United States District Court, Eastern District of Michigan, Southern Division
ORDER DENYING DEFENDANTS' RENEWED RULE 33 MOTIONS FOR NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE AND DENYING DEFENDANTS' MOTIONS FOR AN INDICATIVE RULING (ECF NOS. 379. 380. 392)
PAUL D. BORMAN, UNITED STATES DISTRICT JUDGE
This matter is before the Court on Defendant Antonio Bravata's "Motion for An Indicative Ruling Regarding Defendant's Renewed Rule 33 Motion for New Trial Based on Newly Discovered Evidence, " filed on October 30, 2014. (ECF No. 379.) Defendant John Bravata joined in Defendant Antonio Bravata's motion (ECF No. 380) and subsequently filed a separate "Motion for an Indicative Ruling Regarding Renewed 33 Motion for New Trial (R3 79) Based on Newly Discovered Evidence" (ECF No. 392). Specifically, Defendants seek a ruling from this Court indicating either (1) that it would grant the Defendants' renewed motions for new trial if the Sixth Circuit were to remand for this purpose or (2) that it finds the motions raise a substantial issue that may merit remand. The Court has determined that oral argument would not assist in resolving the issues raised in the motions and orders submission and determination without hearing. E.D. Mich. L.R. 7.1(f)(2). The Court concludes that the Defendants' motions do not raise a substantial issue and finds no merit in Defendants' renewed motions for new trial based on newly discovered evidence. Accordingly, the Court DENIES the renewed Rule 33 motions for a new trial and DENIES the motion for an indicative ruling.
On March 14, 2013, shortly after the 30th day of trial had begun, the Court dismissed Juror #4, who was ill and was unable to serve that day, and replaced Juror #4 with an alternate juror. Defendants now ask this Court to consider their motions for a new trial, filed under Fed. R. Crim. P. 33(b)(1), based upon allegedly newly discovered evidence, specifically the October 14, 2014 Affidavit of dismissed Juror #4. Federal Rule of Criminal Procedure 33 provides that "[a]ny motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty" and further provides that "[i]f an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case." Fed. R. Crim. P. 33(b)(1). "The traditional rule is that a timely appeal divests the district court of jurisdicfion to reconsider its judgment until the case is remanded by the Court of Appeals." Dunham v. United States, 486 F.3d 931, 935 (6th Cir. 2007) (internal quotation marks and citation omitted). The Defendants' appeals of their guilty verdicts in this case are currently pending in the United States Court of Appeals for the Sixth Circuit. Accordingly, this Court would generally lack jurisdiction to address Defendants' renewed Rule 33 motions.
Acknowledging this jurisdictional hurdle, Defendants seek a ruling from this Court indicating to the Sixth Circuit that this Court has considered the motions for new trial and would grant the motions for a new trial if the case were remanded or indicating to the Court of Appeals that the motions present substantial questions, warranting remand from the Sixth Circuit. Defendants rely on Fed. R. App. P. 12.1, which addresses the procedure to be followed in the event that a district court issues an "indicative ruling" suggesting remand. "Remand is in the court of appeals' discretion under Federal Rule of Appellate Procedure 12.1." Fed. R. Crim. P. 37 Advisory Committee Notes, 2012 Adoption.
This Court's analysis begins, however, with Fed. R. Crim. P. 37, which outlines the options available to the district court when presented with a motion that is otherwise barred due to the pendency of an appeal:
Rule 37. Ruling on a Motion for Relief That is Barred by a Pending Appeal
(a) Relief Pending Appeal, If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may:
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.
(b) Notice to the Court of Appeals. The movant must promptly notify the circuit clerk under Federal Rule of Appellate Procedure 12.1 if the district court states that it would grant the motion or that the motion raises a substantial issue.
(c) Remand. The district court may decide the motion if the court of appeals remands for that purpose.
Fed. R. Crim. P. 37. A statement issued by the trial court pursuant to subsection (a)(3), suggesting that remand to the trial court would be appropriate, is commonly referred to as an "indicative ruling." See Fed. R. Civ. P. 37, 2012 Advisory Committee Notes ("Experienced lawyers often refer to the suggestion for remand as an "indicative ruling."). "In the criminal context, the Committee anticipates that Criminal Rule 37 will be used primarily if not exclusively for newly discovered evidence motions under Criminal Rule 33(b)(1)." Id. In this ...