U.S. v. Ristovski

• Decision Date: 04 December 2002
• Docket Number: No. 01-1747.,01-1747.
• Citation: 312 F.3d 206
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ljupco RISTOVSKI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

312 F.3d 206

UNITED STATES of America, Plaintiff-Appellee, v. Ljupco RISTOVSKI, Defendant-Appellant.

No. 01-1747.

United States Court of Appeals, Sixth Circuit.

Argued: September 12, 2002.

Decided and Filed: December 4, 2002.

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Ross I. MacKenzie (argued and briefed), Assistant United States Attorney, Detroit, MI, for Plaintiff-Appellee.

Harold Z. Gurewitz (argued and briefed), Gurewitz & Raben, Detroit, MI, for Defendant-Appellant.

Before BOGGS and COLE, Circuit Judges; BELL, Chief District Judge.^*

OPINION

ROBERT HOLMES BELL, District Judge.

Defendant-Appellant Ljupco Ristovski appeals the district court order denying his motion for new trial filed under FED. R.CRIM.P. 33.

Ristovski was convicted by a jury on October 15, 1997, of two counts of subscribing false corporate tax returns in violation of 26 U.S.C. § 7206(1) and eight counts of submitting false documents to the Internal Revenue Service in violation of 26 U.S.C. § 7207. Ristovski was sentenced on June 16, 1998, to 18 months imprisonment. His conviction and sentence were affirmed on April 18, 2000. United States v. Ristovski, Nos. 98-1749 & 98-1868 (6th Cir. Apr. 18, 2000). His petition for writ of certiorari was denied on December 4, 2000, and the mandate was issued by the Court of Appeals on December 10, 2000.

On March 19, 2001, Ristovski filed a motion for new trial on the basis of newly discovered evidence. The district court, in an oral opinion, denied the motion for lack of jurisdiction because it was untimely. The district court noted that even if it did have jurisdiction, it would deny the motion on the merits because the evidence could have been discovered earlier and was cumulative. The written order denying Ristovski's motion for new trial was entered on June 4, 2001.

Motions for new trial are governed by Rule 33 of the Federal Rules of Criminal Procedure. Prior to December 1, 1998 Rule 33 required that motions for new trial based on newly discovered evidence be brought within two years after final judgment.¹ Ristovski's motion for new trial, which was filed on March 19, 2001, would have been timely under the Rule 33 in effect at the time the offense was committed because it was filed within two years after final judgment. Amendments to Rule 33 were promulgated on April 24, 1998, and went into effect on December 1, 1998. Rule 33 as amended requires that motions for new trial based on newly discovered evidence be brought within three years after the verdict or finding of guilty.² The purpose of the amendments to Rule 33 was to bring uniformity in the manner in which the time period for new trial motions based on newly discovered evidence was calculated.³ Ristovski's motion for new trial is untimely under the amended Rule 33 because it was filed approximately five months after the three-year period measured from the date of his verdict.

Ristovski's first argument on appeal is that the district court's conclusion that his motion for new trial was untimely under Rule 33 as amended in 1998 violates the Ex Post Facto Clause of the United States Constitution.⁴ The timeliness of Appellant's motion for new trial is a threshold question because if a motion for new trial is untimely, the court lacks jurisdiction to consider it on the merits. United States v. Koehler, 24 F.3d 867, 869 (6th Cir.1994) (citing United States v. Smith, 331 U.S. 469, 475-76, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947)). See also United States v. Moreno, 181 F.3d 206, 212 (2d Cir.1999) (court lacks jurisdiction to consider untimely motion for new trial) (citing cases). Whether the district court's application of amended Rule 33 was a violation of the Ex Post Facto Clause is a legal question we review de novo. See United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir.2000) ("A defendant's claim that his or her sentence was imposed in violation of the ex post facto clause presents a question of law, and we review questions of law de novo" (quoting United States v. Logal, 106 F.3d 1547, 1550-51 (11th Cir.1997))).

The Ex Post Facto Clause forbids Congress to enact any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (footnote omitted) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1866)). "[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Weaver, 450 U.S. at 29, 101 S.Ct. 960 (footnote omitted). See also Kellogg v. Shoemaker, 46 F.3d 503, 509 (6th Cir.1995).

