No. 94-9247

In the Supreme Court of the United States

OCTOBER TERM, 1995

CHARLES CARLISLE, PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS

BRIEF FOR THE UNITED STATES

DREW S. DAYS, III
Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney
General

MICHAEL R. DREEBEN
Deputy Solicitor General

PAUL A. ENGELMAYER
Assistant to the Solicitor
General

DAVID S. KRIS
Attorney

Department of Justice
Washington, D.C. 20530
(202)514-2217

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QUESTION PRESENTED

Whether a district court has authority to grant a
post-verdict motion for judgment of acquittal filed
outside the time limits prescribed by Federal Rule of
Criminal Procedure 29(c).             

(I)

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TABLE OF CONTENTS

Page

Opinions below . . . . 1
Jurisdiction . . . . 1
Rule involved . . . . 2
Statement . . . . 3
Summary of argument . . . . 10
Argument:
A district court lacks authority to grant a post-
verdict motion for a judgment of acquittal filed
outside the time limits prescribed by Federal Rule
of Criminal Procedure 29(c) . . . . 12
A. Rule 29(c) and Rule 45(b) and this Court's
decisions establish that a district court lacks
the authority to grant an untimely motion
for judgment of acquittal . . . . 14
B. There is no source of judicial authority
to override the time limit mandated by
Rule 29(c) . . . . 24
c.  Rule 29(c)'s time limit advances valid sys-
temic interests while preserving a defen-
dant's right to challenge the sufficiency of
the evidence on appeal . . . . 36
Conclusion . . . . 43
Appendix . . . . 1a

TABLE OF AUTHORITIES

Cases:

Arizona v. Manypenny, 672 F.2d 761 (9th Cir.),
cert. denied, 459 U.S. 850 (1982) . . . . 13, 27
Bank of Nova Scotia v. United States, 487 U.S.
250 (1988) . . . . 27, 32, 33, 36 -37
Berman v. United States, 378 U.S. 530 (1964) . . . . 26, 27, 41
Brock v. Pierce County, 476 U.S. 253 (1986) . . . . 34
Browder v. Director, Dep't of Corrections,
434 U.S. 257 (1978) . . . . 19

(III)

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IV

Cases-Continued:               

Page

Brown v. Allen, 344 U.S. 443 (1953) . . . . 41
Chambers v. NASCO, Inc., 501 U.S. 32 (1991) . . . . 33
Coleman v. Thompson, 501 U.S. 722 (1991) . . . . 41
Fallen v. United States, 378 U.S. 139 (1964) . . . . 24, 25
Herrera v. Collins, 113 S. Ct. 853 (1993) . . . . 17
Houston v. Lack, 487 U.S. 266 (1988) . . . . 25, 26
Jackson v. Virginia, 443 U.S. 307 (1979) . . . . 38
Libretti v. United States, 116 S. Ct. 356 (1995) . . . . 14
Miner v. Atlass, 363 U.S. 641 (1960) . . . . 28
Moody v. United States, 874 F.2d 1575 (11th Cir.
1989), cert. denied, 493 U.S. 1081 (1990) . . . . 3l
Palermo v. United States, 360 U.S. 343 (1959) . . . . 34
Palko v. Connecticut, 302 U.S. 319 (1937) . . . . 37
Pennsylvania Bureau of Correction v. United
States Marshals Service, 474 U.S. 34 (1985) . . . . 32
Santana v. United States, 385 U.S. 848 (1966) . . . . 27
Sparf v. United States, 156 U.S. 51 (1895) . . . . 35
State v. Meen, 171 Wis. 36 (1920) . . . . 35
Strickland v. Washington, 466 U.S. 668 (1984) . . . . 39
Temple v. United States, 386 U.S. 961 (1967) . . . . 27
Thomas v. Am, 474 U.S. 140 (1985) . . . . 33
United States, Ex parte, 101 F.2d 870 (7th Cir.),
aff'd by an equally divided Court sub nom.
United States v. Stone, 308 U.S. 519 (1939) . . . . 34, 35 
United States v. Addonizio, 442 U.S. 178 (1979) . . . . 30
United States v. Alvarez-Sanchez, 114 S. Ct. 1599
(1994) . . . . 14
United States v. Coleman, 811 F.2d 804 (3d Cir.
1987) . . . . 13
United States v. Cox 957 F.2d 264 (6th Cir. 1992) . . . . 39
United States v. Davis:
583 F.2d 190 (5th Cir. 1978) . . . . 39
992 F.2d 635 (6th Cir.), cert. denied, 114 S. Ct.
265 (1993) . . . . 8, 9, 15, 20

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V

Cases-Continued:               

Page

United States v. DiBernardo, 880 F.2d 1216 (11th
Cir. 1989) . . . . 13
United States v. Fagan, 821 F.2d 1002 (5th Cir.
1987), cert. denied, 484 U.S. 1005 (1988) . . . . 13, 39
United States v. Frady, 456 U.S. 152 (1982) . . . . 39
United States v. Fullerton, 25 Fed. Cas. 1225
(C.C.S.D.N.Y. 1870) (No. 15,176) . . . . 35
United States v. Giampa, 758 F.2d 928 (3d Cir.
1985) . . . . 13
United States v. Godoy, 678 F.2d 84 (9th Cir. 1982),
cert. denied, 464 U.S. 959 (1983) . . . . 13
United States v.. Hasting, 461 U.S. 499 (1983) . . . . 33, 34
United States v. Hocking, 841 F.2d 735 (7th Cir.
1988) . . . . 13                                      
United States v. Johnson, 487 F.2d 1318 (5th Cir.),
cert. denied, 419 U.S. 825 (1974) . . . . 13
United States v. Keane, 852 F.2d 199 (7th Cir.
1988), cert. denied, 492 U.S. 928 (1989) . . . . 22
United States v. Locke, 471 U.S. 84 (1985) . . . . 40
United States v. Mayer, 235 U.S. 55 (1914) . . . . 22, 30, 31
United States v. Morgan, 346 U.S. 502 (1954) . . . . 30, 31
United States v. Muniz, 60 F.3d 65 (2d Cir. 1995) . . . . 39
United States v. Nobles, 422 U.S. 225 (1975) . . . . 34
United States v. Olano, 113 S. Ct. 1770 (1993) . . . . 38
United States v. Overmyer, 867 F.2d 937 (6th Cir.),
cert. denied, 493 U.S. 813 (1989) . . . . 38, 39
United States v. Payner, 447 U.S. 727 (1980) . . . . 33
United States v. Quintero-Barraza, 57 F.3d 836
(9th Cir. 1995) . . . . 39
United States v. Robinson, 361 U.S. 220 (1960) . . . . 10, 16,
18, 19, 20, 37, 39, 41
United States v. Santistevan, 39 F.3d 250 (l0th
Cir. 1994) . . . . 38
United States v. Smith, 331 U.S. 469 (1947) . . . . 10, 16, 17,
18, 22, 32, 39, 42

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Cases-Continued:                

Page

United States v. South, 28 F.3d 619 (7th Cir. 
1994) . . . . 39
United States v. Steven-s, 978 F.2d 565 (l0th Cir.
1992) . . . . 13
United States v. Zolicoffer, 869 F.2d 771 (3d Cir.),
cert. denied, 490 U.S. 1113 (1989) . . . . 38-39

Constitution, statutes and rules:

U.S. Const.:
Art. III . . . . 32
Amend. V . . . . 34, 36
Due Process Clause . . . . 36, 37
All Writs Act, 28 U.S.C. 1651 . . . . 3, 29, 1a
Jencks Act, 18 U.S.C. 3500 . . . . 34
Rules Enabling Act, 28 U.S.C. 2071 et seq.:
28 U.S.C. 2071(a) . . . . 29
28 U.S.C. 2072 . . . . 29
18 U.S.C. 3143(b) . . . . 40
18 U.S.C. 3143(b)(1)(A) . . . . 40
18 U.S.C. 3143(b)(1)(B) . . . . 40
18 U.S.C. 3553(f) . . . . 9
21 U.S.C. 841(b)(1)(B) . . . . 7, 9
21 U.S.C. 846 . . . . 3
28 U.S.C. 2255 . . . . 10, 31, 39
Fed. R. App. P.:
Rule 4 . . . . 19
advisory committee's note . . . . 26
Rule 4(b) . . . . 19, 25
Rule 4(c) . . . . 26
Fed. R. Crim. P.:
Rule 2 . . . . 3, 24, 25, 26, 41, 1a
Rule 16 . . . . 34
Rule 27 (preliminary draft, 1943) . . . . 21
Rule 29 . . . . 2, 11, 12, 13, 14, 20, 22, 24, 25, 41
advisory committee's note . . . . 21, 23, 35
Rule 29(a) . . . . 2, 5, 9, 12, 15, 38

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VII

Rules-Continued:               

Page
  
Rule 29(b) . . . . 2, 12, 15, 35, 42
Rule 29(c) . . . . passim
Rule 29.1 . . . . 28
advisory committee's note . . . . 28
Rule 31 (second preliminary draft, 1944) . . . . 21
Rule 33 . . . . passim, 1a
advisory committee's note . . . . 23
Rule 34 . . . . 19
Rule 35 . . . . 19
Rule 37 . . . . 19, 25, 36
Rule 37(a)(2) . . . . 18
Rule 45 . . . . 3, 20, 22, 24, 25, 2a
advisory committee's note . . . . 20, 22, 23
Rule 45(a) . . . . 5, 2a
Rule 45(h) . . . . passim, 3a
Rule 52 . . . . 34, 37
Rule 52(a) . . . . 33
Rule 57 . . . . 3, 27, 28, 29, 4a
advisory committee's note . . . . 28
Local Rules of Practice and Procedure, United States
District Court for the Western District of Michigan
(Aug. 1991) . . . . 29

Miscellaneous:

Sara Sun Beale, Reconsidering Supervisory Power
in Criminal Cases: Constitutional and Statutory
Limits on the Authority of the Federal Courts,
84 Colum. L. Rev. 1433 (1984) . . . . 32
2 Joel Prentiss Bishop, New Criminal Procedure
(2d ed. 1913) . . . . 35
CIS Records of the Judicial Conference of the United .
States, Committee on Rules of Practice and.
Procedure, 1935-1988-Committee on Criminal 
Procedure, CM 3710-70 . . . . 23
William L. Clark, Jr., Handbook of Criminal
Procedure (2d ed. 1918) . . . . 35

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VIII

Miscellaneous-Continued:

Page

Drafting History of the Federal Rules of Criminal
Procedure (Madeline J. Wilken and Nicholas Triffin
eds., 1991):
Vol. 1 . . . . 21
Vol. 4 . . . . 21
Yale Kamisar, Wayne R. LaFave, & Jerold H.
Israel, Modern Criminal Procedure (1994) . . . . 30
Note, Reservation of Motion for Directed Verdict in
Federal Criminal Trials, 49 Yale L.J. 733 (1940) . . . . 35
4 Mark S. Rhodes, Orfield's Criminal Procedure
under the Federal Rules (2d ed. 1987) . . . . 23
1 James Fitzjames Stephen, A History of the
Criminal Law of England (1883) . . . . 34
Charles Alan Wright, Federal Practice and Procedure
(Criminal) (2d ed. 1982):
Vol. 2 . . . . 39
Vol. 3 . . . . 17
1 Elijah N. Zoline, Federal Criminal Law and
Procedure (1921) . . . . 35

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In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 94-9247

CHARLES CARLISLE, PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (J.A. 46-49) is
reported at 48 F.3d 190. The opinions of the district
court first denying (J.A. 15-22) and later granting
(J.A. 37-44) petitioner's motion for judgment of ac-
quittal are not reported.

