse effects on substantial rights of a
defendant.” Wright, 634 F.3d at 775.
on arguments presented in his previously filed post-trial
motions, Jones now claims, for the first time, that he is
entitled to a new trial because the Government improperly
argued to the jury that certain 404(b) evidence was
sufficient to sustain a conviction against him. But the jury
was instructed as to the limited purposes of Rule 404(b)
evidence and was further advised that the questions,
statements, objections, and arguments made by the lawyers
were not to be construed as evidence and were not binding
upon them. Having reviewed the present motion and exhibits,
and having reconsidered the defendant's prior motion in
the context of Rule 33, the Court is unpersuaded that a new
trial is warranted.
IT IS HEREBY ORDERED AND ADJUDGED that the defendant's
Motion for New Trial (docket entry 215) is DENIED.