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UNITED STATES v. EVANS

October 7, 1997

UNITED STATES OF AMERICA, Plaintiff,
v.
JESSE J. EVANS, Defendant.



The opinion of the court was delivered by: BUCKLO

 On June 16, 1997, a jury convicted defendant Jesse Evans on all but one count of a 16 count indictment. Mr. Evans has filed various post-trial motions. The Government argues that all but one of them are untimely.

  I.

 At the time the jury returned its verdict, Mr. Evans, through counsel, asked for "30 days" (Tr. 2832) to file post-trial motions. I granted the request. On July 9, 1997, Mr. Evans sought an extension of time until August 18, 1997 to file post-trial motions. The Government did not object. I granted the motion. Mr. Evans' motions were filed on August 18, 1997.

 Fed. R. Crim. P. 29(d) provides that a motion for a judgment of acquittal must be brought within seven days of the time a jury is discharged "or within such further time as the court may fix during the 7-day period." Fed. R. Crim. P. 33 provides that a motion for a new trial on any ground other than newly discovered evidence "shall be made within 7 days after verdict ... or within such further time as the court may fix during the 7-day period." Rule 45(b), Fed. R. Crim. P. permits the court to extend time upon request with the exception that "the court may not extend the time for taking any action under Rules 29, 33 ..., except to the extent and under the conditions stated in them."

 In Carlisle v. U.S., 517 U.S. 416, 134 L. Ed. 2d 613, 116 S. Ct. 1460 (1996), the United States Supreme Court held that these rules "are plain and unambiguous" and that they could not be extended or excused by a trial judge. 116 S. Ct. at 1464. Although Carlisle did not specifically deal with the question raised by Mr. Evans' actions, namely, a second request for additional time to file his motions made after the granting of a timely motion for additional time to file motions, the Seventh Circuit has held that a district court lacks power to grant the second request for an extension of time, and has no power to decide the untimely filed post-trial motions on their merits. U.S. v. Hocking, 841 F.2d 735 (7th Cir. 1988).

 Mr. Evans argues that there is an exception permitting me to decide his motions on the ground that he was affirmatively misled by me and the government, because I mistakenly granted his July 9 motion for an extension of time to August 18 to file the motions and because the Government failed to object or to tell him about the rule. There is some doubt about the existence of such an exception given the Supreme Court's opinion in Carlisle that holds that equity does not permit an extension of the time limits set forth in the rules. 116 S. Ct. at 1468, 1469. However, a concurring opinion in Carlisle, in which three justices joined, *fn1" which referred to an example in which a trial judge misinformed a party that his new trial motion was made "in ample time" when it was shown that a party would have filed a notice of appeal on time but for the improperly granted extension of time, may leave such an opening based on principles of estoppel. Even so, it has been held that the exception applies "only where a party has performed an act which, if properly done, would postpone the deadline for filing his [motion] and has received specific assurance by a judicial officer that this act has been properly done." Osterneck v. Ernst & Whinney, 489 U.S. 169, 179, 103 L. Ed. 2d 146, 109 S. Ct. 987 (1989) (emphasis added). The Seventh Circuit has held that a minute order granting an extension of time "is not an act of affirmative representation by a judicial officer as contemplated by Osterneck." Green v. Bisby, 869 F.2d 1070, 1072 (7th Cir. 1989). The court has reached the same conclusion regarding spoken orders. Varhol v. National R.R. Passenger Corp., 909 F.2d 1557, 1563 (7th Cir. 1990) (en banc). *fn2"

 Mr. Evans says I "affirmatively misled" him into filing late by orally stating at a hearing on July 9 that I would grant his request for an extension of time "because the trial transcript apparently isn't done." *fn3" (Tr. 8) I do not think my words can be construed as anything more than the grant of an extension that would have (erroneously) been given through a minute order but for the fact that Mr. Evans' attorney was in court.

 Mr. Evans argues that his extension was necessary because the court reporter had not prepared the trial transcript. *fn4" However, Mr. Evans had not ordered the transcript until June 30, 1997, which is the reason it was going to be later than might have been expected. *fn5" But if Mr. Evans needed the transcript in order to file his post-trial motions it would not have made any sense to ask for only 30 days following the verdict to file his motions. Even if Mr. Evans had ordered the transcript immediately instead of waiting until half of his requested 30 day extension had passed to place the order he would not have gotten the transcript until the day his motions were due under his requested extension. Furthermore, I can find no reason why Mr. Evans could not have filed his post-trial motions without a transcript. Even if the transcript were needed to complete a memorandum in support, the motions themselves did not depend on the specificity of a transcript.

 Mr. Evans says he relied on the fact that the Government did not object to his July 9 motion for an extension of time (the Government says it didn't know about the rule either) and my grant of his motion. Mr. Evans fails to point out that shortly before the trial of this case Judge Zagel had run into the same problem and issued an opinion in a case in which counsel for Mr. Evans was one of the attorneys. In U.S. v. Boyd, 172 F.R.D. 363 (N.D. Ill. April 4, 1977), Judge Zagel ruled that under Carlisle and Hocking, "and the plain language of the applicable Rules" he had no authority to decide motions filed under the same circumstances that Mr. Evans' motions have been filed in this case. Judge Zagel noted that while he had given the extension of time in error, he had not given the attorneys specific assurance that the motions could be filed beyond the appropriate time period. Id. at 367. Given Judge Zagel's recent opinion, counsel could not reasonably have relied on my authority to grant the requested extension.

 Mr. Evans says he was also confused by and relied on Local Criminal Rule 3.01, which provides that post-trial motions for a new trial, etc. shall be supported by written memoranda "filed within ten (10) days of conviction (or such other time as the Court shall allow) unless filing is excused by the Court." The local rule is not inconsistent with Fed. R. Crim. P. 29, 33 and 45. It deals with the requirement that counsel not submit a bare bones motion without any written argument in support of it unless the court excuses filing a memorandum. The times noted in the local rule concern the date on which the memorandum in support must be filed. I do not think the rule is reasonably susceptible to confusion. Of course, if there is a conflict between a local rule and the Federal Rules of Criminal Procedure, it is a familiar rule of construction that the Federal Rules of Criminal Procedure govern. *fn6" Whitehouse v. U.S. District Court, 53 F.3d 1349, 1355-56 (1st Cir. 1995).

 For all of these reasons, I do not think an appellate court would find exceptional circumstances in this case for failing to file post-trial motions within the time requested and granted at the time the jury returned its verdict. Nevertheless, one of the motions filed by Mr. Evans does raise an issue that would not have been known at the time the motions should have been filed, and is thus timely.

 II.

 The timely filed motion seeks a new trial on the basis that one of the jurors in this case, Ms. Drown, might have been influenced in some way by knowledge that James Burns, the U.S. Attorney for the Northern District of Illinois at the time of trial, had an "ongoing relationship" with the law firm, Sidley & ...


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