JURISDICTION

The judgment of the court of appeals was entered on
February 21, 1995. The petition for a writ of certio-
rari was filed on May 12, 1995, and was granted on
September 27, 1995 (116 S. Ct. 40). The jurisdiction. of
this Court rests on 28 U.S.C. 1254(1).

(1)

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2

RULE INVOLVED

Federal Rule of Criminal Procedure 29 provides:

Motion for Judgment of Acquittal

(a) Motion Before Submission to Jury.
Motions for directed verdict are abolished and
motions for judgment of acquittal shall be used in
their place. The court on motion of a defendant or of
its own motion shall order the entry of judgment of
acquittal of one or more offenses charged in the
indictment or information after the evidence on either
side is closed if the evidence is insufficient to sustain
a conviction of such offense or offenses. If a
defendant's motion for judgment of acquittal at the
close of the evidence offered by the government is not
granted, the defendant may offer evidence without
having reserved the right. 

(b) Reservation of Decision on Motion. The
court may reserve decision on a motion for judgment
of acquittal, proceed with the trial (where the motion
is made before the close of all the evidence), submit
the case to the jury and decide the motion either
before the jury returns a verdict or after it returns
a verdict of guilty or is discharged without having
returned a verdict. If the court reserves. decision, it
must decide the motion on the basis of the evidence at
the time the ruling was reserved.

(c) Motion After Discharge of Jury. If the jury
returns a verdict of guilty or is discharged without
having returned a verdict, a motion for judgment of
acquittal may be made or renewed within 7 days after
the jury is discharged or within such further time as
the court may fix during the 7-day period. If a verdict
of guilty is returned the court may on such motion

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set aside the verdict and enter judgment of acquittal.
If no verdict is returned the court may enter judg-
ment of acquittal. It shall not be necessary to the
making of such a motion that a similar motion has
been made prior to the submission of the case to the
jury.

(d) Same: Conditional Ruling on Grant of
Motion. If a motion for judgment of acquittal after
verdict of guilty under this Rule is granted, the court
shall also determine whether any motion for a new
trial should be granted if the judgment of acquittal
is thereafter vacated or reversed, specifying the
grounds for such determination. If the motion for a
new trial is granted conditionally, the order thereon
does not affect the finality of the judgment. If the
motion for a new trial has been granted conditionally
and the judgment is reversed on appeal, the new trial
shall proceed unless the appellate court has otherwise
ordered. If such motion has been denied conditionally,
the appellee on appeal may assert error in that denial,
and if the judgment is reversed on appeal, subsequent
proceedings shall be in accordance with the order of
the appellate court.

The texts of Federal Rules of Criminal Procedure
2, 33, 45, and 57, and the text of the All Writs Act, 28
U.S.C. 1651, are reprinted at App., infra, la-5a.

STATEMENT

Following a jury trial, petitioner was convicted in
the United States District Court for the Western
District of Michigan of conspiring to possess rnari-    
juana with the intent to distribute it, in violation of 21
U.S.C. 846. He filed a post-verdict motion for judg-
ment of acquittal outside the time limit prescribed by
Federal Rule of Criminal Procedure 29(c), which the

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4

district court denied, J.A. 23, but later reconsidered
and granted, J.A. 45. The court of appeals reversed
and remanded for reinstatement of the verdict and for
sentencing, on the grounds that the district court had
lacked authority to consider an untimely motion for a
judgment of acquittal. J.A. 46-49.
1. Petitioner's jury trial been on June 30, 1993.
The evidence at trial, with respect to petitioner's
participation in the conspiracy, showed that, on
April 10, 1993, petitioner, Dolores Rupert (peti-
tioner's common-law wife), Amelia Ramon (Rupert's
mother), and Thomas Crawford arrived at the home
that petitioner shared, with Rupert. Ramon and
Rupert arrived by car, and Crawford, who was work-
ing as a police informant and wearing a concealed tape
recorder, followed them there in a truck containing
approximately 270 pounds of marijuana. Petitioner
was present at the home. Rupert instructed' Craw-
ford where to park the truck, stating: "Okay, just pull
out and [petitioner] says to go down the street and
just park for awhile because he said he's heard over
the scanner, there's some cops around here."
Crawford complied with petitioner's suggestion. J.A
16-18; Gov't C.A. Br. 3-4. Crawford then returned to
the house and was introduced to petitioner. Crawford,
petitioner, Rupert, and Ramon discussed where to
park the truck for the evening in light of petitioner's
expressed concern that police were in the area, and
how to secure the truck. 1. Petitioner agreed that the
truck should be parked behind Ramon's house, "right
down the drive." He explained to the others that

___________________(footnotes)

1 Petitioner's counsel had conceded in his opening state-
ment that petitioner knew at the time of the offense that the
truck contained marijuana. J.A. 16.

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5

"[w]e don't want to take no chances," and that "I won't
take no chances." Petitioner also inquired of the
others whether a key held by Ramon unlocked a
padlock on the back of the truck, and he was informed
that it did. Petitioner and Ramon then drove to
Ramon's house, with Crawford following in the truck
bearing the marijuana. After Crawford parked the
truck behind Ramon's house as suggested by peti-
tioner, petitioner drove Ramon and Crawford to a
hotel. J.A. 17-18.
Petitioner did not move during the trial for a
judgment of acquittal under Federal Rule of Criminal
Procedure 29(a). On July 13, 1993, the jury returned a
verdict of guilty, and the court discharged it that
same day. On July 23, 1993, petitioner fled a post-
verdict motion for judgment of acquittal. That motion
was untimely, because it was filed one day after the
expiration of the seven-day period following the
discharge of the jury that Rule 29(c) allows for such
motions. 2.  Petitioner's motion contended that, al-
though the evidence had been sufficient to establish
the existence of a conspiracy to possess and distri-
bute marijuana, it had not been sufficient to establish
that he had knowingly participated in that conspiracy.
J.A. 15. The government responded that, because peti-
tioner's motion had been filed outside the time limit
prescribed by Rule 29(c), the court lacked jurisdiction
                                                            
___________________(footnotes)

2  Rule 29(c) provides that "a motion for judgment of
acquittal may be made or renewed within 7 days after the jury
is discharged or within such further time as the court may fix
during the 7-day period." Federal Rule of Criminal Procedure
45(a) provides that "Saturdays, Sundays and legal holidays
shall be excluded" from the seven-day period. Excluding the
weekend of July 17-18, 1993, the seven-day period expired on
July 22, 1993.

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to consider it, and, alternatively, that the evidence
had been sufficient. Gov't C.A. Br. 1.
In an opinion issued on August 24, 1993, the district
court did not address the timeliness of petitioner's
motion, but denied that motion on the ground that the
evidence had been sufficient for "a rational trier of
fact [to] find beyond a reasonable doubt that [peti-
tioner] knew about the conspiracy, and that [peti-
tioner] knowingly and voluntarily joined the con-
spiracy." J.A. l8 The court explained that

[petitioner] was more than just present during the
conspiracy.  He took actions to help hide the
contraband from the police. He stated his inten-
tion to not "take chances." He inquired whether a
key unlocked the back of the. truck which con-
tained the marijuana. And finally, * * * [peti-
tioner's] use of the word "we" in a statement made
to other conspirators during a conversation about
where to put-the truck full of marijuana to avoid
the place [sic]; "we don't want to take no chances,"
could indicate joinder with the conspiracy to a
rational trier of fact. I find that [petitioner's]
hearsay statement concerning the scanners, his
statements evincing a desire to avoid the police,
and the fact that he drove a conspirator (his
common law mother-in-law) to her home, and then
drove two conspirators to a hotel and dropped them
off, is sufficient for a rational trier of fact to find
that he knowingly and voluntarily joined the
conspiracy.
         
J.A. 21.
2. On October 14, 1993, petitioner appeared for
sentencing. Before that time, the district court had
been provided with a presentence investigation report

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(PSR). That report calculated petitioner's sentenc-
ing range under the Sentencing Guidelines to be 63-78
months' imprisonment and noted that, because of the
amount of marijuana involved in the offense, peti-
tioner faced a mandatory minimum sentence of five
years' imprisonment under 21 U.S.C. 841(b)(1)(B).
The PSR also recounted petitioner's military service
in Vietnam. J.A. 35.
At the sentencing hearing, the district court
announced that it was reversing its prior ruling on
the sufficiency of the evidence and that it was now
granting petitioner a judgment of acquittal on the
ground that the evidence was insufficient to establish
that petitioner had joined the conspiracy. J.A. 29-34. 3.