With respect to the first element, retrospective application, "[t]he critical question is whether the law changes the legal consequences of acts completed before its effective date." Weaver, 450 U.S. at 31, 101 S.Ct. 960. "The focus in determining whether a new law violates the ex post facto clause is the time the offense was committed." Kellogg, 46 F.3d at 509 (citing Weaver, 450 U.S. at 31, 101 S.Ct. 960). In this case the offenses were committed in 1990, 1991, and 1997. Rule 33 was amended in December 1998. The district court's application of the time limitation in amended Rule 33 was retrospective because it changed the criminal review procedure for offenses occurring before the date of its enactment.

Retrospective application alone, however, is not enough to make out an ex post facto violation. The Ex Post Facto Clause does not guarantee that a criminal defendant's case will be governed in all respects by the law in force when the crime was committed. Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). "[T]he constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation, see Malloy v. South Carolina, 237 U.S. 180, 183, 35 S.Ct. 507, 59 L.Ed. 905 (1915), and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance." Dobbert, 432 U.S. at 293, 97 S.Ct. 2290 (quoting Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 70 L.Ed. 216 (1925)). Thus, no ex post facto violation occurs if a change does not alter "substantial personal rights," but merely changes "modes of procedure which do not affect matters of substance." Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (quoting Dobbert, 432 U.S. at 293, 97 S.Ct. 2290). "Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto." Dobbert, 432 U.S. at 293, 97 S.Ct. 2290. See also Landgraf v. USI Film Prods., 511 U.S. 244, 275 n. 28, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) ("While we have strictly construed the Ex Post Facto Clause to prohibit application of new statutes creating or increasing punishments after the fact, we have upheld intervening procedural changes even if application of the new rule operated to a defendant's disadvantage in the particular case."). On the other hand, a change in the law that alters a substantial right can be ex post facto "even if the statute takes a seemingly procedural form." Weaver, 450 U.S. at 29 n. 12, 101 S.Ct. 960 (citing Thompson v. Utah, 170 U.S. 343, 354-55, 18 S.Ct. 620, 42 L.Ed. 1061 (1898); Kring v. Missouri, 107 U.S. 221, 232, 2 S.Ct. 443, 27 L.Ed. 506 (1883)).

The Supreme Court has recognized that the distinction between substance and procedure might sometimes prove elusive. Miller, 482 U.S. at 433, 107 S.Ct. 2446. The general rule that has emerged from the case law, however, is that a change is procedural, and does not affect a substantial right if the change does "not increase the punishment nor change the ingredients of the offense or the ultimate facts necessary to establish guilt." Weaver, 450 U.S. at 31 n. 12, 101 S.Ct. 960 (quoting Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 28 L.Ed. 262 (1884)). Thus, in Weaver the Court found that Florida's revised good-time provision violated the Ex Post Facto Clause because it constricted an inmate's opportunity to earn early release, and thereby made "more onerous the punishment for crimes committed before its enactment." 450 U.S. at 35-36, 101 S.Ct. 960. In Miller the Court held that because a change in the sentencing guidelines after the offense was committed increased the number of primary offense points assigned to sexual offenses by 20%, the change could not be deemed procedural because it "directly and adversely" affected the sentence the petitioner would receive. Miller, 482 U.S. at 433-35, 107 S.Ct. 2446. In Dobbert, on the other hand, the Court rejected the petitioner's argument that changes in the Florida death penalty statute posed an ex post facto violation: "[T]he change in the statute was clearly procedural. The new statute simply altered the methods employed in determining whether the death penalty was to be imposed; there was no change in the quantum of punishment attached to the crime." Id. at 293-94, 97 S.Ct. 2290.⁵ The Dobbert Court compared the case before it to Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), in which the Court considered a change in the rules of evidence between the date of the offense and the date of the trial: "Even though this change in the law obviously had a detrimental impact upon the defendant, the Court found that the law was not ex post facto because it neither made criminal a theretofore innocent act, nor aggravated a crime previously committed, nor provided greater punishment, nor changed the proof necessary to convict." Dobbert, 432 U.S. at 293, 97 S.Ct. 2290 (citing Hopt, 110 U.S. at 589, 4 S.Ct. 202).

We analyze Appellant's claim that the retroactive application of amended Rule 33 violated the Ex Post Facto Clause with these principles in mind.

The question of whether the retroactive...