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UNITED STATES v. SANCHEZ

February 23, 1996

UNITED STATES OF AMERICA
v.
VICTOR SANCHEZ, a/k/a ANGEL TORRES, Defendant.



The opinion of the court was delivered by: LAMBERTH

 This matter came before the court on September 14, 1995 for a hearing on defendant's Rule 33 motion for a new trial based on a claim of ineffective assistance of trial counsel. Defendant contends that he lacks proficiency in the English language, and that his inability to communicate effectively with counsel during the course of his trial resulted in the denial of his Sixth Amendment right to "reasonably competent assistance" by counsel. Rule 33 permits a defendant to file a motion for new trial based on "newly discovered evidence" within two years of final judgment. Fed. R. Crim. P. 33. Defendant admits that he was aware of the existence of these communication problems at the time of trial. However, defendant maintains that, under District of Columbia law, evidence in support of a claim of ineffective assistance of counsel -- regardless of when it is discovered -- constitutes "newly discovered evidence" for purposes of Rule 33. Because final judgment has not been rendered in this case, defendant argues that his motion is timely filed. Defendant therefore requests an evidentiary hearing to present this "newly discovered evidence" and asks this court to rule on the merits of his claim of ineffective assistance of counsel.

 Upon consideration of the text of Rule 33, the applicable case law, and the filings and arguments of counsel, the court rejects defendant's argument that evidence of ineffective assistance of counsel -- even though known by defendant at the time of trial -- constitutes "newly discovered evidence" for Rule 33 purposes. To the contrary, evidence known but unappreciated by defendant at the time of trial will rarely if ever, constitute "newly discovered evidence" under Rule 33. Rule 33 requires motions such as defendant's that are not based on "newly discovered evidence" to be filed within seven days of the guilty verdict. See Fed. R. Crim. P. 33. Because defendant's motion was filed over four years after the jury conviction, defendant's motion is procedurally time-barred and, consequently, this court lacks jurisdiction to consider the motion. Defendant, however, still has the opportunity to raise his claim of ineffective assistance of counsel and request for new trial after sentencing pursuant to 28 U.S.C. ┬ž 2255. Accordingly, for the reasons set forth below, defendant's request for an evidentiary hearing to determine whether defendant's claim of ineffective assistance of counsel is sufficient to justify the granting of a new trial shall be denied.

 I.

 BACKGROUND

 Defendant was arrested on October 25, 1990 while in constructive possession of approximately 250 grams of cocaine base and 6 grams of cocaine hydrochloride. He was then charged and tried for possession with intent to distribute both cocaine products. On January 29, 1991 -- the second day of trial -- defendant failed to appear in court. The court issued a bench warrant for defendant's arrest, and after a finding that he had voluntarily absconded from the court, the court proceeded with the trial in defendant's absence. On January 30, 1991, the jury found defendant guilty of possession with intent to distribute 50 grams or more of cocaine base and possession with intent to distribute cocaine hydrochloride. On July 14, 1994, the bench warrant was executed and defendant was taken into federal custody.

 II.

 DISCUSSION

 
Federal Rule of Criminal Procedure 33 provides:
 
The court on motion of a defendant may grant a new trial to that defendant if required in the interests of justice . . . . A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after the final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other ground shall be made within 7 days after verdict or finding of guilty or within such further time as the court ray fix during the 7-day period.

 Id. Defendant argues that the evidence upon which his claim of ineffective assistance of trial counsel is based -- even though known to him at the time of trial -- constitutes "newly discovered evidence" for purposes of Rule 33. Defendant further contends that his motion is timely because it was filed within two years of final judgment as required by Rule 33.

 The government, however, maintains that evidence of ineffective assistance of counsel does not constitute "newly discovered evidence" under Rule 33 unless such evidence was in fact unknown to the defendant at the time of trial. The government draws the court's attention to defendant's own representations that his motion is based upon facts known but unappreciated at the time of trial. In such cases, the government argues that the seven day period applies. Because defendant filed his motion over four years after the jury rendered its verdict, the government argues that defendant's motion is procedurally time-barred.

 Defendant's motion presents a twofold inquiry. As an initial matter, the court must determine whether evidence of ineffective assistance of counsel known to the defendant at the time of trial constitutes "newly discovered evidence" under Rule 33. In the second stage of the inquiry, the court must ...


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