___________________(footnotes)

3 The court's written opinion explaining that decision
summarized the evidence in the same manner as its earlier
written opinion, compare J.A. 16-18 with J.A. 38-40, and the
court reiterated its conclusion that the evidence had been
sufficient to establish petitioner's knowledge of the marijuana-
distribution conspiracy.  J.A. 41. But, the court now con-
cluded, the evidence had not established that petitioner had
joined that conspiracy (J.A. 43-44):

The government produced no evidence that [petitioner]
entered into an agreement with any member of the
conspiracy. * * * [H]e was clearly present during the
conspiracy, and the jury could have found that he knew
about it. However, in the course of hours of tape recorded
conversations, no conspirators suggest that [petitioner] is
involved in the conspiracy. There was no evidence that he
was involved in arranging the transport of the marijuana to
Michigan. In fact, Crawford testified that prior to coming
to Michigan, he had not heard of [petitioner]. [Petitioner]
never handled the drugs or the truck which contained
them, and there was no evidence that [petitioner] was
to benefit from the conspiracy. I find that [petitioner's]
hearsay statement concerning the scanners, and the fact
that he drove a conspirator (his common law mother-in-

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8

After discussing its new ruling, the court noted that
it had learned "for the first time when I read the pre-
sentence report that [petitioner] served his country
in Vietnam in 1967 or 1968, and that while he was
there he received the Bronze Star," J.A. 35. The
court added that "'[t]he Court doesn't meet too many
Bronze Star recipients." Ibid. Addressing peti-
tioner, the court concluded the hearing by saying, "on
behalf of my country I thank you for your service in
Vietnam. This is the end of this proceeding." J.A. 35-
36.                                    
The court later filed an opinion and judgment in
support of its oral ruling.  J.A. 37-45. The court
acknowledged that petitioner had filed his motion for
a judgment of acquittal outside of the seven-day filing
deadline prescribed by Rule 29(c). The court stated,
however, that

I can conceive of no prejudice to the United States
which will result from consideration of a motion
that is one day late in this case. Because I believe
that refusal to hear this motion would result in
grave injustice, and because the Rule permits the
Court to extend the deadline, I will consider this
motion as if it were filed in a timely manner.

J.A. 37 n.1.
3. The court of appeals reversed. J.A. 4649. The
court noted that, under its decision in United States
v. Davis, 992 F.2d 635 (6th Cir.), cert. denied, 114 S.
Ct. 265 (1993), a district court- lacks jurisdiction to
grant a motion for judgment of acquittal filed outside

___________________(footnotes)

law) to her home, and then drove two conspirators to a
hotel and dropped them off, is insufficient to establish that
he knowingly and voluntarily joined the conspiracy.

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the time limit set by Rule 29(c). J.A. 48. In Davis,
the court noted that Rule 29(c) requires a defendant
to make a post-verdict motion for judgment of ac-
quittal within seven days after the discharge of the
jury, and that Federal Rule of Criminal Procedure
45(b) prohibits the court from retroactively extending
that period. 992 F.2d at 639-640; see Fed. R. Crim. P.
45(b) (district court "may not extend the time for
taking any action under Rules 29, 33, 34 and 35, except
to the extent and under the conditions stated in
them"). Davis also held that Rule 29(c) implicitly
forbids a district court from sua sponte entering a
judgment of acquittal after a verdict. It reasoned
that, while Rule 29(a) expressly authorizes a district
court to enter a judgment of acquittal on its own
motion before a case is submitted to the jury, "there
is no provision authorizing the court to act on its own
initiative after the case is submitted to the jury." 992
F.2d at 639; see also J.A. 48.
Although both the government and petitioner had
briefed the issue whether the evidence was sufficient,
Gov't C.A. Br. 9-11; Pet. C.A. Br. 9-15, the court of
appeals did not address that issue.  Instead, it
remanded for reinstatement of the verdict and for
resentencing. J.A. 49. 4.

___________________(footnotes)

4 On June 27, 1995, while the petition for certiorari was
pending, the district court convened a sentencing proceeding
and sentenced petitioner, inter alia, to six months' imprison-
ment. J.A. 50-51. The court departed downward based on
petitioner's military service in Vietnam and on the "aberrant"
nature of petitioner's conduct in this case. 6/27/95 Sent. Tr.
14-19. The court also held that the requirements under 18
U.S.C. 3553(f) for imposing a sentence below the mandatory
minimum sentence of five years' imprisonment, see 21 U.S.C.
841(b)(l)(B), had been met. At the time it imposed sentence,

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SUMMARY OF ARGUMENT

The question presented in this case is whether a
district court has authority to grant a defendant's
post-verdict motion for judgment of acquittal tiled
outside the seven-day time limit prescribed by
Federal Rule of Criminal Procedure 29(c). The text
of the Federal Rules of Criminal Procedure answers
that question. Rule 29(c) provides that "a motion for
judgment of acquittal maybe made or renewed within
7 days after the jury is discharged or within such
further time as the court may fix during the 7-day
period." Rule 45(b) makes the seven-day time limit in
Rule 29(c) mandatory. It states that a district court
"may not extend the time for taking any action under
Rule[] 29 * * *, except to the extent and under the
conditions stated in [that Rule]." Those Rules, read
in tandem, preclude a district court from entertaining
a motion for a judgment of acquittal more than seven
days after the discharge of the jury, absent prior,
timely invocation of its authority.
The mandatory character of the seven-day time
limit of Rule 29(c) is reinforced by this Court's
decisions in United States v. Smith, 331 U.S. 469
(1947), and United States v. Robinson, 361 U.S. 220
(1960). In Smith, the Court construed parallel lan-
guage in Federal Rule of Criminal Procedure 33
imposing a five-day time limit upon motions for a new
trial. It held that Rule 33 prescribes "precise times"
(331 U.S. at 473 n.2) within which the judicial power
to order a new trial is confined, whether that action is

___________________(footnotes)

the district court also dismissed as premature a motion pur-
suant to 28 U.S.C. 2255 to vacate and set aside judgment that
petitioner had filed on June 2, 1995. United States v. Carlisle,
No. 1:93:CR:66-02 (W.D. Mich. June 27, 1995). 

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taken in response to a defendant's motion or sua
sponte. In Robinson, the Court held that, because the
period for taking an appeal was identified in Rule 45(b)
as a period that a district court could not extend, the
ten-day time period for filing a notice of appeal set by
the Federal Rules was mandatory and jurisdictional.
Under Robinson, the seven-day time limit set by
Rule 29(c) is similarly binding, because Rule 29 is
listed in Rule 45(b) as a Rule whose time limit may
not be extended except as provided in Rule 29(c) itself.
No provision of the Federal Rules of Criminal Pro-
cedure overrides Rule 29(c)'s framework governing
motions for acquittal. Nor does the power to. issue a
writ of coram nobis authorize action outside of the
time limits of Rule 29. Coram nobis is available when
facts that would render a trial court's decision ir-
regular and invalid were not brought to the court's
attention, and where no alternative remedies are
available. An untimely claim of evidentiary insuffi-
ciency, which could not be heard consistent with the
structure of the Rules, does not meet the require-
ments for that extraordinary writ. The district court
likewise may not use its "supervisory power" to
grant an untimely Rule 29(c) motion. "Supervisory
power" cannot be used when it would circumvent or
conflict with the precise requirements of the Federal
Rules of Criminal Procedure.
Petitioner's reliance on policy concerns to avoid
enforcement of Rule 29(c)'s time limit is misplaced. If
the Rule as presently drafted is deemed to work
unfair or harsh results, the drafters remain free to
amend it. In any event, petitioner's concerns are
misguided. The time limit serves valid interests in
the criminal justice system, including the prompt
resolution of proceedings in the trial courts and

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12

sparing those courts the need to decide whether parti-
cular delinquent filings were or were not justified.
And the enforcement of the Rule's time limit does not
foreclose review of claims of evidentiary insuffi-
ciency. It permits review of a defendant's claim in the
court of appeals under a plain error standard, and
leaves open collateral review when a defendant can
meet the requirements for such relief.

ARGUMENT

A DISTRICT COURT LACKS AUTHORITY TO
GRANT A POST-VERDICT MOTION FOR A
JUDGMENT OF ACQUITTAL FILED OUTSIDE
THE TIME LIMITS PRESCRIBED BY FEDERAL
RULE OF CRIMINAL PROCEDURE 29(c)

Federal Rule of Criminal Procedure 29 compre-
hensively sets out the time limits for the making of
a motion for a judgment of acquittal. Subsection (a)
allows the court to enter a judgment of acquittal
during the trial, "on motion of a defendant or of its
own motion," at the close of the evidence offered by
either side. After the jury has been discharged, the
court's power to act on a motion for judgment of
acquittal is defined by subsections (b) and (c). Sub-
section (b) allows a court to act on a motion for
judgment of acquittal after the jury has been dis-
charged if the court has reserved decision on a prior
motion for judgment of acquittal. Subsection (c) per-
mits a court to entertain such a motion when it is
made or renewed within seven days after the
discharge of the jury, or where the court, during that
seven-day period, has extended the deadline for
making such a motion.

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13

Once seven days have expired after the jury's
discharge, the structure of Rule 29 forbids a district
court from entertaining a motion for judgment of
acquittal, unless the court has either reserved de-
cision on a prior, timely motion or has extended the
time for making such a motion within seven days
after the verdict. That Rule fosters certainty,
clarity, and efficiency in the resolution of criminal
proceedings in the trial court, while leaving a 
defendant who has not made a timely post-verdict
motion for judgment of acquittal free to raise a claim
of evidentiary insufficiency on appeal or, in some
circumstances, on collateral review. Because peti-
tioner did not submit a timely motion for judgment of
acquittal in the district court in this case, the court
of appeals correctly determined that the district
court lacked jurisdiction to entertain it. 5.

___________________(footnotes)

5 That holding is consistent with the approach taken in
United States v. Stevens, 978 F.2d 565, 569 (10th Cir. 1992);
United States v. Hocking, 841 F.2d 735, 736-737 (7th Cir. 1988);
United States v. Fagan, 821 F.2d 1002, 1011-1012 & n.7 (5th
Cir. 1987), cert. denied, 484 U.S. 1005 (1988); United States v.
Godoy, 678 F.2d 84, 88 (9th Cir. 1982), cert. denied, 464 U.S.
959 (1983); and United States v. Johnson, 487 F.2d 1318, 1321
(5th Cir.), cert. denied, 419 U.S. 825 (1974). But see United
States v. Coleman, 811 F.2d 804, 806-807 (3d Cir. 1987); United
States v. Giampa, 758 F.2d 928, 934-935, 936 n.1 (3d Cir. 1985);
and Arizona v. Manypenny, 672 F.2d 761, 766 (9th Cir.), cert.
denied, 459 U.S. 850 (1982) (all suggesting, in factually dis-
tinguishable contexts, the existence of some inherent power
to consider an untimely motion); see also United States v. 
DiBernardo, 880 F.2d 1216, 1225 n.4 (11th Cir. 1989) (dicta in
case involving Rule 33).

