The opinion of the court was delivered by: Herndon, Chief Judge
Before the Court is Defendant Rodney L. Brown's Motion for New Trial (Doc. 257), filed pursuant to FEDERAL RULE OF CRIMINAL PROCEDURE 33, to which the Government has filed its opposing Response (Doc. 263). Having reviewed the motion and all of the briefs in support and in opposition, the Court, in its discretion, has determined that a hearing on Defendant's motion is unnecessary. See United States v. Hedman, 655 F.2d 813, 814 (7th Cir. 1981).
Rodney Brown was found guilty by a jury as to Counts 1 and 2 (Doc. 187) of the Superseding Indictment(Doc. 50). Count 1 charged Rodney L. Brown with bank robbery by force or violence in violation of 18 U.S.C. §§ 2113(a), 2113(d) and 2. Count 2 charged him with use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c)(1) and 2.
Under FEDERAL RULE OF CRIMINAL PROCEDURE 33, a defendant may move for a new trial. Upon review, the Court "may vacate any judgment and grant a new trial if the interest of justice so requires." FED.R.CRIM.P. 33(a). If the basis for seeking a new trial is not due to new evidence then the Court must determine if a new trial is warranted because there exists a "reasonable possibility that a trial error had a prejudicial effect upon the jury's verdict." United States v. Van Eyl, 468 F.3d 428, 436 (7th Cir. 2006) (citing United States v. Berry, 92 F.3d 597, 600 (7th Cir. 1996)). A new trial may also be warranted where "trial errors or omissions have jeopardized the defendant's substantial rights." United States v. Reed, 986 F.2d 191, 192 (7th Cir. 1993) (citing United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989)). Such a determination is completely within the Court's sound discretion. United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989)(citing United States v. Nero, 733 F.2d 1197, 1202 (7th Cir. 1984)). However, the Court should be mindful that the power bestowed by Rule 33 to grant a new trial should only be done in the "most 'extreme cases.'" United States v. Linwood, 142 F.3d 418, 422 (7th Cir. 1989) (quoting United States v. Morales, 902 F.2d 604, 605 (7th Cir. 1990)).
According to Brown, justice requires a new trial be granted due to prosecutorial misconduct, improper jury instructions, and errors in evidentiary rulings (Doc. 257). Brown specifically asserts Brady violations, vouching by the prosecutor, the use of inadmissible 404(b) evidence, and improper jury instructions.
A. Timeliness of the Motion for New Trial
Before the Court reaches the merits of Defendant Brown's motion for new trial, the Court must first address the issue of the timeliness of Defendant's motion. The Government, in its response, argues that Defendant's motion for new trial is time-barred under Rule 33's time limits and that only the portion of Defendant's motion which can be construed as a claim of newly discovered evidence can survive. Having reviewed the arguments, the Court determines that Defendant's motion is not time barred as the Court had authority to grant Defendant successive extensions of time to file his motion.
Under Rule 33,a motion for a new trial based on new evidence must be brought within 3 years after the verdict and a Rule 33 motion for new trial based on other grounds must be brought within 7 days after the verdict. Any motion for a new trial on other grounds filed more than seven days after the verdict is too late. See FED.R.CRIM.P. 33(b)(2); United States v. McGee, 408 F.3d 966, 979 (7th Cir. 2005); United States v. Washington, 184 F.3d 653, 659 (7th Cir. 1999). Only Rule 33 motions grounded on new evidence have longer time limits. United States v. Cavender, 228 F.3d 792, 802 (7th Cir. 2002). While a motion for new trial based on all other grounds must be filed within seven (7) days after a verdict or finding of guilty, the Court may grant a Defendant additional time as long as a motion for extension of time is filed within the seven day time-period. United States v. Ghilarducci, 480 F.3d 542, 551 n.1 (7th Cir. 2007); see also FED.R.CRIM.P. 45(b),FED.R.CRIM.P.33, Note to 2005 Amendments.
Defendant Brown first filed his Motion For Extension of Time to File Motion For a New Trial (Doc. 196) on December 29, 2008. The Court granted Defendant Brown's motion at a status hearing held on February 2, 2009 (Doc. 215). The Court subsequently granted Defendant five additional extensions of time in which to file a motion for new trial (See Docs. 222, 235, 245, 252, 256).*fn1 At no time did the Government object to the extensions.
The Government argues now that the Court lacked authority to further extend the time limit for filing Defendant's motion for new trial because Rule 33 does not allow for successive extensions of time. In support of its argument, the Government cites to United States v. Hocking, 841 F.2d 735 (7th Cir. 1988). In Hocking, the Seventh Circuit held that the district court lacked authority under Rule 33 to grant defendant a second extension of time in which to file his motion for new trial. The Seventh Circuit found that the motion was untimely because the district court could not grant a successive extension of time outside of the seven day time period following the trial. Id. at 737. In finding that the district court lacked authority to grant a further extension of time, the Seventh Circuit noted that Rule 33 does not allow successive extensions and that Rule 45(b) expressly forbids it. Id. at 737.
However, the Court notes that Rule 33 and 45(b) have substantially changed since the decision in Hockings. In 2005, Rules 33 was amended to remove the requirement that the district court act within seven days after a verdict in extending the deadline for filing a motion for new trial. See FED.R.CRIM.P. 33 (b), Note to 2005 Amendments; Ghilarducci, 480 F.3d at 550 (previous version of Rule 33 required that motions for new trial not based on newly discovered evidence must be filed within seven days of the verdict or finding of guilt or "'within such further time as the court sets during the seven day period.'" (emphasis added)(quoting Fed.R.Crim.P. 33(b)(2004)). Further, in line with ...