United States District Court, M.D. Pennsylvania
May 19, 2005.
UNITED STATES OF AMERICA
FREDERICK W. MARLOWE, II.
The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge
MEMORANDUM AND ORDER
On January 12, 2005, the Marlowe Defendants were found guilty
on all counts charged in the indictment specific to them. At that
time, they were advised that they had seven days to file
post-trial motions. On January 18, 2005, counsel for Frederick
Marlowe filed a motion for an extension of time to file
post-trial motions by February 2, 2005. This motion was also
filed on behalf of co-defendant Kevin Marlowe. The motion was
unopposed by the Government.
On February 1, 2005, this court granted the motion for
extension of time to February 2, 2005.*fn1 Up to that point,
neither counsel made inquiry to the court concerning the status
of the ruling on their motion. Frederick Marlowe filed his motion
for post-trial relief on February 1, 2005. Co-defendant Kevin
Marlowe filed his motion for post-trial relief on February 2,
2005.*fn2 This memorandum and order addresses Frederick
Marlowe's post-trial motion. II. Discussion
The Government has raised the issue that post-trial relief
should be denied because the court is without jurisdiction to
entertain the motions pursuant to Federal Rule of Criminal
Procedure 33(b)(2).*fn3 This section reads as follows:
(2) Other Grounds. Any motion for a new trial
grounded on any reason other than newly discovered
evidence must be filed within 7 days after the
verdict or finding of guilty, or within such further
time as the court sets during the 7-day period.
Fed.R.Crim.P. 33(b)(2) (emphasis added). A court lacks
jurisdiction when it fails to grant an appropriate extension
within the seven-day period after the verdict, even when the
motion itself is timely. United States v. Marquez, 291 F.3d 23
27 (D.C. Cir. 2002). The only issue, however, that Defendant
Frederick Marlowe raises has been preserved on the record and can
be the subject of a direct appeal. Id. at 29. Defendant suffers
no prejudice in not having this court address his motion.
IT IS THEREFORE ORDERED THAT Defendant Frederick Marlowe's
motion for post-trial relief is DISMISSED.