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14

A. Rule 29(c) And Rule 45(b) And This Court's
Decisions Establish That A District Court
Lacks The Authority To Grant Au Untimely
Motion For Judgment Of Acquittal

1. When interpreting a statute or a Federal Rule,
this Court look "first and foremost to its text."
United States v. Alvarez-Sanchez, 114 S. Ct. 1599,
1603 (1994); see Libretti v. United States, 116 S. Ct.
356, 362 (1995). The texts of Rule 29 and Rule 45(b),
read together, make clear that a district court lacks
jurisdiction to consider a defendant's motion for
judgment of acquittal made more than seven days
after the discharge of the jury, except where the
court has extended that deadline before the seven-day
period has expired. Rule 29(c) provides that a de-
fendants motion for judgment of acquittal "may be
made or renewed within 7 days after the jury is
discharged or within such further time as the court
may fix during the 7-day period." Rule 45(b), which
governs the enlargement of time limits under the
Federal Rules of Criminal Procedure, provides that
the district court "may not extend the time for taking
any action under Rules 29, 33, 34 and 35, except to the
extent and under the conditions stated in them."
Thus, a district court may not retroactively extend
the seven-day deadline prescribed by Rule 29(c) in
order to convert" an out-of-time motion into a timely
one under the Rule.
Nor may the district court treat the defendant's
untimely motion as one made by the court, and
address it on that basis. The text of Rule 29 leaves no
room for a district court to act on its own initiative to
enter a judgment of acquittal more than seven days
after the discharge of the jury, in the absence of the

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15

prior reservation of such a motion or the extension of
the time for it to be made. Rule 29(a), which applies to
a motion made before submission of the case to the
jury, refers explicitly to the court's power to act "of
its own motion" to enter a judgment of acquittal.
Rule 29(c), which governs the period after the dis-
charge of the jury, does not refer to action initiated
by the court. It does, however, describe procedures
that govern any "motion for a judgment of acquittal."
The most reasonable construction of the Rule is thus
that it includes action by the court, as well as the
defendant, to make or renew a motion for a judgment
of acquittal after the return of the jury's verdict.
Under that construction, the court's power to act of
its own motion after the verdict is necessarily limited
to the seven-day period established by Rule 29(c). A
court may therefore enter a judgment of acquittal, or
extend the time for consideration of that action,
within seven days of the discharge of the jury. The
court retains no power to act for an indefinite time
thereafter. 6.

___________________(footnotes)

6 It is possible, in the alternative, to read the term
"motion" in Rule 29(c) to refer only to a motion by the de-
fendant. Under that reading, Rule 29(c)'s omission of any
reference to the court's own motion, juxtaposed against Rule
29(a)'s express authorization of the court's own motion, implies
that after the discharge of the jury the court lacks any power
to enter a judgment of acquittal on its own initiative (except
when, pursuant to Rule 29(b), the court had reserved ruling on
its own pre-verdict motion). See United States v. Davis, 992
F.2d 635, 639 (6th Cir.) (adopting that interpretation), cert.
denied, 114 S. Ct. 265 (1993). Under that reading of Rule 29(c),
absent a reserved motion at trial, a district court may never act
"of its own motion" to acquit a defendant after the discharge of
the jury.

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16

2. This Court's decisions in United States v.
Smith, 331 U.S. 469 (1947), and United States v.
Robinson, 361 U.S. 220 (1960), strongly support the
conclusion that a district court lacks jurisdiction to
grant a post-verdict motion for judgment of acquittal
filed outside the time limits prescribed by Rule 29(c).
In Smith, this court held that a district court lacks
power to order a new trial outside the time limit set
by Federal Rule of Criminal Procedure 33. That Rule
provided-in language paralleling that of Rule 29(c)
-that a motion for a new trial based on grounds other
than newly discovered evidence "shall be made within
5 days after verdict or finding of guilty or within such
further time as the court may fix during the 5-day
period." 331 U.S. at 472. 7. The defendant in Smith had
moved for a new trial, but that motion had been denied,
and the conviction had been upheld on appeal.
Following affirmance of the defendant's conviction on
appeal, however, the district court sua sponte issued
an order granting a new trial. The court of appeals
denied the government's petition for writs of manda-
mus and prohibition to vacate the new trial order. Id.
at 470-471.
This Court reversed, rejecting the defendant's
argument that, "because the literal language of the
Rule places the five-day limit only on the making of
the motion, it does not limit the power of the court
later to grant the motion." 331 U.S. at 473. At
                                    
___________________(footnotes)

7 Rule 33 was amended in 1966 to increase to seven days
the time period within which a motion for a new trial based on
grounds other than newly discovered evidence shall be made.
See Fed. R. Crim. P.33 ("A motion for a new trial based on
any other grounds shall be made within 7 days after verdict or
finding of guilty or within such further time as the court may
fix during the 7-day period.").

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17

common law, the Court noted, a court's power over its
judgments expired with the "term of court." While an
earlier rule of procedure had given a defendant three
days within which to move for a new trial, and while
the Federal Rules had extended that time to five days
(Rule 33) and concomitantly repealed the term-of-
court limitation (Rule 45(c)), the Federal Rules had
not expanded the power of the trial court "to grant
new trials on its own motion * * * indefinitely." Id.
at 473-474. Rather, the Court held, the Federal Rules
prescribe "precise times" and "constant time periods"
within which the judicial power to order a new trial
must be "confine[d]." Id. at 473 n.2. 8.
The Court in Smith also observed that policy
considerations militate against holding "that the
court has a continuing power on [its] own initiative to
grant what the defendant has not the right to go into
open court and ask." 331 U.S. at 475. First, a rule
"which deprived a judge of power to do what was asked
when request was made by the person most con-
cerned, and yet allowed him to act without petition,"
would raise serious constitutional issues, which
counseled against such an interpretation. Id. at 474.
Furthermore, the Court observed,

[t]o approve the practice followed in this case
would almost certainly subject trial judges to pri-
vate appeals or application by counsel or friends of
one convicted. We think that expiration of the
time within which relief can openly be asked of

___________________(footnotes)

8 See 3 Charles Alan Wright, Federal Practice and
Procedure (Criminal)  558, at 360 (2d ed. 1982) ("The time
limitations of Rule 33 are jurisdictional."); id. at 361 n.1
(collecting cases); cf. Herrera v. Collins, 113 S. Ct. 853, 865
(1993) ('We have strictly construed the Rule 33 time limits.").

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18

the judge, terminates the time within which it
can properly be granted on the court's own
initiative. If the judge needs time for reflection
as to the propriety of a new trial, he is at liberty
to take it before denying a timely made motion
therefor.

Id. at 475 (emphasis added). 9.
In Robinson, the Court held that the time limit
within which a defendant may file a notice of appeal
may not be extended beyond the ten-day period
following entry of judgment set by Federal Rule of
Criminal Procedure 37(a)(2). The lower courts in
Robinson had held that, because the defendants'
failure to file notices of appeal until 11 days after that
deadline resulted. from "excusable neglect," the
notices of appeal would be deemed valid. This Court
reversed, relying on Rule 45(b). Rule 45(b), the Court

___________________(footnotes)
         
9 The Court in Smith noted a third policy consideration
supporting its reading of Rule 33: the interest in ensuring that
appellate courts review only those district court decisions that
are final. If a district court were empowered, after an appeal,
to "set aside all that was the basis of appeal," as had occurred in
Smith itself, the Court noted that finality would not be assured.
331 U.S. at 474; see ibid. ("It is not the function of appellate
courts to review tentative decisions of trial courts").  Noting
that third policy justification, petitioner argues (Br. 22) that
Smith bars only those new trial orders made "after the appeal
[has been] decided." Smith, however, held more broadly that
a district court's power to order a new trial in cases not
involving newly discovered evidence "terminates" not upon
the onset of appellate review, but upon the expiration of the
period within which a defendant couId move for such relief
under Rule 33. See. 331 U.S. at 475. See also Robinson, 361
U.S. at 225-226 (under Smith, "the power of the District Court
sua sponte to grant a new trial under Rule 33 is limited to the
time fixed in that Rule").

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19

noted, provided that certain actions could be done out
of time where the "failure to act was the result of
excusable neglect." The Court emphasized, however,
that Rule 45(b) identified specific circumstances in
which district courts could not allow acts to be done
out of time:

[T]he court may not enlarge the period for taking
any action under Rules 33, 34 and 35, except as
otherwise provided in those rules, or the period
for taking an appeal.

361 U.S. at 223 (quoting Fed. R. Crim. P. 45(b)) (em-
phasis added). Because recognizing a late notice" of
appeal "'enlarge[s]' the period for taking an appeal,"
the Court held, it was forbidden by Rule 45(b). Id. at
224. Thus, "the 10-day period prescribed by Rule
37(a)(2) is mandatory and jurisdictional." Ibid. 10.
The Court in Robinson observed that to recognize
an untimely notice of appeal would be inconsistent
with Smith, because Smith also involved a Rule with
a time limit covered by Rule 45(b)'s express bar
against enlargement. 361 U.S. at 225-226. If an un-
timely notice of appeal were held to confer juris-
diction of the appeal based on "excusable neglect," it
would follow that a finding of excusable neglect would
permit delayed action under the other Rules listed in
Rule 45(b)-Rules 33, 34, and 35. That result would
contravene Smith's holding that Rule 33 "prescribed

___________________(footnotes)

10 Rule 37 was abrogated effective July 1, 1968, and the
ten-day deadline for filing a notice of appeal in criminal cases is
today mandated by Federal Rule of Appellate Procedure 4(b).
Relying on Robinson, this Court has held that the time limits
set by Rule 4 are "mandatory and jurisdictional." Browder v.
Director, Dep't of Corrections, 434 U.S. 257,264 (1978) (quoting
Robinson, 361 U.S. at 229).

