Rule 33 Among Post-Trial Motions

Rule 33 Among Post-Trial Motions

Rule 33 is one of three motions a convicted defendant can bring in the trial court after the verdict. The other two are Rule 29, the motion for a judgment of acquittal, and Rule 34, the motion to arrest judgment.¹ Defense lawyers often pair the first two in one filing styled as a motion for acquittal or, in the alternative, a new trial, and the similarity of the names invites students to treat the motions as interchangeable.² A combined filing still presents separate questions, because each rule targets a different kind of defect and leads to a different result. The task on an exam is to identify what the defendant actually complains of and match that complaint to the rule built for it.

Rule 29 asks whether the evidence was legally sufficient: viewed in the light most favorable to the prosecution, could a rational jury find guilt beyond a reasonable doubt?³ If the answer is no, the government failed to prove its case after a full opportunity to do so, which is why a grant enters judgment for the defendant and the government may not try the defendant again.⁴ Rule 33 asks a broader question, whether the interest of justice requires a new trial, and courts agree that it gives them wider room than Rule 29 allows.⁵ The defect there may be a trial error or a verdict the evidence cannot comfortably support, and neither means the government's case was legally empty, so the fitting remedy is a second trial rather than a final acquittal. Rule 34 is the narrowest of the three. The court must arrest judgment if it lacks jurisdiction of the charged offense, because a court with no power to adjudicate the case cannot enter a valid conviction, however fair or well supported the trial was.⁶

The three motions also share a procedural consequence that makes timeliness matter. A timely motion under Rule 29, 33, or 34 suspends the finality of the judgment, and the time for noticing an appeal then runs from the order granting or denying the motion.⁷ The trial judge thus gets the first chance to correct the problem before an appellate court reviews the case. The motion must itself be timely to have that effect, since otherwise a defendant whose appeal clock had expired could restart it by filing a stale motion.⁸ The usual deadline for all three motions is fourteen days, with one exception: a Rule 33 motion grounded on newly discovered evidence has three years, a distinction developed later in this chapter.⁹ The next two parts take Rule 33's neighbors in turn, beginning with Rule 29, the motion most often confused with Rule 33, and then Rule 34, which reaches only jurisdictional defects.

New Trial Versus Acquittal

Having separated the three post-trial motions by the defect each targets, this part follows the two most easily confused, Rule 29 and Rule 33, from standard to consequence. A motion for judgment of acquittal under Rule 29 asks the judge to decide, as a matter of law, whether the government's proof could support a conviction at all, so the judge views the evidence in the light most favorable to the prosecution and asks whether a rational jury could find guilt beyond a reasonable doubt.¹¹ That vantage point keeps the judge from discounting a witness the jury was entitled to believe and from drawing inferences against the government. The motion therefore succeeds only when the proof has a gap that no reasonable reading can fill, and that narrow test is matched to a remedy that is hard to undo.

What follows a grant depends on the moment it comes. When the judge enters an acquittal before the case goes to the jury, jeopardy has already attached, so the government can neither appeal nor try the defendant again, and the prosecution ends.¹² When the defendant moves after a guilty verdict and wins, the government may appeal even though jeopardy has attached, because the prosecutor asks the appellate court only to reverse the judge's ruling and reinstate the jury's verdict.¹³ A successful appeal produces no second trial, so the double jeopardy bar, which exists to keep a defendant from being tried twice for the same offense, has nothing to operate on. The two moments differ in whether a verdict exists to restore: before submission there is none, so success on appeal would mean putting the defendant through a further trial, while after the verdict the only thing at stake is the jury's completed judgment.

Rule 33 relief has a different shape, because a grant does not end the prosecution. The court vacates the judgment and grants a new trial, so the case continues before a new jury.¹⁴ That milder consequence explains why the rule can hand the judge more tools: the court is not obliged to view the evidence favorably to the verdict and may weigh the evidence and assess the witnesses' credibility for itself, which makes the power to order a new trial much broader than the power to acquit.¹⁵ Federal civil practice supplies an analogy, though it is not the text of Rule 33: a judge ruling on a civil new-trial motion acts in part as an additional juror, and the power is defended on the ground that a new jury, not the judge, will reconsider the case if the motion is granted.¹⁶ A judge who grants a Rule 33 motion thus substitutes no personal verdict for the jury's and only returns the question to a fresh panel. Broader authority still does not make the motion easy to win, since deference to the jury and the interest in finality make courts slow to grant either motion.¹⁷

