U.S. v. Owen
| Decision Date | 09 January 2009 |
| Docket Number | Docket No. 07-4966-cr. |
| Citation | 553 F.3d 161 |
| Parties | UNITED STATES of America, Appellee, v. Lance Edgar OWEN, Defendant-Appellant, Paul Samuels, also known as Pablo, and Mark Baroody, Defendants. |
| Court | U.S. Court of Appeals — Second Circuit |
Michael W. Martin (James A. Cohen, on the brief) Lincoln Square Legal Services, Inc., New York, NY, for Defendant-Appellant.
Andrew J. Fish, Assistant United States Attorney (Michael J. Garcia, United States Attorney for the Southern District of New York, and William J. Harrington, Assistant United States Attorney, on the brief), Office of the United States Attorney for the Southern District of New York, New York, NY, for Appellee.
Before: FEINBERG, CABRANES, and HALL, Circuit Judges.
We consider procedural questions arising from the relatively common phenomenon of new appellate counsel replacing trial counsel while certain motions remain pending in the trial court. In this case, defendant Lance Edgar Owen appeals from a judgment of conviction, entered on November 29, 2005 by the United States District Court for the Southern District of New York (Robert P. Patterson, Judge), on two counts of distribution and possession of marijuana and conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and 846, and sentencing Owen principally to 60 months' incarceration. However, on February 3, 2006, the District Court granted Owen a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure on the basis of newly discovered evidence, and Owen was released on bond soon thereafter. Owen remains released on bond today. One week after ordering a new trial, the District Court appointed new counsel pursuant to the Criminal Justice Act. See 18 U.S.C. § 3006A(c) ().
The government appealed the Rule 33 order granting a new trial. Another panel of our Court reversed because the evidence in question—an allegedly exculpatory statement made at sentencing by codefendant Paul Samuels—was not, by definition, "newly discovered."1 United States v. Owen, 500 F.3d 83, 89-90 (2d Cir.2007). Our opinion noted in a footnote, however, that the absence of a motion to sever Owen's trial from Samuels' trial "manifest[s] a lack of diligence [on trial counsel's part] in procuring the admission of Samuels' testimony." Id. at 91 n. 5. A full description of the underlying facts and procedural history of this case is contained in our earlier opinion. See id. at 84-87.2
Although the District Court based its Rule 33 decision solely on newly discovered evidence, Owen's handwritten Rule 33 motion for a new trial—submitted pro se before the assignment of new counsel— also relied on alternate grounds, including ineffective assistance of counsel. After our Court filed its opinion but before the issuance of the mandate, the District Court held a preliminary hearing on September 20, 2007 regarding the other grounds for relief pressed in Owen's Rule 33 motion— namely, ineffective assistance of counsel— and on his new claim of prosecutorial misconduct.3 The Court ordered additional briefing on those claims. According to a revised briefing schedule, which the District Court docketed on October 10, 2007, Owen was required to submit a brief by October 25, and the government was required to respond by November 8.
On October 31, 2007, after Owen submitted his brief and before the government responded, the mandate from the Court of Appeals was entered in the District Court. In an effort to preserve his right to appeal the November 29, 2005 judgment of conviction, Owen filed a "protective" notice of appeal on November 5, 2007, which interrupted the District Court's briefing schedule. See Fed. R.App. P. 4(b)(1)(A)(i) ().4 Owen's appellate counsel also submitted a declaration, dated November 5, 2007, in support of a motion to remand the matter to the District Court so that the proceedings could resume and the District Court could hold a previously-scheduled hearing set for November 19. Owen did not request that this Court hold his appeal in abeyance pending the resolution of the proceedings in the District Court. The government submitted an affirmation in opposition to this motion on November 20, 2007, arguing that Owen's collateral attacks on the judgment could and should be resolved on direct appeal without additional fact-finding, or, in the alternative, should be brought in a habeas corpus proceeding pursuant to 28 U.S.C. § 2255. Neither the submissions from Owen nor the submission from the government indicated that the interrupted proceedings in the District Court arose from Owen's Rule 33 motion. A motions panel of our Court denied Owen's motion to remand in an order docketed on February 5, 2008, and the parties proceeded to submit briefs on the merits of the appeal.
Upon our review of the briefs and the record on appeal, we conclude that Owen's November 5, 2007 notice of appeal has not yet become effective. When the mandate of this Court issued on October 31, 2007, the District Court's jurisdiction over the remaining claims in Owen's Rule 33 motion was officially restored. See United States v. Rivera, 844 F.2d 916, 921 (2d Cir.1988) (); Ostrer v. United States, 584 F.2d 594, 598 (2d Cir.1978) (). When Owen filed his "protective" notice of appeal on November 5, 2007, the remaining claims in Owen's Rule 33 motion remained pending in the District Court.
Pursuant to Rule 4(b)(3)(B) of the Federal Rules of Appellate Procedure,
[a] notice of appeal filed after the [district] court announces a decision, sentence, or order—but before it disposes of [a motion for a new trial under Rule 33]—becomes effective upon the later of the following: (i) the entry of the order disposing of the last such remaining motion; or (ii) the entry of the judgment of conviction.
Where, as here, the District Court's order that granted a Rule 33 motion on one of the grounds presented has been vacated solely on that ground—and the other grounds have not been addressed—a notice of appeal is not "effective." Our prior decision cannot be construed as having "disposed" of Owen's Rule 33 motion because, while we reversed the District Court's grant of that motion, we did so only insofar as it was based on newly discovered evidence. Like the District Court, we did not reach the other grounds for relief pressed by Owen. Indeed, we clarified in our opinion that "we do not ... preclude the parties from pursuing [a Brady claim] ... on remand to the district court." United States v. Owen, 500 F.3d 83, 91 n. 4 (2d Cir.2007). Our opinion did not, however, provide any guidance to the District Court as to how it should proceed on remand. After our decision, counsel for Owen returned to the District Court and requested a briefing schedule "to flesh out the remaining issues in Mr. Owen's motion." The District Court granted that request and established a briefing schedule as set forth above. We conclude from this sequence of events that the issues raised by Owen in his Rule 33 motion, as well as the Brady claim, are still before the District Court—interrupted only by our denial of Owen's motion to remand and subsequent consideration of this appeal.
In the normal course, a "protective" notice of appeal should be held in abeyance pending the resolution of a Rule 33 motion by the District Court.5 See, e.g., In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 157, at 160 n. 3, 2008 WL 5517638, at *2 n. 3, 2008 U.S.App. LEXIS 24057, at *6 n. 3 (2d Cir.2008) ( ; United States v. Jackson, 950 F.2d 633, 635 (10th Cir. 1991) () ( earlier version of Rule 4 (footnote omitted)). The appeal will then "become[ ] effective upon ... the entry of the order disposing of the last ... remaining motion," Fed R.App. P. 4(b)(3)(B)(i), including a motion "for a new trial under Rule 33," Fed R.App. P. 4(b)(3)(A)(ii).
We see no basis to deviate from that practice here. As the interrupted proceedings in the District Court make clear, the...
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