U.S. v. Navarro Viayra, 02-10325.

• Citation: 365 F.3d 790
• Decision Date: 21 April 2004
• Docket Number: No. 02-10325.,No. 02-10340.,No. 02-10336.,02-10325.,02-10336.,02-10340.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Miguel NAVARRO VIAYRA; Manuel Alvarez Guerra, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

365 F.3d 790

UNITED STATES of America, Plaintiff-Appellant, v. Miguel NAVARRO VIAYRA; Manuel Alvarez Guerra, Defendants-Appellees.

No. 02-10325.

No. 02-10336.

No. 02-10340.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 13, 2004.

Filed April 21, 2004.

John K. Vincent, McGregor W. Scott, Thomas E. Flynn, and Laura Swartz U.S. Attorney's Office, Sacramento, California, for appellants-cross-appellees United States of America.

Quin Denvir and Caro Marks, Federal Defender, Sacramento, California, for appellees-cross-appellants Miguel Navarro Viayra and Manuel Alvarez Guerra.

Appeal from the United States District Court for the Eastern District of California; Frank C. Damrell, District Judge, Presiding. D.C. No. CR-00-00512-FCD.

Before: WALLACE, McKEOWN, and CALLAHAN, Circuit Judges.

McKEOWN, Circuit Judge:

The question of first impression that we must resolve is whether, in a criminal case, a district court may grant a new trial absent a request by the defendant. Specifically, may a court sua sponte convert a Federal Rule of Criminal Procedure 29 motion for judgment of acquittal into a Federal Rule of Criminal Procedure 33 new trial motion? The answer to this question lies in the text of the rules and the accompanying Advisory Committee Notes, which pointedly distinguish the two rules and the role of the court and of counsel. We conclude that a district court lacks authority to grant a new trial on its own motion.

I. BACKGROUND

This case arises out of drug and firearm charges in connection with a marijuana cultivation site in the Mendocino National Forest. At trial, both Miguel Viayra and Manuel Guerra argued that they were forced to work at the marijuana cultivation site and had no reasonable opportunity to escape.

Counsel for both defendants made Rule 29 motions for acquittal at the close of the government's case and again at the close of evidence. The jury found the defendants guilty of the drug counts (one and two), and deadlocked on the gun counts (three, four, and five).

After the jury verdict, both defense attorneys orally renewed the motions for acquittal. Neither attorney made a motion for a new trial. The court directed counsel to file briefs supporting the motions and gave them several extensions of time to file. After the Rule 29 briefs were filed, the government unsuccessfully argued that the motions should be dismissed as untimely.

The court denied the motions for acquittal on counts one and two. Concluding, however, that it had the power to convert the Rule 29 motions into motions for a new trial under Rule 33, the court ordered a new trial on those counts. The government immediately filed a notice of appeal from that order. After the appeal was filed, defense counsel asked the court to consider the outstanding Rule 29 motions on the gun charges (counts three, four, and five) and also filed a cross-appeal challenging the court's failure to rule on their Rule 29 motions on the gun counts. The district court declined to rule on the Rule 29 motions on the gun counts, taking the position that the cross-appeals had divested it of jurisdiction.

II. DISCUSSION

A. TIMELINESS OF MOTION FOR JUDGMENT OF ACQUITTAL

As a preliminary matter, we address the government's argument that the defendants' motions for judgment of acquittal were untimely under Rule 29(c)(1) and invalid because Rule 47 requires motions to be made in writing.

Motions for judgment of acquittal must be made within seven days after the verdict or the discharge of the jury or "within any other time the court sets during the 7-day period." Fed.R.Crim.P. 29(c)(1). Here, the defense made oral motions immediately following the guilty verdict. Viayra's counsel stated, "I'm renewing my Rule 29 motion .... as to every count," and Guerra's attorney joined the motion. The court acknowledged the motions and set a briefing schedule. Counsel and the court engaged in considerable back and forth on the briefing schedule in the months following the verdict.

The government maintains that because the defendants did not adhere to the court's briefing deadlines, the motions were perforce untimely. This argument ignores the difference between the oral motions and the follow-up briefing. The motions were timely when made after the verdict, as the district court acknowledged on several occasions. For example, in response to defense counsel's request for more time to file briefs in support of the motion, the court said: "I can give you more time. You made your motion in court." In two separate orders, the district court confirmed that the motions were made after the verdict. In its order granting a new trial, the district court stated: "The defendants renewed their Rule 29 motions after the jury returned its verdict." In an order issued in response to the government's motion to dismiss Viayra's Rule 29 motion as untimely, the district court explained: "Viayra made a Rule 29 motion immediately after the jury returned a verdict. The parties were then allowed time to brief that motion...."