In United States v. Chinasa the defendant moved for acquittal under Rule 29(c) or, alternatively, a new trial under Rule 33, arguing that the court failed to give specific jury instructions, that the evidence was insufficient on every charge, and that the admission of certain exhibits was prejudicial.¹⁸ The motion did not say which argument belonged to which rule, so the court sorted them itself, placing the instruction and exhibit complaints under Rule 33 and the insufficiency complaint under Rule 29(c).¹⁹ The court found the sufficiency argument unpersuasive, and its reasoning shows what Rule 29 asks: a co-defendant testified that he and Chinasa had agreed on the language to use in emails and service requests to obtain replacement parts, and a Cisco investigator corroborated the account by describing how often both men used that language, which together allowed a jury to conclude that Chinasa knowingly entered a conspiracy to defraud.²⁰ That analysis only measured the government's proof against the verdict. The instruction and exhibit arguments sit on the other side of the line because they say nothing about how much evidence the government offered. They ask whether the trial was conducted well enough for the judgment to stand, and a defendant who wins on that ground receives another trial and not an acquittal. Students lose this issue when they let the caption on the motion pick the rule; the rule follows what the defendant actually complains of.

The two motions travel together for a reason beyond the shared label. A Rule 33 motion that does not rest on newly discovered evidence has the same fourteen-day deadline as a Rule 29 motion, so one filing can carry both, and the full deadline rules appear later in this chapter.²¹ Rule 29(d) then ties the motions together once a judge grants acquittal after a guilty verdict: the court must also rule conditionally on any new-trial motion, specifying its grounds, so that the appellate court can review both rulings in one consolidated appeal if the acquittal is challenged.²² The requirement serves judicial economy, and United States v. Kellington shows what omitting it costs. The district court there granted an acquittal without the conditional ruling, and when the case returned on remand the Ninth Circuit held that the district court could reinstate and decide the new-trial motion, declining to treat the defendant as having forfeited it by failing to point out the court's omission.²³

Arresting Judgment

Rule 34 is the third and narrowest of the post-trial motions, and it asks a different kind of question from Rules 29 and 33. Those rules examine the evidence and the fairness of the trial, while Rule 34 examines only whether the court had power over the charged offense in the first place. The text directs that, on the defendant's motion or on its own, the court must arrest judgment if it does not have jurisdiction of the charged offense, and it requires the defendant to move within 14 days after the court accepts a verdict or finding of guilty, or after a plea of guilty or nolo contendere.²⁸ To arrest a judgment is to stop the conviction from taking effect, so a grant leaves no valid judgment standing. The word must also matters, because it contrasts with Rule 33, which leaves a new trial to the court's discretion.²⁹ Once a true jurisdictional defect appears, the court has no choice about the result, and it may act even if no one has filed a motion.

The rule's narrowness comes from the meaning given to jurisdiction. The Supreme Court has defined it in this setting as the courts' statutory or constitutional power to adjudicate the case.³⁰ A court's power over a case comes from the statutes and constitutional provisions that authorize it to hear that kind of case. A conviction entered without that power has no valid foundation, however fair the trial was and however strong the evidence. Defects that leave the court's power intact are a different matter, because the court could validly have decided the case and the defect can be raised through the other remedies the rules provide. Keeping Rule 34 limited to the absence of power is what makes the motion rarely used.

The Court has drawn the line between a lack of jurisdiction and defects that are merely non-jurisdictional. Two examples are a failure to state an offense properly in the indictment and a failure to abide by Rule 33's time limits on a motion for a new trial.³¹ Neither goes to the court's authority to hear the case, so neither can support a motion to arrest judgment. That limit is easy to overlook when a defendant has missed another deadline, since a late Rule 33 motion cannot be rescued by relabeling it as a Rule 34 motion.

Rule 34(b)'s 14-day limit sits uneasily with two other principles. Rule 12(b)(2) lets a jurisdictional challenge be made at any time while the case is pending, and subject-matter jurisdiction can never be waived or forfeited and may be raised for the first time on appeal.³² In the rare case where the court truly lacked jurisdiction, the 14-day limit is unlikely to stop it from arresting the judgment. On an exam, Rule 34 is the right answer only when the facts describe a genuine absence of power over the charged offense. A complaint about a pleading flaw, thin evidence, or trial error belongs under another rule, and a stem that offers non-jurisdictional defects as grounds for arresting judgment is testing exactly this boundary.