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20

precise times within which the power of the courts
must be con fined," whether that power is wielded sua
sponte or in response to a defense motion. Robinson,
361 U.S. at 225-226.
As the Sixth Circuit has noted, the "decisions in
Smith and Robinson leave little doubt concerning the
proper resolution of the question" of whether a
district court has authority to grant an untimely
motion for judgment of acquittal. United States v.
Davis, 992 F.2d 635, 639 (6th Cir.), cert. denied, 114
S. Ct. 265 (1993). When Smith and Robinson were
decided, Rule 29 was not listed in Rule 45(b). In 1966,
however, when Rule 29(c) was promulgated, Rule
45(b) was amended to add Rule 29 to the list of Rules
with regard to which courts could not extend the time
limit except as provided in those Rules. See Fed. R.
Crim. P. 45 advisory committee's note (1966 amend-
ment). Under Robinson, Rule 45(b)'s inclusion of
Rule 29 means a district court cannot grant a de-
fendant's untimely motion for judgment of acquittal,
because the seven-day time limit in Rule 29, like the
time limit at issue in Robinson, is "mandatory and
jurisdictional." 361 U.S. at 224, Permitting delayed
action under Rule 29 would also conflict with Smith's
holding that the parallel wording in Rule 33 "pre-
scribed precise times within which the power of the
courts must be confined." Id. at 226.
3. The history of Rule 29 and Rule 45 confirms
that textual understanding.  In 1940, Congress
authorized this Court to promulgate Rules of
Criminal Procedure that would become effective upon
"passive acceptance" by Congress; this Court did so
with the aid of an Advisory Committee. Robinson,
361 U.S. at 227. The Advisory Committee's pre-
liminary draft of Rule 29, issued in May 1943,

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21

contained two sections: Section (a) allowed motions
for acquittal to be granted "at any time after the
evidence on either side is closed"; Section (b) provided 
that, if the court denied such a motion, the defendant
could "renew[]" that motion "within 10 days after the
jury is discharged." 11. Based on suggestions from the
bench and bar, later versions of the Rule (including
the final version)made the time limits under the Rule
more stringent. In Section (a), the words "at any
time" were deleted, making clear that the court was
required either to reserve the motion or to act on it
before submitting the case to the jury. In Section (b),
the ten-day time period was shortened to match the
five-day period then allowed for motions for new trial
under Rule 33. 12. The Advisory Committee's decision
to strike the language allowing a motion for judgment
of acquittal to be made "at any time" and to fix instead
a five-day time limit following discharge of the jury
is persuasive evidence that the Committee expected
the time limit it set for post-verdict motions to be
mandatory, not precatory. The 1966 amendment that
increased the time limits under Rule 29(c) and Rule
33 to the current limit of seven days, see Fed. R.
Crim. P. 29 advisory committee's note (1966 amend-
ment), is also indicative of a studied selection of a 
definite time period. That deliberate approach is
inconsistent with petitioner's view that Rule 29(c)'s
time limit is meant to be "flexibly applied" (Br. 10).

___________________(footnotes)

11 See Preliminary Draft of Fed. R. Crim. P. 27 (May
1943), reprinting in 1 Drafting History of the Federal Rules of
Criminal Procedure 125 (Madeline J. Wilken and Nicholas
Triffin eds., 1991) [hereinafter Drafting History]. Early drafts
of the Rule were numbered differently from the final Rule.

12 See Second Preliminary Draft of Fed. R. Crim. P. 31
(Feb. 1944), reprinted in 4 Drafting History 121.
 
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22

The history of Rule 45 points to the same con-
clusion. At common law, a court's authority over its
judgments expired with the term of court. See Smith,
331 U.S. at 473; United States v. Mayer, 235 U.S. 557
67 (1914). 13. Rule 45 reflected a decision to "abolish[]
the expiration of a term of court as a time limitation
for the taking of any step in a criminal proceeding"
and to substitute "specific time limitations" in its
place. See Fed. R. Crim. P. 45 advisory committee's
note (1944 adoption). The purpose of establishing
fixed time limits was to avoid the uncertainty in-
herent in the term-of-court concept.  See ibid.;
United States v. Keane, 852 F.2d 199, 202 (7th Cir.
1988) (because "term-of-court" often referred to the
"period that lasted until the judges moved on to some
other city," the term limitation produced "erratic
results," depending on how late in the term the
judgment had been rendered), cert. denied, 492 U.S.
928 (1989). As this Court has explained:

The Rules, in abolishing the term rule, did not
substitute indefiniteness. On the contrary, pre-
cise times, independent of the term, were pre-
scribed. The policy of the Rules was not to ex-
tend power indefinitely but to confine it within
constant time periods. See Notes to Rules of
Criminal Procedure, Rule 45.

Smith, 331 U.S. at 473 n.2 (emphasis added).
In 1966, Rule 29 was added to the Rules listed in
Rule 45(b), and the history of that amendment reflects
a recognition that Smith and Robinson would render

___________________(footnotes)

13 In Mayer, the Court recognized, as an exception to that
rule, that a court possessed power in a subsequent term "to
correct inaccuracies in mere matters of form, or clerical
errors." 235 U.S. at 67. That exception is inapplicable here.

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23

the seven-day time limit in Rule 29(c) mandatory.
The Advisory Committee's Note to Rule 29(c) states
that the power to extend the seven-day time limit in
that Rule is patterned on Rule 33, the Rule at issue in
Smith. See Fed. R. Crim. P. 29 advisory committee's
note (1966 amendment). 14. The Advisory Committee's
Note regarding Rule 33 likewise refers back to Rule
29(c), and cites the decision in Smith. See Fed. R.
Crim. P. 33 advisory committee's note (1966 amend-
ment). Finally, the Advisory Committee's Note to
Rule 45 cites Robinson, and states that Rule 45(b)
"makes it clear that the only circumstances under
which extensions [of time] can be granted under
Rule[] 29  * * * are those stated in" that Rule
itself. Fed. R. Crim. P. 45 advisory committee's note
(1966 amendment). The drafters of Rule 29(c) and
Rule 45(b) thus expressed their intention that the
seven-day time limit be binding and jurisdictional.
See 4 Mark S. Rhodes, Orfield's Criminal Procedure
under the Federal Rules  292, at 503-508 (2d ed.
1987) (reviewing drafting history of Rule 29(c)).

___________________(footnotes)

14 The Reporter's Comment on the January 1961 First
Tentative Draft of Rule 29(c) likewise noted that, "[i]f any
change is made in the 5-day period under Rule 33, this rule
should be changed to conform." CIS Records of the Judicial
Conference of the United States, Committee on Rules of
Practice and Procedure, 1935-1988-Committee on Criminal
Procedure, CM 3710-70 (microfiche).

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24

B. There Is No Source Of Judicial Authority To
Override The Time Limit Mandated By Rule
29(c)

Petitioner does not argue that the text or history
of Rule 29 or Rule 45 support, or are even consistent
with, his claim (Br. 8) that a district court has the
"discretion" to enter a judgment of acquittal when no
timely motion for such relief has been made within
seven days of the discharge of the jury. Instead, he
bases his claim for "flexible" application of Rule
29(c)'s time limits on other rules or statutes (Br. 10),
and on the district court's "inherent supervisory
power" (Br. 30). None of those sources gives a court
power to disregard the time limits of Rule 29(c).
1. Federal Rule of Criminal Procedure 2:
Petitioner relies first (Br. 10-11) on Federal Rule of
Criminal Procedure 2, which provides that the Rules
of Criminal Procedure are "intended to provide for
the just determination of every criminal proceeding.
They shall be construed to secure simplicity in pro-
cedure, fairness in administration and the elimination
of unjustifiable expense and delay." Nothing in the
very general language of Rule 2 suggests that that
Rule was intended to override the time limit pre-
scribed by Rule 29(c) and reinforced by Rule 45(b).
Nor does the Court's reliance on Rule 2 in Fallen v.
United States, 378 U.S. 1.39 (1964), suggest that that
Rule is assigned the office of permitting discre-
tionary deviation from time limits as a matter of
course. In Fallen, the Court determined, in the
highly unusual circumstances of that case, that a
defendant's untimely notice of appeal did not deprive
the court of appeals of jurisdiction over his case. The
Court noted that, while "the timely filing of a notice

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25

of appeal is a jurisdictional prerequisite to the
hearing of the appeal," under Rule 2, the Rules must
be "approached with sympathy for their purpose." Id.
at 142. The Court explained that the extraordinary
nature of the case, and in particular that Fallen was
incarcerated, ill, deprived of visitors, and forced
against his will to proceed pro se, and that (before
expiration of the ten-day deadline) Fallen had sub-
mitted a notice of appeal to prison authorities for
mailing, required that his notice of appeal be accepted.
Id. at 142-143. 15. Four Justices concurred, taking the
position that "a defendant incarcerated in a federal
prison and acting without the aid of counsel" in fact
has timely filed a notice of appeal when he delivers
it to prison authorities within the ten-day period
provided in Rule 37. Id. at 144 (Stewart, J., con-
curring). "In other words," the concurring Justices
concluded, "in such a case the jailer is in effect the
clerk of the District Court within the meaning of
Rule 37," Ibid. 16.

___________________(footnotes)

15 Fallen's holding prompted an amendment to then-Rule
37 that allowed a district court to extend the time to file a
notice of appeal for up to 30 days upon a finding of "excusable
neglect." The substance of that amendment is today embodied
in Federal Rule of Appellate Procedure 4(b). No comparable
provision has ever been added to Rule 29; rather, the drafters
of the Rules placed in Federal Rule of Criminal Procedure 45
stringent limits against the extension of the time period
prescribed by Rule 29(c) except as that Rule itself provides.

16 In Houston v. Lack, 487 U.S. 266 (1988), the Court
adopted the approach taken by the Fallen concurrence and
held that a pro se prisoner complies with the notice-of-appeal
deadline if, within the time period fixed by the Federal Rules,
he "deliver[s] the notice to prison authorities for forwarding to
the District Court." Id. at 270. The Court noted that Fallen
had rested on the recognition that "[t]he situation of prisoners

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26

The narrow holding in Fallen does not assist
petitioner. Unlike the defendant in that case, peti-
tioner was represented by counsel at all stages of the
case, and made no effort before the expiration of the
deadline in Rule 29(c) to file a motion for judgment of
acquittal in the district court. Fallen establishes no
general principle that, under Rule 2, deadlines fixed
by the Rules of Criminal Procedure should be applied
"flexibly" so as to excuse his delinquency (Br. 10).
That reading of Fallen cannot be squared with the
decision in Berman v. United States, 378 U.S. 530
(1964) (per curiam), which was decided the same day
as Fallen. In Berman, the defendant's notice of
appeal had been due on a Saturday, and his attorney
timely prepared the notice and asked an associate
to file it on the preceding Friday. The associate,
however, "left the office with a fever and went home to
bed, where he stayed until late Sunday. Because of
the associate's illness, the notice was not filed on
Saturday; instead, it was filed Monday morning." Id.
at 531 (Black, J., dissenting). The court of appeals
dismissed the appeal as untimely, and this Court
summarily affirmed, citing Robinson. See id. at 530.
In his dissenting opinion, Justice Black noted that the
notice of appeal deadline was being enforced even

___________________(footnotes)

seeking to appeal without the aid of counsel is unique" (ibid.),
because such a pro se prisoner's "control over the processing of
his notice necessarily ceases as soon as he hands it over to the
only public officials to whom he has access." Id. at 271-272.
The decision in Houston gave rise to Federal Rule of Appellate
Procedure 4(c), which provides that in cases involving "an
inmate confined in an institution," the "notice of appeal is
timely filed if it is deposited in the institution's internal mail
system on or before the last day for filing." See Fed. R. App.
P. 4 advisory committee's note (1993 amendment).

