U.S.A. v. Lussier

• Citation: 219 F.3d 217
• Decision Date: 07 January 2000
• Docket Number: Docket No. 98-1392
• Parties: (2nd Cir. 2000) United States of America, Appellee, v. Roger R. Lussier, Defendant-Appellant. August Term 1999 (
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 217

219 F.3d 217 (2nd Cir. 2000)

United States of America, Appellee, v. Roger R. Lussier, Defendant-Appellant.

Docket No. 98-1392

August Term 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

(Argued January 7, 2000)

(Decided July 10, 2000)

CHERYL J. STURM, Westtown, PA, for Defendant-Appellant.

PAUL J. VAN DE GRAAF, Assistant United States Attorney, David V. Kirby, Acting United States Attorney, District of Vermont, Burlington, VT, for Appellee.

Before: KEARSE, WALKER, and CALABRESI, Circuit Judges.

Appeal from the order of the United States District Court for the District of Vermont (J. Garvan Murtha, Chief Judge) denying appellant's motion for a new trial. Vacated and remanded for dismissal.

JOHN M. WALKER, JR., Circuit Judge:

Appellant Roger R. Lussier appeals from a judgment of the district court for the District of Vermont (J. Garvan Murtha, Chief Judge) that denied his motion for a new trial based on newly discovered evidence pursuant to Fed. R. Crim. P. 33. Because we find that the motion was not timely filed, we vacate the judgment of the district court and remand the case with instructions that the motion be dismissed.

BACKGROUND

In 1993, Roger Lussier ("Lussier"), the former president and chairman of the board of Lyndonville Savings Bank, was indicted on twenty counts of bank fraud, false statements, accepting bribes and money laundering, arising out of six different transactions. After a jury trial, Lussier was convicted on 17 of the 20 counts. On June 21, 1994, the court sentenced him to 46 months' imprisonment, two years' supervised release, a fine of $100,000 and restitution in the amount of $426,204.67. This court affirmed the conviction and sentence on August 18, 1995, United States v. Lussier, 71 F.3d 456 (2d Cir. 1995), and issued a mandate on December 20, 1995. Lussier filed a petition for certiorari, which was denied on March 25, 1996. In January 1997, Lussier filed a petition to vacate his conviction pursuant to 28 U.S.C. § 2255. On March 18, 1998, the district court denied the petition, but modified the judgment to eliminate the court-ordered restitution. On March 23, 1998, 27 months after the issuance of the mandate by this court, Lussier filed a pro se motion pursuant to Fed. R. Crim. P. 33 for a new trial based on newly discovered evidence. On June 11, 1998, the district court denied the motion without an evidentiary hearing, finding that Lussier raised evidence that was neither newly discovered nor material. This appeal followed.

DISCUSSION

On appeal, Lussier argues that the district court abused its discretion by denying his Rule 33 motion for a new trial because the facts set forth in his motion establish the existence of newly-discovered material evidence that was suppressed in violation of Kyles v. Whitley, 514 U.S. 419 (1995). We do not reach this question. Lussier's Rule 33 motion must be dismissed as untimely because it was filed more than two years after the judgment became final.

The applicable version of Rule 33 of the Rules of Criminal Procedure, in effect on March 23, 1998 when Lussier filed his motion, provides that "[a] motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment." Fed. R. Crim. P. 33 (amended 1998). After Lussier filed his motion, Rule 33 was amended, effective December 1, 1998, to provide that a motion for a new trial based on newly discovered evidence "may be made only within three years after the verdict or finding of guilty." Fed. R. Crim. P. 33. Lussier makes no argument that the new Rule 33 applies to his case. But even if the new Rule were to apply to a motion filed prior to its effective date, it is clear that Lussier's motion would be untimely under that rule since it was filed on March 23, 1998, more than three years after he was found guilty on December 22, 1993.

The question presented by this case is, in the context of a motion under the version of Rule 33 in effect prior to December 1, 1998, when a judgment becomes final. Lussier's principal argument is that his motion was timely because the original judgment did not become "final" until the Supreme Court denied certiorari, on March 25, 1996. We disagree.

In United States v. Reyes, 49 F.3d 63 (2d Cir. 1995), we considered the question of "whether, in the event of an appeal in a criminal case, the two-year period for a Rule 33 motion on the ground of newly discovered evidence runs from the date of the appellate court's judgment or the date of its mandate." Id. at 65. While the judgment is the document that states the dispositive action taken by the court of appeals, the mandate is the document that officially conveys to the district court the action taken by the court of appeals. The mandate typically issues 21 days after entry of the judgment or seven days after entry of an order denying a timely petition for rehearing. See Fed. R. App. P. 40, 41. After reviewing the law in other circuits, we concluded that the date of the mandate controlled. We rejected the government's argument that the date of appellate judgment was preferable because it would not allow for longer time periods in cases where, pursuant to Rule of Appellate Procedure 41(b), the court of appeals stayed issuance of the mandate pending Supreme Court review. We noted that "[a]ppellate courts remain in control of the date for issuing mandates and generally delay issuance only when the merits of a criminal appeal are of sufficient substance to make Supreme Court review at least a reasonable possibility." Id. at 68.

Lussier argues that Reyes is inapplicable because the appellant in that case had not filed a petition for certiorari. However, we find no hint in Reyes that the court's analysis would have been any different if the appellant there had petitioned for certiorari. Indeed, one of the cases cited by the Reyes court in support of its holding was United States v. Biaggi, 823 F. Supp. 1151, 1160 (S.D.N.Y. 1993), where the district court rejected the movants' argument that the appellate process is not terminated until the Supreme Court either denies certiorari or decides the case. See Reyes, 49 F.3d at 66 n.5; Biaggi, 823 F. Supp. at 1160 ("movants provide no case law to support their contention[] that . . . the denial of certiorari amounts to a final judgment.").

In addition, the other circuit courts that have considered the question have found that the two-year time period prescribed by Rule 33 prior to December 1, 1998 runs from the issuance of the court of appeals mandate, regardless of whether a petition for certiorari was filed. See, e.g., United States v. Spector, 888 F.2d 583, 584 (8th Cir. 1989) (per curiam) ("[T]he two-year time period for a Rule 33 motion begins to run when the...