United States District Court, W.D. Pennsylvania
R. Hornak, Chief United States District Judge
April 14, 2015, a federal grand jury returned a Second
Superseding Indictment with charges against Defendant James
Perrin and his co-defendant, Price Montgomery. (ECF No. 153.)
Among other things, the Second Superseding Indictment charged
a Conspiracy to Distribute and Possess with Intent to
Distribute One Kilogram or More of a Mixture Containing a
Detectible Amount of Heroin from April 2013 to June 2014 in
violation of 21 U.S.C. Â§ 846 at Count One, and Possession
with Intent to Distribute One Kilogram or More of a Mixture
Containing a Detectible Amount of Heroin, in violation of 21
U.S.C. Â§ 841, on or about June 8, 2014, at Count Two. (ECF
October 30, 2018, the case went to a jury trial. When the
Government's case-in-chief concluded, Defendant
Perrin's counsel made a timely oral Rule 29(a) motion for
a judgment of acquittal as to all counts pending against him.
The Court denied the motion. On November 13, 2018, the jury
returned a verdict of guilty as to all Counts. The Court
discharged the jury shortly thereafter on the same day.
February 19, 2019, the United States Probation Office filed
the Presentence Investigation Report ("PSR") in
this matter. (ECF No. 636.)
April 18, 2019, Defendant filed a Motion for a New Trial
Based on the Rowe Opinion ("Motion") (ECF
No. 658.) On the same day, Defendant filed an objection to
the PSR (ECF No. 659 (objecting to mandatory penalties and
the guideline calculation for the drug-related counts).)
Defendant filed an accompanying brief on May 2, 2019. (ECF
Motion and objection to the PSR, Defendant reasons that the
Third Circuit's recent opinion in United States v.
Rowe, 919 F.3d 752 (3d Cir. 2019) established new
precedent regarding his convictions at Counts 1 and 2,
eliminated the substantial mandatory minimum sentence
applicable in his case, and required that his Guidelines
calculation be reduced. Based on Rowe, he requests a
United States filed a response to the Motion. (ECF No. 718.)
This matter is ripe for disposition.
argues that he is entitled to a new trial on the grounds that
the Third Circuit's recent opinion in Rowe
clarified that the Government is not permitted to aggregate
weights to prove a defendant guilty of possession with intent
to distribute. Because Defendant's Motion for a New Trial
is untimely, and because Rowe does not call into
question any aspect of his conviction at Counts 1 and 2, his
Motion will be denied.
Rule of Criminal Procedure 33 governs the time period for
filing a request for a new trial. Fed. R. Crim. P. 33. Under
Rule 33(b), a defendant must file a motion for a new trial on
any grounds other than newly discovered evidence within
fourteen (14) days of a guilty verdict. See Id.
33(b). If the defendant fails to file a motion within that
timeframe, a district court may only consider the motion if
the untimeliness was due to "excusable neglect."
Id. 45(b)(1)(B); see United States v.
Campa, 459 F.3d 1121, 1154 (11th Cir. 2006) (en banc)
("A court may not consider motions for a new trial based
on any other argument than newly discovered evidence outside
the [fourteen-day] period.").
Government argues that Defendant's Motion, which was
filed over five months after the guilty verdict in his case,
is untimely and therefore cannot be considered by this Court.
Defendant does not address the timeliness issue in his
begin, Defendant's Motion does not rely on newly
discovered evidence. And "a change in the law does not
constitute newly discovered evidence for purposes of Rule
33." United States v. King,735 F.3d 1098, 1008
(9th Cir. 2013). The ...