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27

though "the sale reason for cutting off the defendant's
right of appeal * * * is the fact that, after the
defendant has decided to appeal, the lawyer to whom
he entrusts the duty of physically transporting his
notice of appeal * * * fails to get it there because he
is taken ill." Id. at 532; see also Santana v. United
States, 385 U.S. 848 (1966) (Black, J., dissenting from
denial of certiorari); Temple v. United States, 386
U.S. 961 (1967) (Black, J., dissenting from denial of
certiorari). The disposition of Berman establishes
that Fallen rests principally on the incarcerated
defendant's involuntary pro se status. It has no ap-
plication to a case such as this, where a represented
defendant fails to meet a jurisdictional deadline as the
result of his counsel's lapse.
2. Federal Rule of Criminal Procedure 57;
Petitioner also relies (Br. 15, 17) on Arizona v.
Manypenny, 672 F.2d 761, 765-766 (9th Cir.)
(Kennedy, J.), cert. denied, 459 U.S. 850 (1982), which
invoked both Federal Rule of Criminal Procedure 57
and the "inherent power" of a district court in
support of its holding that, more than seven days after
the discharge of the jury, a court may revisit its
denial of a timely filed motion for judgment of
acquittal. 17. To the extent that petitioner relies on
Rule 57, that reliance is misplaced. Rule 57 provides
that, "[i]n all cases not provided for by rule, the
district judges and magistrate judges may regulate
their practice in any manner not inconsistent with

___________________(footnotes)

17  Manypenny was decided before Bank of Nova Scotia v.
United States, 487 U.S. 250 (1988), which, as we discuss at page
32, infra, holds that a district court may not exercise its
supervisory power where doing so would conflict with a
Federal Rule of Criminal Procedure.

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28

these rules or those of the district in which they act."
Rule 57 does not authorize a court to grant an
untimely motion for judgment of acquittal because
the time limit for such motions is "provided for by
rule''-Rule 29(c)-and because granting an untimely
motion would be "inconsistent" with that Rule.
As the Advisory Committee's Note to Rule 57 ex-
plains, while the Federal Rules of Criminal Pro-
cedure "are intended to constitute a comprehensive
procedural code for criminal cases in the Federal
courts," Rule 57 allows individual judges or districts
to set their own practices on "matters of detail" not
addressed by those Rules, such as "the mode of im-
paneling a jury, the manner and order of interposing
challenges to jurors, the manner of selecting the
foreman of a trial jury, the matter of sealed verdicts,
the order of counsel's arguments to the jury, and
other similar details." Fed. R. Crim. P. 57 advisory
committee's note (1944 adoption). 18. The time limit
prescribed by Rule 29(c) is part of that nationally
applicable procedural code, and hence is not a "matter
of detail" subject to the discretion of a district judge.
See Miner v. Atlass, 363 U.S. 641, 650 (1960) (purpose
of requiring particular statutory procedures to be
used to adopt Federal Rules was to ensure that "basic
procedural innovations shall be introduced only after
mature consideration of informed opinion from all
relevant quarters, with all the opportunities for
comprehensive and integrated treatment which such

___________________(footnotes)

18 The order of closing arguments is today prescribed by
Federal Rule of Criminal Procedure 29.1, which became ef-
fective in 1975. Rule 29.1 "reflects the Advisory Committee's
view that it is desirable to have a uniform federal practice" in
this area. See Fed. R. Crim. P. 29.1 advisory committee's note
(1974 addition).

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29

consideration affords").  Indeed, if Rule 57 were
thought to leave a district judge discretion to enlarge
the time period within which a post-verdict motion for
judgment of acquittal could be filed, it would also
presumably allow a judge to contract that time period
-an action plainly inconsistent with Rule 29(c). 19.
3. The All Writs Act (28 U.S.C. 1651): Petitioner
also claims (Br. 23-25, 30) that a district court has
authority under the All Writs Act, 28 U.S.C. 1651, to
treat an untimely motion for judgment of acquittal as
a petition for a writ of coram nobis, and to issue such
a writ acquitting the defendant. 20. The traditional

___________________(footnotes)

19 Rule 57 also allows a district court, after engaging in
appropriate notice and comment procedures, to "make and
amend rules governing its practice not inconsistent with these
rules." Similarly, under the Rules Enabling Act, 28 U.S.C.
2071(a), "all courts established by Act of Congress may from
time to time prescribe rules for the conduct of their business,"
so long as those rules are "consistent with Acts of Congress and
rules of practice and procedure prescribed under" 28 U.S.C.
2072, another section of the Rules Enabling Act. As we have
noted, any local rule altering the time limits governing motions
for judgments of acquittal would be inconsistent with Rule
29(c) and hence void.  In any event, the district in which
petitioner was convicted has not adopted a rule authorizing a
court to grant a motion for judgment of acquittal filed more
than seven days after discharge of the jury. See Local Rules of
Practice and Procedure, United States District Court for the
Western District of Michigan (Aug. 1991).

20 The All Writs Act, 28 U.S.C. 1651, provides:

(a) The Supreme Court and all courts established by Act
of Congress may issue all writs necessary or appropriate in
aid of their respective jurisdictions and agreeable to the
usages and principles of law.

(b) An alternative writ or rule nisi may be issued by a
justice or judge of a court which has jurisdiction.

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30

scope of the coram nobis remedy does not extend to
that situation. In any event, the coram nobis remedy
may not be employed in a manner that effectively
overrides a Federal Rule.
The writ of coram nobis was available at common
law solely to correct errors of fact "of the most
fundamental character" that had not been brought to
the attention of the trial court and that "rendered the
proceeding itself irregular and invalid." United
States v. Addonizio, 442 U.S. 178, 186 (1979); see
United States v. Morgan, 346 U.S. 502,507 & n.9, 512
(1954); Mayer, 235- U.S. at 68; Yale Kamisar, Wayne
R. LaFave, & Jerold H. Israel, Modern Criminal
Procedure 1624-1625 (1994). For example, the writ
could issue to bring before the court such heretofore
unknown errors as the fact that "the defendant, being
under age, appeared by attorney, or the plaintiff or
defendant * * * died before verdict." Mayer, 235
U.S. at 68; see also Morgan, 346 U.S. at 508. In
Morgan, this Court held that, under the All Writs
Act, federal courts retain power to issue writs of
coram nobis. 346 U.S. at 508. But, the Court noted,
the writ is an "extraordinary remedy, available only
under circumstances compelling such action to
achieve justice," id. at 511, and may issue only where
"no other remedy [is] available" and where there are
"sound reasons existing for failure to seek appro-
priate earlier relief," id. at 512; see also id. at 511
(noting view at common law that "failure to use a
known remedy at the time of trial may be a bar to
subsequent reliance on the defaulted right").
In light of those principles, the coram nobis remedy
is unavailable to petitioner, for several reasons.
First, petitioner does not claim that proof of an extra-
record fact would demonstrate the invalidity of his

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31

conviction.  Rather, petitioner claims that the evi-
dence at trial was insufficient, a claim that, unlike the
paradigmatic coram nobis claim, does not concern
"matters of fact which had not been put in issue or
passed upon." Mayer, 235 U.S. at 68. Second, peti-
tioner does not attack "the validity and regularity" of
the judgment itself, Morgan, 346 U.S. at 507 (internal
quotation marks omitted), but, instead, the evi-
dentiary basis for that judgment. See Moody v.
United States, 874 F.2d 1575, 1576-1577 (llth Cir.
1989) (claim that newly discovered evidence demon-
strates defendant's innocence "is not cognizable in a
coram nobis proceeding" because it does not involve
"a matter of fact of the most fundamental character
which has not been put in issue or passed upon and
which renders the proceeding itself irregular and
invalid"), cert. denied, 493 U.S. 1081 (1990). Third,
other remedies are available to petitioner, including
the right to challenge the sufficiency of the evidence
on direct appeal and to petition for collateral relief
under 28 U.S.C. 2255. See pages 37-39, infra.
Finally, a writ of coram nobis may not be utilized to
override a procedure mandated by statute or Federal
Rule, such as Rule 29(c)'s time limit. As this Court
has explained:

The All Writs Act is a residual source of
authority to issue writs that are not otherwise
covered by statute. Where a statute specifically
addresses the particular issue at hand, it is that
authority, and not the All Writs Act, that is
controlling. Although that Act empowers federal
courts to fashion extraordinary remedies when
the need arises, it does not authorize them to
issue ad hoc writs whenever compliance with

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32

statutory procedures appears inconvenient or less
appropriate.
Pennsylvania Bureau of Correction v. United States
Marshals Service, 474 US. 34, 43 (1985); see Smith,
331 U.S. at 475 n.4 (in light of enactment of Fed-
eral Rules of Criminal Procedure, "it is difficult to
conceive of a situation in a federal criminal case today
where th[e] remedy [of coram nobis] would be nec-
essary or appropriate"); id. at 471 ("The power of
the District Court to make such an order [granting a
new trial] turns entirely on the Rules of Criminal
Procedure.").
4. "Inherent Supervisory Power": Finally, peti-
tioner argues (Br. 9, 30) that a district court has
"inherent supervisory power" to relieve a defendant
"from the strict operation of the time limits"
prescribed by Rule 29(c). 21. That claim, however,
is foreclosed by this Court's decision in Bank of
Nova Scotia v. United States, 487 U.S. 250 (1988),
which holds that a district court may not exer-
cise its supervisory power where doing so would
"circumvent" or "conflict with" a Federal Rule of
Criminal Procedure. Id. at 254. At issue in Bank of
Nova Scotia was whether a district court could use
its supervisory powers to dismiss an indictment for
misconduct before the grand jury that did not prej-
udice the defendant, notwithstanding the direction in

___________________(footnotes)

21 While several courts have suggested that the "super-
visory powers" of the federal courts are conferred by the All
Writs Act, most have concluded that such powers derive from
Article III of the Constitution. Sara Sun Beale, Reconsidering
Supervisory Power in Criminal Cases: Constitutional and
Statutory Limits on the Authority of the Federal Courts, 84
Colum. L. Rev. 1433, 1464 (1984).

