Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. EV 75-17-CR - S. Hugh Dillin, Judge.
Clark, Associate Justice,*fn* Castle, Senior Circuit Judge, and Bauer, Circuit Judge.
Defendant-appellant Ellison was tried by a jury on a multiple-count indictment charging him with conspiracy to distribute controlled substances and with several counts of distributing controlled substances in violation of 21 U.S.C. § 841(a)(1). The evidence presented at trial showed that Ellison, a pharmacist, conspired with a physician*fn1 to distribute controlled substances without a legitimate medical purpose. Upon conviction, Ellison received an 18-month prison sentence on the conspiracy count and 18-month concurrent sentences on the substantive counts. After perfecting an appeal from his convictions, Ellison filed a motion for a new trial in the district court, which was denied for lack of jurisdiction. Ellison then filed a separate notice of appeal from the district court's post-trial ruling, and we ordered that appeal docketed and consolidated with the appeal he brought from his convictions.
Ellison proposes several grounds for overturning his convictions and urges us to reverse the district court's order denying his motion for a new trial. He contends (1) that extrajudicial admissions used against him at trial were made involuntarily because induced by promises of leniency; (2) that he was denied the effective assistance of counsel at trial; (3) that the district court erred in refusing to admit evidence he offered to rebut the Government's proof of an overt act in furtherance of the conspiracy; and (4) that he was sentenced on counts under which he was not convicted.
We affirm his convictions and the district court's post-trial ruling for the reasons noted below.
Ellison's principal claim is that the district court erred in denying his pretrial motion to suppress allegedly involuntary statements made to agents of the Federal Drug Administration, the Indiana State Police and the Evansville Police Department. Ellison contends that he was told by federal drug agents auditing his pharmaceutical records that "You have a clean bill of health. We are satisfied with the audit." Construing that statement as an implied promise of immunity from prosecution, Ellison says that it was only because of that promise that he agreed to waive his Miranda rights and cooperate in the state and federal investigations that led to his arrest, trial and convictions. He reasons from this assertion that the statements he made to various federal and state agents were involuntary because, had he known he was a target of the investigations, he would not have waived his right to remain silent and made the incriminating admissions later used against him at trial.
The principal flaw in Ellison's argument is that it proceeds from the erroneous premise that he was told by federal drug agents that he had a "clean bill of health." After hearing the evidence presented at the pretrial suppression hearing, the district court expressly found that the agents never told Ellison that he had a clean bill of health or that he was not a subject of their investigation. Crediting the agents' testimony, the district court determined that the agents in fact told Ellison that they were turning the results of their investigation over to the United States Attorney. Ellison does not challenge the district court's findings as clearly erroneous, and we do not believe that they are. In view thereof, we deem Ellison's implied-promise-of-immunity argument patently frivolous and hold that his extrajudicial admissions were properly used against him at trial.
Ellison next contends that he was denied the effective assistance of counsel at trial. Recognizing that the facts underlying his claim are not part of the trial record submitted to us on direct appeal from his convictions and correctly anticipating that we would not overturn his convictions on the basis of matters outside the trial record, Ellison filed a motion for a new trial in the district court after perfecting an appeal from his convictions and attached to the motion an affidavit setting forth the facts upon which he bases his incompetency-of-counsel claim. The facts alleged therein suggest that Ellison's privately retained counsel was inadequately prepared for trial and made numerous tactical errors in the course of the trial, such as refusing to take issue with allegedly inaccurate statements made at trial and declining to call various witnesses at the defendant's behest, including Ellison himself. Finding that the underlying facts were known to Ellison at the time of trial and thus could not be "newly discovered" evidence, the district court denied his motion for lack of jurisdiction because it was untimely filed under Rule 33 of the Federal Rules of Criminal Procedure. Ellison filed a separate notice of appeal from the district court's order so that he might obtain review of the ruling in concert with his direct appeal from his convictions.
As Ellison anticipated, we decline to pass upon the merits of his ineffective-assistance-of-counsel claim on direct appeal from his convictions, for the facts upon which his claim is founded are not part of the trial record. We also affirm the district court's denial of his motion for a new trial for the reasons given below.
We address at the outset certain threshold issues posed by Ellison's appeal from the district court's order denying his motion for a new trial. Because Ellison filed a separate notice of appeal from the district court's order, we believe we have jurisdiction under 28 U.S.C. § 1291 to review the district court's ruling in concert with Ellison's direct appeal from his conviction. Richardson v. United States, 360 F.2d 366, 369 (5th Cir. 1966); see United States v. Hays, 454 F.2d 274, 275 (9th Cir. 1972). We note, however, that there is some question as to whether the district court itself had jurisdiction to entertain a motion for a new trial while an appeal from Ellison's conviction was pending in this Court. One Circuit appears to take the view that the filing of a notice of appeal from a criminal conviction ousts the district court of jurisdiction to consider any post-trial motions related to a case pending on appeal. United States v. Johnson, 487 F.2d 1318, 1321 (5th Cir.), cert. denied, 419 U.S. 825, 42 L. Ed. 2d 48, 95 S. Ct. 41 (1974). Other Circuits, however, take the position that Rule 33, in barring district courts from granting motions for a new trial while appeals are pending, implicitly authorizes the district courts to hear and deny such post-appeal motions. United States v. Hays, supra at 275; Rakes v. United States, 163 F.2d 771, 772-73 (4th Cir. 1947), cert. denied, 335 U.S. 826, 93 L. Ed. 380, 69 S. Ct. 51 (1948). We believe it necessary to resolve this issue here, for, unless the district court had the power to entertain Ellison's motion for a new trial while an appeal from his convictions was pending, there is no reason to reach the question of whether his motion was based on "newly discovered" evidence and thus timely filed under Rule 33.
Ordinarily, the filing of a timely notice of appeal from a final judgment ousts the district court of jurisdiction to proceed further in the case except in aid of the appeal. Elgen Mfg. Co. v. Ventfabrics, Inc., 314 F.2d 440, 444 (7th Cir. 1963). However, this general rule is subject to the exception that a district court may consider such matters as authorized by statute or rule. Id. Pursuant to that exception, we have held that district courts may reach the merits of motions filed under Rule 60(b) of the Federal Rules of Civil Procedure while an appeal is pending, including motions for a new trial based on allegations of newly discovered evidence. E.g., Washington v. Board of Education, 498 F.2d 11, 15-16 (7th Cir. 1974); Binks Mfg. Co. v. Ransburg Electro-Coating Corp., 281 F.2d 252, 260-61 (7th Cir. 1960), cert. dismissed, 366 U.S. 211, 81 S. Ct. 1091, 6 L. Ed. 2d 239 (1961). Under the approved procedure, the district court may either deny the motion on the merits without seeking leave to do so from this Court or, if disposed to grant the motion, certify its determination so that a ...