U.S. v. Ugalde, s. 87-5502
| Decision Date | 29 November 1988 |
| Docket Number | 88-5514,Nos. 87-5502,s. 87-5502 |
| Citation | 861 F.2d 802 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Raymond UGALDE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Dick DeGuerin, DeGuerin & Dickson, Houston, Tex., for defendant-appellant.
Paula Offenhauser, Asst. U.S. Atty., Houston, Tex., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before THORNBERRY, RUBIN and HIGGINBOTHAM, Circuit Judges.
A jury found Raymond Ugalde guilty of five counts of conspiracy and of substantive violations of the currency transaction reporting laws. Sentenced to five concurrent three year sentences and a $3,000 fine, Ugalde filed a timely notice of appeal. Ugalde later moved for a new trial. The district court denied that motion on the ground that it was untimely. On appeal, Ugalde contends that his original convictions should be vacated on the ground that he was denied effective assistance of counsel. He also contends that his motion for new trial was timely because based on newly discovered evidence that his counsel was ineffective. We affirm the conviction and the denial of a new trial.
Ugalde's first appeal was from the judgment of conviction, filed on November 6, 1986. While that appeal was pending, Ugalde moved in district court for a new trial. He argued that his motion rested on newly discovered evidence that he was denied effective assistance of counsel at trial. In accordance with United States v. Fuentes-Lozano, 580 F.2d 724, 725-26 (5th Cir.1978), Ugalde simultaneously filed with this court a motion to remand his case to the district court to allow that court to entertain his motion for new trial. We granted Ugalde's motion to remand and dismissed his appeal without prejudice.
On November 19, 1987, the district court denied Ugalde's motion for new trial, concluding that because it was filed some eight months after the verdict it was untimely. The court noted that, under Fed.R.Crim.P. 33, motions for new trial must be filed within seven days after a guilty verdict unless the motion is based upon newly discovered evidence. The district court found that Ugalde had not offered any evidence that was newly discovered within the meaning of Rule 33.
Ugalde then moved for reconsideration of the denial of his motion for new trial. The district court denied the motion. Ugalde later filed a second notice of appeal from the district court's post-trial ruling. We granted Ugalde's motion to reinstate the appeal from his convictions, consolidating it with his appeal from the denial of his motion for new trial.
Ugalde seeks reversal of his conviction on the ground that he was denied effective assistance of counsel at trial. He also urges us to reverse the district court's order denying his motion for new trial as untimely filed. Ugalde contends that the district court erred by (1) failing to comply with this court's prior directive remanding his case to the district court; and by (2) concluding that his motion for a new trial did not rest upon newly discovered evidence.
It is settled in this circuit that a claim of ineffective assistance of counsel cannot be resolved on direct appeal when the claim has not been raised before the district court, since the district court has had no opportunity to develop the record as to the merits of the allegations. We decide such issues on direct appeal only in those rare cases where the record is sufficiently complete to enable us to fairly evaluate the merits of the claim. United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1051, 98 L.Ed.2d 1013 (1988) (citing cases). That is not the case here.
The facts underlying Ugalde's claim are not part of the trial record submitted to us on direct appeal from his convictions, and we decline to pass upon Ugalde's ineffective-assistance-of-counsel claim. We do so without prejudice to his right to raise the issue in a proper proceeding pursuant to 28 U.S.C. Sec. 2255.
We address first a threshold jurisdictional issue. The district court denied Ugalde's motion for new trial on November 19, 1987. The district court denied Ugalde's motion for reconsideration on December 14, 1987. On January 5, 1988, Ugalde moved for an extension of time to appeal the court's refusal to reconsider. The district court denied the requested extension on January 20, 1988. 1 Because Ugalde's request for extension was filed more than ten days after the district court denied reconsideration, the appeal is arguably not properly before us because late filed. See Fed.R.App.P. 4(b).
We must therefore decide whether the filing of a second notice of appeal from a motion for new trial is a jurisdictional prerequisite to this court entertaining an appeal of a district court's ruling on a new trial motion.
In United States v. Burns, 668 F.2d 855 (5th Cir.1982), we found that a second notice of appeal is not required in order for a defendant to appeal alleged errors in the district court's denial of his new trial motion. 2 We noted that a timely notice of appeal is not jurisdictional but is a "prerequisite to the exercise of jurisdiction." Id. 668 F.2d at 858, citing Sanchez v. Bd. of Regents, 625 F.2d 521, 522 n. 1 (5th Cir.1980). We then cited our previous decisions in United States v. Hersh, 415 F.2d 835, 837 (5th Cir.1969) and Richardson v. United States, 360 F.2d 366, 369 (5th Cir.1966), for the proposition that the second notice of appeal is literally a "notice" requirement, so that a second notice is not essential when the defendant has clearly communicated his intent to raise on appeal the issues in the motion for new trial, and when the government is not prejudiced thereby. Burns, 668 F.2d at 858.
