The opinion of the court was delivered by: John R. Padova, J.
AND NOW, this 18th day of November, 2008, upon consideration of Defendant's Post-Verdict Motion (Docket No. 64) and the Government's response thereto (Docket No. 68), IT IS HEREBY ORDERED that Defendant's Motion is DENIED.
On September 4, 2007, Defendant was convicted by a jury of attempted interference with interstate commerce by robbery ("Hobbs Act robbery") of Gomez Grocery in Philadelphia, Pennsylvania, on July 26, 2006, in violation of 18 U.S.C. § 1951(a) (Count I); carrying and using a firearm during and in relation to a crime of violence on July 26, 2006, in violation of 18 U.S.C. § 924(c) (Count II); and felon in possession of a firearm on July 26, 2006, in violation of 18 U.S.C. § 922(g)(1) (Count III). Defendant has moved for a new trial on all three counts pursuant to Rule 33 of the Federal Rules of Criminal Procedure.
The Federal Rules of Criminal Procedure permit a district court, "[u]pon the defendant's motion . . . [to] vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). We consider a Rule 33 motion for a new trial based on the weight of the evidence and "can order a new trial on the ground that the jury's verdict is contrary to the weight of the evidence only if [we] 'believe that there is a serious danger that a miscarriage of justice has occurred-that is, that an innocent person has been convicted.'" United States v. Brennan, 326 F.3d 176, 188 (3d Cir. 2003) (quoting United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002)). "Unlike an insufficiency of the evidence claim, when a district court evaluates a Rule 33 motion it does not view the evidence favorably to the Government, but instead exercises its own judgment in assessing the Government's case." Id. (quotations omitted).
Defendant seeks relief on the following four grounds: (1) he could not be convicted of attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), because the Government failed to prove he intended to affect interstate commerce; (2) the jury instructions were inadequate/confusing because they did not address the specific intent to interfere with interstate commerce; (3) there was a variance between the charge in the indictment and the evidence adduced at trial/the verdict; and (4) the evidence at trial was insufficient to establish that his actions affected interstate commerce.*fn1
A. Timeliness of Defendant's Motion
Before reaching the merits of Defendant's Motion, we address the Government's argument that Defendant's Motion is both time- and procedure-barred by the Federal Rules of Criminal Procedure. As noted above, the Rules permit us, "[u]pon the defendant's motion . . . [to] vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). However, motions like the instant one that are not grounded on newly discovered evidence "must be filed within 7 days after the verdict or finding of guilty." Id. Rule 33(b)(2). While this time limit is not jurisdictional per se, see United States v. Eberhart, 546 U.S. 12, 13 (2005) (per curiam), it is an "inflexible claim-processing rule." Id. (quoting Kontrick v. Ryan, 540 U.S. 443, 456 (2004)). Nevertheless, the Federal Rules do permit us to extend a filing deadline "after the time expires if the party failed to act because of excusable neglect." Fed. R. Crim. P. 45(b)(1)(B); see also United States v. Figueroa, Crim No. 00-94, 2007 WL 2345283, at *1 (E.D. Pa. Aug. 15, 2007) (holding that Rule 45(b)(1)(B) applies to a Rule 33 motion).
On September 12, 2007, Defendant filed a "Motion to Preserve ESR Audiotapes for New Trial." In that motion, Defendant argued that the translation of witness testimony provided at trial was inaccurate and, on that basis, also requested a new trial pursuant to Federal Rule of Criminal Procedure 33. On October 15, 2007, we dismissed the motion without prejudice.*fn2 (10/15/07 Order.) We indicated in our Order that Defendant could re-file his motion on or before November 15, 2007, and directed him to comply with Local Rule of Criminal Procedure 47.1.*fn3 (Id.) Defendant neither re-filed his motion nor requested an extension of the deadline for re-filing.
However, soon after the deadline for re-filing had passed, Defendant's sentencing hearing was repeatedly rescheduled and new counsel was appointed to the defend the case. (Docket Nos. 44, 45, 46, 47, 50, 51, 53, 54, 60, 62.) New counsel did not receive transcripts from the trial until May 5, 2008. (5/5/08 N.T. at 26.) On August 12, 2008, Defendant filed the instant Post-Verdict Motion. (Docket No. 64.) Although Defendant does not explicitly assert excusable neglect in the instant Motion, we find that he clearly intended to challenge the verdict under Rule 33-as evidenced by his timely filed motion, which we dismissed without prejudice. In spite of the delays, we find that his failure to timely file the instant motion, more likely than not, was the product of excusable neglect and will therefore determine the motion on its merits.
B. Specific Intent to Affect Interstate Commerce
Defendant first argues, generally, that he could only be convicted of attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), if the Government proved he intended to affect interstate commerce. (Mot. at 5.) Defendant argues that, by charging attempt, which at common law requires specific intent, the Indictment alleged specific intent to interfere with interstate commerce. (Id. at 5-11.) Defendant further argues that: (1) the jury instructions were inadequate/confusing because they did not address his specific intent to interfere with interstate commerce; and (2) there was a variance between the charge in the Indictment and the evidence adduced at trial/the verdict because no evidence was produced showing that he intended to affect interstate commerce. (Id. at 4-5, 13-16.)
The Hobbs Act "outlaws extortion [or robbery] which obstructs interstate commerce 'in any way or degree.'" United States v. Addonizio, 451 F.2d 49, 76 (3d Cir. 1971) (quoting Stirone v. United States, 361 U.S. 212, 215 (1960)). "'That Act speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence.'" Id. at 76-77 (quoting Stirone, 361 U.S. at 215). "It is not necessary that the purpose of the extortion [or robbery] be to affect interstate commerce, but only that one of the natural effects ...