## F I L E D United States Court of Appeals Tenth Circuit 

### APR 7 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JOSEPH M. CUSTODIO,

Defendant-Appellant. Nos. 97-1113 & 97-1135

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D.C. No. 93-CR-57-Z)

Submitted on the briefs: Joseph M. Custodio, pro se. Henry L. Solano, United States Attorney, Stacey Ros s Goh, Assistant U.S. Attorney, Denver, Colorado, for Plaintiffs-Appellee s.

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

BALDOCK , Circuit Judge.1 After examining the briefs and appellate record, th is panel has

determined unanimously that oral argument would notmaterially assist the determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases are therefore ordered submitted without o ral argument. -2- In No. 97-1113, defendant appeals from the districtcourt’s February 21, 1997 order denying his motion for new trial under F ed. R. Crim. P. 33 and determining that his motion for leave to proceed informa pauperis was moot. In No. 97-1135, defendant appeals from the districtcourt’s March 26, 1997 order denying his motion to vacate its previous order denying his motion for new trial, and his motion for leave to proceed in forma pauper is on appeal. Defendant is representing himself on appeal and has moved this c ourt for leave to proceed in forma pauperis under 28 U.S.C. § 1915. Because thi s is a criminal case, § 1915 does not apply. We exercise jurisdiction under 28 U.S.C. § 1291, deny defendant’s motion for leave to proceed in forma pauperis on appeal as moot, and affirm. 1 Defendant, a physician, was convicted of eighteen c ounts of submitting false claims to the United States under 18 U.S.C. § 287. Judgment was entered against him on October 15, 1993. We affirmed his c onviction on appeal, see United States v. Custodio , 39 F.3d 1121 (10th Cir. 1994), issuing our mandat e on November 30, 1994.-3-

Nearly two years later, on November 8, 1996, defend ant moved the district court for a new trial pursuant to Fed. R. Crim. P. 33. In that motion, defendant alleged “intentional prosecutorial misconduct and the suppression of material evidence.” I R., doc. 3, at 3. He claimed the gov ernment had improperly failed to inform the court that two of its witnesses had p erjured themselves. See id. at 4 & attached trial transcript excerpts. He did not s pecify what material evidence the government allegedly had suppressed. The distr ict court held in its February 21, 1997 order that defendant’s November 8 , 1996 motion was untimely because it was filed more than two years after judg ment was entered on October 15, 1993. See id. doc. 7, at 2. However, the district court also ru led on the merits that defendant had “failed to provide th e [district court] with any evidence suggesting that even if the motion were ti mely, the interests of justice would be served by granting [him] a new trial.” Id

. On March 14, 1997, defendant filed a supplement to his motion for new trial, attaching documents in support of a more spe cific allegation that the government wrongfully had suppressed exculpatory an d impeachment material. In addition, defendant raised new allegations that the government had used tampered evidence to secure the conviction on countone and had deceived the jury with respect to count fourteen. See id. doc. 8 at 6-7. Defendant also filed motions to vacate order and for leave to proceed in forma pauperis on appeal.-4-

In its March 26, 1997 order, the district court den ied defendant leave to proceed in forma pauperis on appeal, holding that his appea l was “frivolous, [was] not taken in good faith, and [did] not present a substantial question.” Id. doc. 12, at 1. The court denied defendant’s motion to vacat e order without discussion. See id. at 2. In his opening brief on appeal, defendant argues th at the district court erred: (1) in holding that his November 8, 1996 mo tion for new trial was untimely; (2) in failing to hold an evidentiary hea ring on that motion; and (3) in denying him leave to proceed in forma pauperis on appeal. In his reply brief, defendant adds that: (4) the supplement to his mot ion for new trial was timely filed; (5) his original motion for new trial provid ed proof that the government failed to advise the court that it had used perjure d testimony and false and misleading evidence; and (6) he should not be deeme d to have waived any issues because he is indigent and representing himself. “‘The [trial] court on motion of a defendant may gr ant a new trial to the defendant if required in the interest of justic e.’” United States v. Patterson , 41 F.3d 577, 579 (10th Cir. 1994) (quoting Fed. R. Crim. P. 33). A motion for new trial under Fed. R. Crim. P. 33 “is not regarde d with favor and should be granted only with great caution, being addressed to the sound discretion of the trial court.” United States v. Stevens , 978 F.2d 565, 570 (10th Cir 1992)-5-

(quotation omitted). We therefore review the distr ict court’s denial of defendant’s motions for abuse of discretion. See id. The government concedes that the district court err ed in holding in its February 21, 1997 order that defendant’s original m otion for new trial was untimely. When an appeal is taken in a criminal ca se, the two-year time period for filing a motion for new trial under Fed. R. Cri m. P. 33 runs from the date of the appellate court’s mandate, not the district court’s entry of judgment. See Casias v. United States , 337 F.2d 354, 356 (10th Cir. 1964); see also United States v. Dayton , 981 F.2d 1200, 1202 (11th Cir. 1993). Our mandat e in defendant’s criminal appeal issued on November 30, 1994, making his November 8, 1996 motion for new trial timely. However, a defendant may not add new arguments in s upport of a motion for new trial by including them in an amendment fil ed after the time under Rule 33 has expired. See Anthony v. United States , 667 F.2d 870, 875-76 (10th Cir. 1981). Because defendant’s supplement w as filed on March 14, 1997, well over two years after our mandate issued affirm ing his conviction, all new allegations raised in it were untimely and the dist rict court properly rejected them without discussion in its March 26, 1997 order. Defendant’s other arguments are without merit. His original motion for new trial was inadequately supported.-6-

Defendant’s motion to complete the record is DENIED . Defendant’s motion for leave to proceed in forma pauperis on ap peal is DENIED as MOOT. For the specific reasons set forth above, the judgm ent of the United States District Court for the District of Colorado is AFFIRMED.