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33

Federal Rule of Criminal Procedure 52(a) that a
district court must "disregard[]" any error that does
not "affect substantial rights." The Court held it
could not, because of the established principle that
"[e]ven a sensible and efficient use of the supervisory
power . . . is invalid if it conflicts with constitutional
or statutory provisions." 487 U.S. at 254 (quoting
Thomas v. Arn, 474 U.S. 140, 148 (1985)). That
principle, the Court held, applies with equal force
where the exercise of supervisory power would
conflict with a Federal Rule of Criminal Procedure
(id. at 255 (quoting United States v. Payner, 447 U.S.
727, 736 (1980))):

Rule 52 is, in every pertinent respect, as binding
as any statute duly enacted by Congress, and
federal courts have no more discretion to dis-
regard the Rule's mandate than they do to
disregard constitutional or statutory provisions.
The balance struck by the Rule between societal
costs and the rights of the accused may not casu-
ally be overlooked "because a court has elected
to analyze the question under the supervisory
power."

See id. at 254 ("To allow otherwise `would confer on
the judiciary discretionary power to disregard the
considered limitations of the law it is charged with
enforcing.'") (quoting Payner, 447 U.S. at 737);
Chambers v. NASCO, Inc., 501 U.S. 32, 51 (1991) ("a
district court [may] not rely on its supervisory pow-
er as a means of circumventing the clear mandate
of a procedural rule"); United States v. Hasting, 461
U.S. 499, 505 (1983) (supervisory power cannot justify
the reversal of a conviction based on nonprejudi-
cial prosecutorial misconduct, because to do would

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34

conflict with the requirement to overlook harmless
error in Fed. R. Crim. P. 52); cf. Palermo v. United
States, 360 U.S. 343, 353 n.11 (1959). A district court
likewise may not use its supervisory power to
override Rule 29(c)'s mandatory time limit for filing a
post-verdict motion for judgment of acquittal. 22.
The exercise of supervisory authority to extend
Rule 29(c)'s time limit would be particularly
inappropriate in light of the scant precedent at
common law for such action. Courts at common law
did not enjoy the power to enter a judgment incon-
sistent with a jury's verdict in a criminal case. In
England, after the jury found the defendant guilty,
courts could recommend a royal pardon if they
concluded that the evidence was insufficient, but
could not themselves enter a post-verdict judgment of
acquittal or dismissal. Ex parte United States, 101
F.2d 870,875-876 & n.15 (7th Cir.), aff'd by an equally
divided Court sub nom. United States v. Stone, 308
U.S. 519 (1939) (per curiam); 1 James Fitzjames
Stephen, A History of the Criminal Law of England
311-313 (1883). Early decisions in the United States

___________________(footnotes)

22 The decisions on which petitioner relies (Br. 9-14) rec-
ognize that supervisory power may be exercised only where
no statute or Federal. Rule has supplied a contrary rule of
decision. In United States v. Nobles, 422 U.S. 225 (1975), the
Court recognized a court's inherent authority to order the
disclosure of a defense witness's written statements, but only
after concluding that the exercise of that authority would not
conflict with the Fifth- Amendment, the Jencks Act (18 U.S.C.
3500), Federal Rule of Criminal Procedure 16, or the work-
product doctrine. 422 U.S. at 233-340. See also United States
v. Hasting, supra (discussed in text). Petitioner's reliance (Br.
14) on Brock v. Pierce County, 476 U.S. 253 (1986), is mis-
placed, because Brock involved the construction of a statutory
time limit, not the exercise of supervisory power.

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35

recognized a court's authority to direct a jury to
acquit the defendant, see Sparf v. United States, 156
U.S. 51, 99-100, 105 (1895); United States v. Fullerton,
25 Fed. Cas. 1225, 1226 (C.C.S.D.N.Y. 1870) (No.
15,176), but few if any reported decisions from this
period support entry of a judgment of acquittal
following a guilty verdict. See Note, Reservation of
Motion for Directed Verdict in Federal Criminal
Trials, 49 Yale L. J. 733,735,736 & n.27 (1940); but see
State v. Meen, 171 Wis. 36 (1920). Nor was the power
to do so recognized by the leading treatises on
criminal law and procedure of that era. See, e.g., 1
Elijah N. Zoline, Federal Criminal Law and Pro-
cedure 457-466, at 383-389 (1921); William L. Clark,
Jr., Handbook of Criminal Procedure 55181-187, at
562-584 (2d ed. 1918); 2 Joel Prentiss Bishop, New
Criminal Procedure 1263-1288, at 1082-1126 (2d ed.
1913).
Not until 1939, seven years before the effective date
of the Federal Rules of Criminal Procedure, did a
federal court of appeals, in Ex parte United States,
supra, hold that a district court could reserve ruling
on a motion for directed verdict of acquittal, and later
grant that motion after the jury convicted the
defendant. In that case, the Seventh Circuit held
that, while no statute authorized a district court to
take such action, "the absence of express prohibitive
legislation" left room for federal courts to enlarge
"the procedures [governing directed verdicts] known
at common law." 101 F.2d at 876. That decision was
affirmed by an equally divided Supreme Court, and
has been codified today in Rule 29(b). See Fed. R.
Crim. P. 29 advisory committee's note (1944 adoption).
We are aware, however, of no cases before the
adoption of the Federal Rules of Criminal Procedure

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36

granting a motion for acquittal first made after the
verdict. Exercise of supervisory authority to grant
such relief based on a motion more than seven days
after discharge of the jury would therefore not only
beat odds with Rule 29(c), but without precedent at
common law.

C. Rule 29(c)'s Time Limit Advances Valid
Systemic Interests While Preserving A
Defendant's Right To Challenge The
Sufficiency of The Evidence On Appeal
Petitioner, finally, argues that enforcing Rule
29(c)'s seven-day deadline is ill-advised policy. He
claims that a flexible treatment of that time limit (1)
is needed "to ensure that an innocent man is not found
guilty" and thereby to "preserve judicial integrity"
(Br. 9); and (2) would not prejudice the government
where the defendant has missed Rule 29(c)'s time
limit by only one day (Br. 19).
1. As an initial matter, petitioner's policy argu-
ments in favor of a flexible deadline are better
addressed in a rule-making proceeding than in
litigation over the meaning of the Rule as written.
See note 15, supra (noting that amendment was made
to Federal Rule of Criminal Procedure 37 to in-
corporate the concept of "excusable neglect"). Rule
29(c) reflects a balance of competing policy con-
siderations, and it must be heeded unless its
enforcement would be unconstitutional. 23. Cf. Bank of

___________________(footnotes)

23 While petitioner does suggest (Br. 28-29) that enforcing
Rule 29(c)'s time limits would violate his rights under the Due
Process Clause of the Fifth Amendment, that claim lacks any
merit. Far from denying petitioner due process of law, a rule
that sets a clear and attainable time limit fully comports with
the need for procedural regularity that is at the heart of the

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37

Nova Scotia, 487 U.S. at 255 (Rule 52 represents a
"balance struck * * * between societal costs" and
principles of finality on the one hand, "and the rights
of the accused" on the other). As this Court explained
in Robinson when faced with the analogous claim that
enforcing the requirement that a notice of appeal be
filed within ten days would be unjust:

That powerful policy arguments may be made
both for and against greater flexibility with
respect to the time for the taking of an appeal is
indeed evident. But that policy question, involv-
ing, as it does, many weighty and conflicting
considerations, must be resolved through the
rule-making process and not by judicial decision.
* * * Whatever may be the proper resolution of
the policy question involved, it was beyond the
power of the Court of Appeals to resolve it.

361 U.S. at 229-230. The district court in this case
likewise had no basis for substituting its appraisal of
the merits of a binding seven-day time limit for the
determination reflected in Rule 29(c).
2. In any event, petitioner's assertion that en-
forcing the time limit set by Rule 29(c) would prevent
the reversal of the conviction of an "actually inno-
cent" defendant (Br. 9-14) is unfounded. Rather than

___________________(footnotes)

Due Process Clause. A legal system that lacked defined pro-
cedural deadlines would be chaotic and unmanageable. As for
petitioner's claim (Br. 28-29) that the right to have a court
grant a motion for judgment of acquittal made more than
seven days after the discharge of the jury is "implicit in the
concept of ordered liberty," Palko v. Connecticut, 302 U.S.
319, 325-326 (1937), that claim is defeated by the absence at
common law of any tradition of granting post-verdict motions
for judgment of acquittal. See pages 34-36, supra.

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38

foreclosing review, enforcing the time limit set by
Rule 29(c) simply shifts the forum in which a claim of
insufficient evidence is litigated after the verdict.,
from the district court to the court of appeals. A
defendant who fails to make a post-verdict motion for
judgment of acquittal retains the right to claim on
appeal that the evidence was insufficient as a matter
of law, And, although petitioner failed to do so here,
defendants typically file motions for judgments of
acquittal under Rule 29(a) before a case is submitted
to the jury but after the evidence on either side is
closed, and, where such motions are denied, thus
preserve their right to appellate review of evidentiary
sufficiency even in the absence of a Rule 29(c) post-
verdict motion. See United States v. Overmyer, 867
F.2d 937,938 (6th Cir.) (same standard governs appeal
from denial of Rule 29(a) motion as appeal from denial
of Rule 29(c) motion), cert. denied, 493 U.S. 813 (1989).
In the rare case of a defendant such as petitioner who
has made no such motion, a claim of insufficient
evidence is still reviewable on appeal, under a plain
error standard of review.  See generally United
States v. Olano, 113 S. Ct. 1770 (1993). Petitioner
thus will have the opportunity to establish on appeal
that it was plain error for the district court not to
dismiss the case on its own motion on the ground that
no "rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307,319 (1979). 24.
               
