United States District Court, N.D. Illinois, Eastern Division
VIRGINIA M. KENDALL, UNITED STATES DISTRICT JUDGE
March 2016, the Court presided over Carl Palladinetti's
nonjury trial for bank fraud. (Dkt. 171). The government
rested after its case-in-chief, and Palladinetti moved for a
judgment of acquittal under Federal Rule of Criminal
Procedure 29. (Dkt. 177, Trial Tr. at 51:18-58:13.) The Court
orally denied the motion on the record because it found that
the government proved beyond a reasonable doubt that
Washington Mutual Bank was federally insured at the time of
the offense. Id. at 58:14- 61:7. Palladinetti then
put on a defense case regarding the insurance element. After
he rested, the Court heard closing arguments. Because the
parties had already stipulated to the other elements of the
charge (Dkt. 172), the Court found Palladinetti guilty of
bank fraud in violation of 18 U.S.C. § 1344 (Dkt. 171).
point, Palladinetti moved for an extension of time to file
posttrial motions. (Dkt. 177 at 70:4-14.) The Court granted
his motion, ordering him to file his motion by April 15.
Id. at 70:15-20. After trial counsel for
Palladinetti withdrew, and new counsel appeared on March 8,
the Court reset the posttrial motion deadline for April 22.
(Dkt. 174.) On April 22, Palladinetti timely moved for a new
trial under Federal Rule of Criminal Procedure 33(a),
claiming he received ineffective assistance of counsel at
trial. (Dkt. 181.) The government responded and then the
Court held an evidentiary hearing on the motion. (Dkt. 188,
210, 212.) The Court subsequently ordered supplemental
briefing on the motion for new trial. (Dkt. 212.) After two
extensions, the parties filed their papers on September 12.
August 2017, the Court denied Palladinetti's motion for a
new trial. (Dkt. 260.) Nearly two years later, in May 2019
(that is over three years from the original filing of the
posttrial motion), Palladinetti moved the Court to reconsider
its finding of guilt on Count 1. (Dkt. 323.) In his motion,
Palladinetti contends that the government failed to prove the
essential jurisdictional element of the crime-the financial
institution's federally-insured status. He reasons that
the government neither proved the identity of the lender in
the underlying mortgage transaction nor the insurance status
of the lender.
government responded arguing that Palladinetti's motion
is untimely and inappropriate under Rule 29. (Dkt. 327.)
Palladinetti replied asserting that he promptly moved to
reconsider under either the common law or Federal Rule of
Criminal Procedure 12(b)(2). (Dkt. 330.) Under the common
law, Palladinetti essentially agreed with the government that
Rule 29 does not apply to a nonjury trial and insisted that
that meant the Court could reconsider the sufficiency of the
evidence at any time prior to entry of judgment. Under Rule
12, Palladinetti maintains that he can raise want of
jurisdiction ay any time while the case is pending.
that the federally chartered or insured status of the
institution is a “jurisdictional prerequisite”
does not mean that a court lacks subject-matter jurisdiction
over a criminal case where that element is lacking. See
United States v. Myles, 636 Fed.Appx. 145, 147 (4th Cir.
2016) (quoting United States v. Ratigan, 351 F.3d
957, 964 (9th Cir. 2003)). The reason being “[t]hat
[that] jurisdictional prerequisite ‘is measured as a
challenge to the sufficiency of the evidence.'”
United States v. Locklear, 97 F.3d 196, 199 (7th
Cir. 1996) (collecting cases). A deficiency in the
government's evidence of a bank's federally-insured
status is a merits issue. See id.; Myles,
636 Fed.Appx. at 147 (quoting Ratigan, 351 F.3d at
963); United States v. Crawford, 714 Fed.Appx. 27,
31 (2d Cir. 2017), cert. denied, 138 S.Ct. 1275
(2018) (internal citations omitted). Even assuming the
government failed to prove the insurance element beyond a
reasonable doubt, the Court did not lack jurisdiction over
the case. Therefore, Palladinetti's Rule 12 motion is
the parties are correct that “‘Rule 29 has no
real application when a case is tried by the court since the
plea of not guilty asks the court for a judgment of
acquittal.'” United States v. Grace, 367
F.3d 29, 34 (1st Cir. 2004) (quoting Moore's Federal
Practice § 629.02 (3d ed. 2002) and explaining
that the plea of not guilty is the “functional
equivalent” of a Rule 29 motion in a nonjury trial).
That makes additional sense after considering that
“Rule 29 protects a defendant ‘against an
improper or irrational verdict of the jury, '” not
the judge. Id. (first quoting Moore's
Federal Practice § 629.02 (3d ed. 2002); then
citing 2A Charles Allen Wright, Arthur R. Miller & Edward
H. Cooper, Federal Practice & Procedure §
461 (2000)). Accordingly, Rule 29 does not apply to this
nonjury trial. See United States v. Hogan, 89 F.3d
403, 404 (7th Cir. 1996); see also United States v.
Angulo-Hernandez, 175 Fed.Appx. 79, 81 (7th Cir. 2006).
Palladinetti is right that the Seventh Circuit has
“recognized that as a matter of general practice a
motion to reconsider in a criminal prosecution is proper and
may be entertained if it is filed in time.” United
States v. Beard, 745 F.3d 288, 291 (7th Cir. 2014)
(citing United States v. Rollins, 607 F.3d 500, 504
(7th Cir. 2010)); see generally United States v.
Healy, 376 U.S. 75 (1964). The government was wrong to
not respond to this theory. No. matter; both parties missed
the second rule statement that directly followed the first in
Beard: “The applicable time is the same 14-day
period that applies to other motions that suspend the time
for taking an appeal under Fed. R. App. P. 4(b).” 745
F.3d at 291 (citing United States v. Redd, 630 F.3d
649, 650 (7th Cir. 2011)); see United States v.
Simmons, 683 Fed.Appx. 522, 523-24 (7th Cir. 2017),
reh'g denied (May 9, 2017), cert.
denied, 138 S.Ct. 273 (2017) (applying the 14-day rule
to a motion to reconsider); United States v.
Townsend, 762 F.3d 641, 645 (7th Cir. 2014) (same);
United States v. Morales, 527 Fed.Appx. 542, 543
(7th Cir. 2013) (same).
Palladinetti moved to reconsider more than three
years outside the judicially-extended period for the
filing of posttrial motions. (Dkt. 174, 181, 323.) His
motion, thus, is untimely. See United States v.
Gupta,363 F.3d 1169, 1176 (11th Cir. 2004) (holding
that motions to reconsider filed outside an extended
post-verdict period are impermissible under a previous
version of the Rules); United States v. Brewer, 60
F.3d 1142, 1144 (5th Cir. 1995) (concluding that Rule 45
governs the timeliness of a motion to reconsider in a
criminal case); see, e.g., United States v.
Patterson, No. 04 CR 705-1, 2007 WL 1438658, at *12
(N.D. Ill. May 15, 2007), aff'd, 397 Fed.Appx.
209 (7th Cir. 2010) (expressing skepticism that “any
motion for reconsideration of the denial of a Rule 29 or 33
motion, filed eleven months after that denial, can be
considered timely” because it runs contrary to the
policies reflected in ...