Stretching Rule 47 to the extreme, the government contends that the oral motions had to be in writing because they were not made during a trial or hearing. Rule 47(b) provides otherwise: "A motion — except when made during a trial or hearing — must be in writing, unless the court permits the party to make the motion by other means." Fed.R.Crim.P. 47(b). Rule 47 could not be any clearer: even outside the context of a trial or hearing, a district court may accept motions made "by other means" (i.e., orally). Id. In addition, oral motions made immediately after a verdict is announced surely constitute motions "made during a trial or a hearing."

In common sense terms, the motions were part of the trial process. In the nano-second between the verdict and the motions, the trial did not end. Even if a hypertechnical view leads to the conclusion that the trial had ended, then surely a post-trial hearing had begun. Either way, a written motion was not required.

The realities of trial practice support this view. A motion for judgment of acquittal is often made orally following the verdict. Because such a motion is required to preserve certain arguments on appeal, trial counsel is understandably anxious to get the motion on the record. The fact that an oral motion is often followed by more detailed briefing does not change the fact that the motion was made. The oral motions were both timely and sufficient.

Finally, the government asks us to invalidate the motions because the grounds were not explicitly stated in the oral motions, as required by Rule 47. Fed.R.Crim.P. 47(b) ("motion must state grounds on which it is based"). Several of our sister circuits have held that Rule 29 motions for acquittal do not need to state the grounds upon which they are based because "the very nature of such motions is to question the sufficiency of the evidence to support a conviction." United States v. Gjurashaj, 706 F.2d 395, 399 (2d Cir.1983); see also United States v. Dandy, 998 F.2d 1344, 1356 (6th Cir.1993); United States v. Spinner, 152 F.3d 950, 955 (D.C.Cir.1998); 2A Charles Alan Wright, Federal Practice and Procedure § 466 (3d ed. 2000) ("Specificity is not required by Rule 29 or by Rule 47 [for motions for judgment of acquittal]."). We agree with this analysis and further note that the defendants' motions were predicated on grounds articulated in the previous motions.

B. RELATIONSHIP BETWEEN Rule 29 and Rule 33

The government challenges the district court's authority to convert a motion for acquittal into a motion for a new trial, bringing before us an issue of first impression. We review de novo the district court's interpretation of the Federal Rules of Criminal Procedure. United States v. Carper, 24 F.3d 1157, 1158-59 (9th Cir.1994).

The district court denied the motion for acquittal on the ground that "apply [ing] the Rule 29 standard and view[ing] the evidence in the light most favorable to the government, the defendants' motions would not be granted." The court found, however, that the denial would result in a "substantial miscarriage of justice" and thus sua sponte converted the Rule 29 motions to Rule 33 motions and granted a new trial. The court reasoned that it had authority to grant a new trial because the rules do not explicitly preclude it from doing so. The district court's logic and sentiment are understandable, especially in light of its evaluation of the evidence. Nonetheless, we conclude that the language and structure of the rules preclude such a sua sponte conversion.

We first look at Rule 29 to see if it sheds any light on the issue. Rule 29 speaks in terms of defense counsel's motion for judgment of acquittal after the jury verdict or discharge: "[a] defendant may move...." Fed.R.Crim.P. 29(c)(1). The only reference to a new trial in Rule 29 relates to the grant of a new trial if the court enters a judgment of acquittal that is later vacated or reversed. Rule 29(d)(1) provides:

If the court enters a judgment of acquittal after a guilty verdict, the court must also conditionally determine whether any motion for a new trial should be granted if the judgment of acquittal is later vacated or reversed. The court must specify the reasons for that determination.

Although the rule is silent as to the conversion of a Rule 29 motion into a new trial motion, absent the grant of acquittal, the Advisory Committee notes clarify that the 1966 Amendments were intended to foreclose such authority. The relevant portion of the Committee Notes states:

References in the original rule to the motion for a new trial as an alternate to the motion for judgment of acquittal and to the power of the court to order a new trial have been eliminated. Motions for new trial are adequately covered in Rule 33. Also the original wording is subject to the interpretation that a motion for judgment of acquittal gives the court power to order a new trial even...