In the instant case the government knew that the principle issue raised by Ugalde in both the direct appeal and the motion for new trial was his ineffective-assistance-of-counsel claim. The government had fully briefed these issues and is not prejudiced by our considering them. Ugalde's appeal from the district court's post-trial ruling on his motion for new trial is properly before this court. 3
Ugalde's first challenge to the district court's decision denying his motion for new trial is that the district court failed to comply with our directive remanding his case to the district court. Ugalde argues that this court directed the district court to conduct an evidentiary hearing on his claim of ineffective assistance of counsel.
Ugalde's argument miscontrues our prior order. We did not direct the district court to entertain the merits of Ugalde's motion for new trial, but remanded the case to permit the district court to rule on Ugalde's new trial motion. The district court did so.
Ugalde's principal challenge to the district court's ruling is that the court erred by concluding that Ugalde's motion for new trial was not based upon newly discovered evidence, and was therefore untimely filed. 4
The issue of whether evidence of ineffective assistance of counsel can be newly discovered evidence within the meaning of Rule 33 is a question of first impression in this circuit. Encompassed within this general question are two more specific issues. First, may "newly discovered evidence" consist of facts about counsel's performance which the defendant knew, but did not appreciate as legally significant, by the end of the trial? Second, may "newly discovered evidence" consist of facts about counsel's performance which the defendant did not know by the end of the trial?
Several circuits have considered the first of these two issues. Most circuits have concluded that facts about counsel's performance which the defendant knew, but did not appreciate as legally significant, are not "newly discovered" within the meaning of Rule 33. United States v. Ellison, 557 F.2d 128 (7th Cir.1977), cert. denied, 434 U.S. 965, 98 S.Ct. 504, 54 L.Ed.2d 450 (1977); United States v. Brown, 742 F.2d 363, 368 (7th Cir.1984); United States v. Dukes, 727 F.2d 34, 39 (2d Cir.1984); United States v. Lara-Hernandez, 588 F.2d 272, 275 (9th Cir.1978).
We agree. Rule 33 on its face requires that the evidence itself, not merely the legal implications of the evidence, be "newly discovered." As the Seventh Circuit observed in its Ellison decision,
We recognize that defendants unhappy with the representation they received at trial, particularly those unable to retain counsel privately as did Ellison, often will be unable to obtain a new attorney in sufficient time to permit them either to file a motion for a new trial within the seven days of verdict required by Rule 33, or else seek an extension of time for the filing of such a post-trial motion as permitted by the Rule. The practical difficulties faced by defendants seeking to raise ineffective-assistance-of-counsel claims by way of motions for a new trial, however, do not give us cause to corrupt the clear language of Rule 33. Newly discovered evidence must be newly discovered evidence. Where, as here, the facts alleged in support of a motion for a new trial were within the defendant's knowledge at the time of trial, such a motion may not be treated as one in the nature of newly discovered evidence for purposes of Rule 33. United States v. Demopoulos, 506 F.2d 1171, 1180-81 (7th Cir.1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 673 (1975).
Only the District of Columbia Circuit follows a contrary rule. In United States v. Brown, 476 F.2d 933, 935 n. 11 (D.C.Cir.1973), the court found that "evidence of the ineffectiveness of trial counsel ... brought to the attention of the court for the first time in support of [a ...
To continue reading
Request your trial
-
U.S. v. Holmes, 03-41738.
...and we subject new trial motions based on newly-discovered evidence to "an unusually stringent substantive test," United States v. Ugalde, 861 F.2d 802, 808 (5th Cir.1988). Namely, under the so-called Berry rule, a defendant is not entitled to a new trial on the basis of newly-discovered ev......
-
BNSF Ry. Co. v. Equal Emp't Opportunity Comm'n
...more fundamental than modern: an understanding that courts "must ensure that for every right there is a remedy." United States v. Ugalde , 861 F.2d 802, 810 (5th Cir. 1988) (citing Marbury v. Madison , 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803) ). "The government of the United States has......
-
United States v. Bowen, Criminal Action No. 10–204.
...who posted did so under pseudonyms chosen specifically for the very purpose of avoiding detection. Additionally, United States v. Ugalde, 861 F.2d 802 (5th Cir.1988), a case cited by the government, is easily distinguishable. In Ugalde, the defendant observed all the grounds for his motion ......
-
U.S. v. Haddock
... ... Lema, 909 F.2d 561, 565 (1st Cir.1990); United States v. Ugalde, 861 F.2d 802, 806 (5th Cir.1988), cert. denied, 490 U.S. 1097, 109 S.Ct. 2447, 104 L.Ed.2d 1002 ... § 2255. We find no basis--and defendant provides us with none--for his request that we remand the case for collateral attack on these grounds ... ...
-
Review Proceedings
...62 F.3d 641, 648 (4th Cir. 1995) (ineffective-assistance-of-counsel claim not newly discovered evidence under Rule 33); U.S. v. Ugalde, 861 F.2d 802, 806 (5th Cir. 1988) (same); U.S. v. Hall, 979 F.3d 1107, 1125 (6th Cir. 2020) (ineffective-assistance-of-counsel claim not newly discovered e......