___________________(footnotes)

24 The courts of appeals have consistently acknowledged
the right of the defendant to plain error review of a claim of
insufficient evidence where the defendant has failed to make a
timely motion for judgment of acquittal in the district court.
See United States v. Santistevan, 39 F.3d 250, 256-257 (10th
Cir. 1994) (finding plain error); United States v. Zolicoffer, 869

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39

In addition, a defendant such as petitioner who
claims (Br. 12) that the failure to make a timely
motion under Rule 29(c) was the product of an
unprofessional error by defense counsel may also be
entitled to collateral relief under 28 U.S.C. 2255. If
the defendant can establish that counsel's overall
representation "fell below an objective standard of
reasonableness," Strickland v. Washington, 466 U.S.
668, 688 (1984), and that there is a reasonable prob-
ability that, absent defense counsel's errors, the
result in the case would have been different, id. at 694,
the claim may be reviewed notwithstanding the
defendant's procedural default. See United States v.
Frady, 456 U.S. 152 (1982); cf. Robinson, 361 U.S. at
230 n.14; Smith, 331 U.S. at 475-476.
Also unavailing is petitioner's claim (Br. 12) that
enforcing Rule 29(c)'s time limit would result in the

___________________(footnotes)

F.2d 771, 774 (3d Cir.) (plain error), cert. denied, 490 U.S. 1113
(1989); see also United States v. Muniz, 60 F.3d 65, 67 (2d Cir.
1995) (no plain error); United States v. Quintero-Barraza, 57
F.3d 836, 843-844 (9th Cir. 1995) (no plain error); United States
v. Cox, 957 F.2d 264, 265 (6th Cir. 1992) (no plain error);
Fagan, 821 F.2d at 1009 & n.2 (no "manifest miscarriage of
justice"); cf. United States v. South, 28 F.3d 619, 626 n.3 (7th
Cir. 1994). There is, in fact, some uncertainty about whether
the "plain error" standard for reviewing insufficiency claims
first made on appeal differs from the standard for reviewing
insufficiency claims properly preserved in the district court.
See 2 Charles Alan Wright, Federal Practice and Procedure
(Criminal) 469, at 675 (2d ed. 1982); see also United States V.
Davis, 583 F.2d 190, 199 (5th Cir. 1978) (Clark, J., concurring
in part and dissenting in part). And contrary to petitioner's
suggestion (Br. 12) that the Jackson v. Virginia standard
governing claims of insufficient evidence applies only to claims
raised in the court of appeals, that standard applies as well to
post-verdict motions for judgment of acquittal made in the
district court. See, e,g., Overmyer, 867 F.2d at 938-939.

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40

incarceration of a defendant whom the district court
regards as not guilty pending resolution of his appeal.
The provision that governs bail pending appeal, 18
U.S.C. 3143(b), authorizes a district court to release
on bail a defendant who establishes that the appeal
"raises a substantial question of law or fact likely to
result in * * * (i) reversal, (ii) an order for a new
trial, [or] (iii) a sentence that does not include a term
of imprisonment." 18 U.S.C. 3143(b)(1)(B). 25. When a
district judge believes that a post-verdict motion for
judgment of acquittal would have had merit but for
the untimeliness of that motion, it is likely that the
judge will find the bail standard to have been met.
Petitioner suggests (Br. 19) that to honor a motion
for judgment of acquittal filed only one day late would
not offend the policies supporting Rule 29(c)'s time
limit. But if jurisdictional time limits are to have any
meaning, they must be strictly enforced. 26. Peti-
tioner's "flexible" approach would defeat the systemic
interest in the predictability of time limits, require
      
___________________(footnotes)

25 To release a convicted defendant on bail pending appeal,
the district court must also find, by clear and convincing evi-
dence, "that the [defendant] is not likely to flee or pose a
danger to the safety of any other person or the community if
released," 18 U.S.C. 3143(b)(1)(A).

26 As this Court has noted in another context, "[i]f 1-day
late filings are acceptable, 10-day late filings might be equally
acceptable, and so on in a cascade of exceptions that would
engulf the rule erected by the filing deadline yet regardless of
where the cutoff the is set, some individuals will always fall
just on the other side of it. Filing deadlines, like statutes of
limitations, necessarily operate harshly and arbitrarily with
respect to individuals who fall just on the other side of them,
but if the concept of a filing deadline is to have any content,
the deadline must be enforced." United States v. Locke, 471
U.S. 84, 101 (1985).

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41

district and appellate courts to undertake inquiries
into whether particular delinquent filings were
justified, and frequently delay appellate review. See
Robinson, supra (affirming dismissal of appeal where
notice of appeal filed 11 days late); Berman, supra
(affirming dismissal of notice of appeal filed two days
late); see also Coleman v. Thompson, 501 U.S. 722,
740 (1991) (denying collateral relief to defendant in
capital case who filed notice of appeal three days
beyond State's mandatory 30-day time limit); Brown
v. Allen, 344 U.S. 443, 484-487 (1953) (denying col-
lateral relief to defendant who filed notice of appeal
one day beyond State's mandatory 60-day time limit);
see also Fed. R. Crim. P. 2 (purpose of Federal Rules
includes "the elimination of unjustifiable expense and
delay"). Rule 29(c)'s time limit also has the effect of
ensuring that motions for judgment of acquittal will
be resolved before sentencing in all but the extra-
ordinary case. That, in turn, reduces the possibility
that the resolution of the Rule 29(c) motion might be
colored by the district judge's heightened under-
standing by the time of sentencing of the defendant's
background or likely sentencing range. 27.

___________________(footnotes)

27 Petitioner purports to cabin his proposed exception to
Rule 29's time limit by proposing (Br. 22-23) that that limit be
disregarded only when "(l) the motion is made prior to
sentencing, (2) the motion was not timely filed because of an
attorney's mistake and (3) there is a claim that the defendant is
actually innocent." Petitioner's exception would swallow Rule
29(c), however, because his three conditions will almost always
apply a motion for judgment of acquittal is by definition a
claim that the defendant is legally innocent; a motion will
almost always be filed before sentencing; and a represented
defendant who does not file a timely motion for acquittal can
always claim that his attorney was responsible for that decision,

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42

Rule 29(c) accounts for the occasional need of a
defendant for additional time to prepare a motion for
judgment of acquittal, or of a district court to con-
sider the merits of granting such relief. See Smith,
331 U.S. at 475. It does so by allowing a defendant to
seek extension of the seven-day time limit before that
period has run, see Fed. R. Crim. P. 29(c), and by
allowing a district court to reserve judgment on a
pre-verdict motion until after the verdict, see Fed. R.
Crim. P. 29(b). An open-ended invitation to further
extensions, however, "is no insurance of justice."
Smith, 331 U.S. at 476. As the Court has observed
(ibid.):

On the contrary, as time passes, the peculiar
ability which the trial judge has to pass on the
fairness of the trial is dissipated as the incidents
and nuances of the trial leave his mind to give way
to immediate business. It is in the interest of
justice that a decision on the propriety of a trial be
reached as soon after it has ended as is possible,
and that decision not be deferred until the trial's
story has taken on the uncertainty and dimness of
things long past.

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CONCLUSION

The judgment of the court of appeals should be
affirmed.

Respectfully submitted.

DREW S. DAYS, III
Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney
General

MICHAEL R. DREEBEN
Deputy Solicitor General

PAUL A. ENGELMAYER
Assistant to the Solicitor
General

DAVID S. KRIS
Attorney

DECEMBER 1995

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APPENDIX

1. The All Writs Act, 28 U.S.C. 1651, provides:

1651. Writs

(a) The Supreme Court and all courts
established by Act of Congress may issue all
writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the
usages and principles of law.
(b) An alternative writ or rule nisi may
be issued by a justice or judge of a court which
has jurisdiction.

2.  Rule 2, Fed. R. Grim. P., provides:

Rule 2. Purpose and Construction

These rules are intended to provide for the
just determination of every criminal pro-
ceeding. They shall be construed to secure
simplicity in procedure, fairness in adminis-
tration and the elimination of unjustifiable
expense and delay.

3. Rule 33, Fed. R. Crim. P., provides:

Rule 33.  New Trial

The court on motion of a defendant may
grant a new trial to that defendant if required
in the interest of justice. If trial was by the
court without a jury the court on motion of a
defendant for a new trial may vacate the

(1a)

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2a

judgment if entered, take additional testimony
and direct the entry of a new judgment. A
motion for a new trial based on the ground of
newly discovered evidence may be made only
before or within two years after final judg-
ment, 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
grounds shall be made within 7 days after
verdict or finding of guilty or within such
further time as the court may fix during the 7-
day period.

4. Rule 45, Fed. R. Crim. P., provides:

Rule 45. Time

(a) Computation.  In computing any
period of time the day of the act or event from
which the designated period of time begins to
run shall not be included. The last day of the
period so computed shall be included, unless it
is a Saturday, a Sunday, or a legal holiday, or,
when the act to be done is the filing of some
paper in court, a day on which weather or
other conditions have made the office of the
clerk of the district court inaccessible, in
which event the period runs until the end of
the next day which is not one of the
aforementioned days. When a period of time
prescribed' or allowed is less than 11 days,
intermediate Saturdays, Sundays and legal
holidays shall be excluded in the computation.
As used in these rules, "legal holiday"
includes New Year's Day, Birthday of Martin

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3a

Luther King, Jr., Washington's Birthday,
Memorial Day, Independence Day, Labor Day,
Columbus Day, Veterans Day, Thanksgiving
Day, Christmas Day, and any other day
appointed as a holiday by the President or the
Congress of the United States, or by the state
in which the district court is held.

(b) Enlargement. When an act is re-
quired or allowed to be done at or within a
specified time, the court for cause shown may
at any time in its discretion (1) with or with-
out motion or notice, order the period enlarged
if request therefor is made before the ex-
piration of the period originally prescribed or
as extended by a previous order or (2) upon
motion made after the expiration of the
specified period permit the act to be done if the
failure to act was the result of excusable
neglect; but the court may not extend the time
for taking any action under Rules 29, 33, 34
and 35, except to the extent and under the
conditions stated in them.

[(c) Unaffected by Expiration of Term.]
(Rescinded Feb. 28, 1966, eff. July 1, 1966.)

(d) For Motions; Affidavits. A written
motion, other than one which may be heard ex
parte, and notice of the hearing thereof shall
be served not later than 5 days before the time
specified for the hearing unless a different
period is fixed by rule or order of the court.
For cause shown such an order may be made

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4a

on ex parte application.  When a motion is
supported by affidavit, the affidavit shall be
served with the motion; and opposing affidavits
may be served not less than 1 day before the
hearing unless the court permits them to be
served at a later time.

(e) Additional Time After Service by
Mail. Whenever a party has the right or is
required to do an act within a prescribed
period after the service of a notice or other
paper is served by mail, 3 days shall be added to
the prescribed period.

5.  Rule 57, Fed. R. Crim. P., provides:

Rule 57.  Rules by District Courts

Each district court by action of a ma-
jority of the judges thereof may from time to
time, after giving appropriate public notice and
an opportunity to comment, make and amend
rules governing its practice not inconsistent
with these rules. A local rule so adopted shall
take effect upon the date specified by the
district court and shall remain in effect unless
amended by the district court or abrogated by
the judicial council of the circuit in which the
district is located. Copies of the rules and
amendments so made by any district court
shall upon their promulgation be furnished to
the judicial council and the Administrative
Office of the United States Courts and be
made available to the public. In all cases not
provided for by rule, the district judges and

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5a

magistrate judges may regulate their practice
in any manner not inconsistent with these
rules or those of the district in which they act.