Appeal from the United States District Court for the District of Columbia (98cr00435-01)
Before: Ginsburg, Chief Judge; Henderson and Randolph,
The opinion of the court was delivered by: Randolph, Circuit Judge
Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.
This is the third time the case of United States v. Hall has been before us. In the earlier cases, the government appealed district court orders granting Hall new trials. United States v. Hall, 214 F.3d 175 (D.C. Cir. 2000); United States v. Hall, 324 F.3d 720 (D.C. Cir. 2003). We reversed both orders. In this case, Hall appeals his conviction for possessing a firearm by a convicted felon (18 U.S.C. § 922(g)(1)). His arguments are that his trial attorney's failure to file a timely new trial motion constituted ineffective assistance and that errors at trial, mainly during closing argument, tainted the verdict.
At the close of the government's case-in-chief, the district court told the jury that the prosecution and defense stipulated that Hall had been convicted in the District of Columbia of "a crime punishable by imprisonment for a term exceeding one year" (18 U.S.C. § 922(g)(1)). Hall's defense was that he did not possess the pistol recovered under a van just after midnight on December 3, 1998.
The events leading to recovery of the pistol that evening are as follows. Plainclothes officers were on a routine patrol, traveling in two marked police cruisers in the Barry Farms housing project, a high crime and drug area in the District of Columbia. Officers noticed Hall alone in a walkway between townhomes. As one of the police cars approached, Hall bolted. Officers in the other car saw Hall running through the alleys. Two of these officers - Moye and Rollins - got out of their car and watched Hall run around another house. Officer Moye saw him stop behind a van, bend down and place an object under the van, and start running again, this time toward the two officers. Officer Rollins detained Hall while Officer Moye went to the van, under which he found a loaded.22 caliber pistol. He left the pistol there, returned to Officer Rollins and "motioned with [his] lips" that there was a gun under the van. Hall, who was on his knees facing away from Officer Moye, asked Officer Rollins: "What did he say, there's a gun under the car? Did he say he found a gun?" The officers then arrested Hall. A search incident to the arrest produced a small amount of marijuana. (Hall was also indicted for illegally possessing marijuana; he conceded his guilt at trial.)
The jury returned its verdict of guilty on May 5, 1999. Under Federal Rule of Criminal Procedure 33(b)(2), new trial motions based on grounds other than newly discovered evidence must be filed within seven business days after the verdict "or within such further time as the court sets during the 7-day period." See FED. R. CRIM. P. 45(a) & (b)(2). On May 14, seven business days after May 5, Hall's attorney filed a motion to extend the time for filing a new trial motion. The district court did not act on the extension motion until early June, when the court issued an order "nunc pro tunc," giving Hall until June 10 to file a motion for a new trial. Hall filed his motion on that date and, over the government's objection, the district court granted it. We reversed on the ground that the district court had no authority under Rule 33 to grant an extension of time after the seven-day period expired. 214 F.3d at 178.
On remand, the district court again ordered a new trial, this time on the basis of "newly discovered evidence," a ground that may be raised within three years of the verdict. FED. R. CRIM. P. 33(b)(1). The newly discovered evidence was the failure of Hall's attorney to file a new trial motion within seven business days of the verdict. We reversed, holding that the court erred in granting "a new trial based on conduct that did not occur until after trial." 324 F.3d at 724.
Hall's claim of ineffective assistance of counsel rests on the proposition that his attorney should have filed a new trial motion rather than a motion for extension of time. We think there is nothing to this. Hall's attorney complied with the rules; she missed no deadlines; her motion was timely; and Rule 33 clearly authorizes motions for extensions of time to file new trial motions. As we have recognized, seven days may not always be "adequate time to make a well-supported motion for a new trial," which is why Rule 33 "affords judges great flexibility to set a new due date," United States v. Marquez, 291 F.3d 23, 28 (D.C. Cir. 2002). It is true that Hall's attorney waited until the eleventh hour before seeking an extension and thus ran the risk that the district court might not act before the end of the seven-day time limit (or might deny the motion at the last minute). But it is also true that the attorney's assistant called the district court's chambers several times on the afternoon of May 14 to stress the urgency of the motion. The district court took no action, not out of neglect, but deliberately, apparently believing - incorrectly - that it could ignore the Rule 33 deadline. The court explained in its nunc pro tunc order of June 3 that it "held the motion [for extension] in abeyance in order to afford the United States an opportunity to respond," United States v. Hall, No. 98-435-LFO (D.D.C. June 3, 1999), an explanation the court reiterated in its first order granting a new trial.*fn1 United States v. Hall, No. 98-435-LFO, Order at 4 (D.D.C. Nov. 3, 1999). Given this state of affairs, it may not have mattered that defense counsel filed the extension motion on the seventh business day after the verdict rather than on, say, the third or the fourth. The local rules gave the government eleven days to reply to the motion, unless the court ordered otherwise, which it did not. D.C. L. CR. R. 47(b). In Hall I we faulted defense counsel for filing an extension motion rather than a new trial motion, stating that at oral argument counsel for Hall "offered no explanation" for following the former course. 214 F.3d at 178. Whatever may have occurred at oral argument in this court, the extension motion did provide a reason to the district court - defense counsel stated that she had been hospitalized, after which her trial schedule became "especially demanding," so much so that she had not had a chance to address the issues warranting a new trial. The district court realized that any blame could not be laid at the feet of Hall's attorney. In granting the first new trial motion, the court described Hall's motion for an extension of time as "timely" and stated that it would be "manifestly unjust" to "penalize the defendant for the Court's delay in granting the motion...." Hall, No. 98-435-LFO, Order at 4 (D.D.C. Nov. 3, 1999). The problem Hall encountered was therefore not that his attorney negligently missed a deadline as in Roe v. Flores-Ortega, 528 U.S. 470 (2000). The problem was that the district court did not view the seven-day period as a strict deadline. (The court was not alone in that view. See United States v. Marquez, 291 F.3d at 26-27.) For all of these reasons, we hold that in filing the extension motion on the seventh day, Hall's attorney did not perform in a "professionally unreasonable" manner and that Hall was not deprived of the effective assistance of counsel within the meaning of the Sixth Amendment to the Constitution. Strickland v. Washington, 466 U.S. 668, 691 (1984).*fn2
Hall complains that the prosecution referred to his felony conviction too often in its arguments to the jury: four times in the opening argument, eight times in the closing argument, and four times in the rebuttal. Hall never objected on this ground*fn3 and so the question is whether the district court committed plain error in not, at some ...