925 F. 2d 1472 - United States v. Soto

MEMORANDUM**

Heriberto Felix Soto appeals the district court's denial of his motion for a new trial made pursuant to Fed.R.Crim.P. 33. Soto contends a new trial is warranted on the grounds of his trial counsel's alleged intoxication at trial, the consequent failure of counsel to allow Soto to exercise his Fifth Amendment right to testify, and on the basis of newly discovered evidence. We affirm.

Fed.R.Crim.P. 33 permits the granting of a new trial "in the interest of justice." Rule 33 requires that a motion for a new trial based on any grounds other than a claim of newly discovered evidence "be made within 7 days after verdict or finding of guilty or within such further time as the court may fix during the 7-day period." A motion based on newly discovered evidence, however, may be made within two years after final judgment of the case. Fed.R.Crim.P. 33.

In this case, the jury returned its guilty verdict on April 10, 1989. Soto's motion for a new trial was not filed, however, until July 17, 1989. Therefore, to the extent that Soto's motion relied on grounds of ineffective assistance of counsel, it was untimely and properly denied. Soto's arguments to the contrary are without merit. See United States v. Endicott, 869 F.2d 452, 457 (9th Cir.1989) (Rule 33's "seven-day statute of limitations is jurisdictional").

Soto's claim of newly discovered evidence was, however, filed within the two-year limitations period. We nevertheless conclude that Soto has failed to meet his " 'significant burden' to show that the district court abused its discretion in denying a new trial." Id. at 454 (citation omitted).

Soto must meet the following requirements in seeking a new trial on the basis of newly discovered evidence:

(1) It must appear from the motion that the evidence relied on is, in fact, newly discovered, i.e., discovered after the trial; (2) the motion must allege facts from which the court may infer diligence on the part of the movant; (3) the evidence relied on must not be merely cumulative or impeaching; (4) must be material to the issues involved; and (5) must be such as, on a new trial, would probably produce an acquittal.

United States v. Krasny, 607 F.2d 840, 842-43 (9th Cir.1979), cert. denied, 445 U.S. 942 (1980) (citations omitted) (emphasis in original).

Here, we find that Soto failed to satisfy his burden of meeting, at a minimum, the first two requirements set forth in Krasny. Soto failed to indicate why the proffered testimony of Rodriguez or Haas could not have been discovered prior to the close of trial. Instead, Soto merely asserts that "[t]his evidence was not discovered until appellant had retained new counsel, following his conviction in the instant case." We find these circumstances insufficient to allow us to "infer diligence" on Soto's part in showing that this evidence was "newly" discovered after trial. See id. at 843.

As a result, we need not determine whether Soto has properly met the remaining Krasny requirements. Accordingly, the district court's denial of Soto's motion for a new trial is affirmed.

AFFIRMED.