*

The Honorable David L. Bunning, United States District Judge for

the Eastern District of Kentucky, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0031P (6th Cir.)

File Name: 04a0031p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL I. MONUS,

Defendant-Appellant.

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No. 02-4102

Appeal from the United States District Court

for the Northern District of Ohio at Youngstown.

No. 93-00034—Peter C. Economus, District Judge.

Argued: December 4, 2003

Decided and Filed: January 26, 2004 

Before: SILER and GILMAN, Circuit Judges; 

BUNNING, District Judge.*

_________________

COUNSEL

ARGUED: David L.Engler, Boardman, Ohio, for Appellant.

John D. Sammon, ASSISTANT UNITED STATES

2 United States v. Monus No. 02-4102

ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF:

David L. Engler, Boardman, Ohio, Martin E. Yavorcik,

Poland, Ohio, for Appellant. John D. Sammon, ASSISTANT

UNITED STATES ATTORNEY, Cleveland, Ohio, for

Appellee.

_________________

OPINION

_________________

SILER, Circuit Judge. After Michael I. Monus was

convicted of various financial crimes, this court upheld his

conviction but remanded for resentencing. Subsequently,

Monus moved for: (1) a new trial on the basis of newlydiscovered evidence, (2) a sentence reduction pursuant to 18

U.S.C. § 3582(c), and (3) a writ of coram nobis. The district

court determined that the motion for a new trial was untimely,

that the motion for sentence reduction was without merit

because the new sentencing guideline at issue was substantive

and not clarifying (and thus not retroactive), and that the

coram nobis motion was inappropriate because Monus is still

is federal custody. He appeals from the district court’s rulings

on these three motions. We affirm.

BACKGROUND

In 1995 Monus was convicted on all counts of a 109-count

indictment that charged him with an assortment of financial

crimes, including bank, wire, and mail fraud. On appeal, this

court affirmed his conviction but vacated his sentence and

remanded for resentencing for the district court to explain

how it calculated the amount of loss and to respond to

Monus’s objections to the Presentence Report. United States

v. Monus, 128 F.3d 376 (6th Cir. 1997). This court rendered

its decision on October 21,1997, and the mandate affirming

Monus’s conviction issued on October 24, 1997.
No. 02-4102 United States v. Monus 3

On remand, the parties struck a deal. In consideration for

stipulating to a lower loss figure ($5-10 million, as opposed

to the $80 million figure on which the previous sentence was

based) that had the effect of reducing Monus’s net “loss”

enhancement four levels (from 18 to 14), Monus agreed to

waive all rights to appeal, including all rights under 28 U.S.C.

§ 2255. The order resentencing Monus in accordance with

these terms was entered on March 1, 1999.

On March 3, 2000, Monus filed two motions: a motion to

correct a clerical error and a motion for a reduction of

sentence under Rule 35(b). The district court granted the

motion to correct the clerical error but denied the Rule 35(b)

motion. Monus again appealed. While the case was before

this court on Monus’s appeal of the district court’s denial of

his Rule 35(b) motion, however, on March 12, 2001, Monus

filed a motion for a new trial based on newly-discovered

evidence. The district court stayed consideration of the

motion pending a ruling by this court on Monus’s appeal of

his Rule 35(b) motion. 

This court affirmed the district court’s denial of Monus’s

Rule 35(b) motion on April 12, 2002. Monus then filed the

other two motions that are the subject of this appeal: the

motion for a sentence reduction pursuant to 18 U.S.C.

§ 3582(c) and the motion for a writ of coram nobis. The

district court considered the three pending motions together

and denied them all. Monus appealed. 

STANDARD OF REVIEW

“Ordinarily, [an appellate court] reviews the denial of a

motion for new trial on the basis of newly discovered

evidence for abuse of discretion. [This case,] however,

presents [a] question[] of law . . . . Accordingly, [the court]

conducts a de novo review of the district court’s conclusion[]

of law” that the motion was not timely filed. United States v.

Pelullo, 14 F.3d 881, 886 (3d Cir. 1999) (citation omitted).

The district court’s determination that the relevant sentencing

4 United States v. Monus No. 02-4102

1

The Rule was further amended effective December 1, 2002. The

Rule did not change in substance, however, and the same “3 years after

the verdict or finding of guilty” time-limitation still applies. The relevant

language in the post-2002 Rule 33 appears in subsection (b)(1). (The pre2002 rule was not divided into subsections.). 

guideline revision was substantive and not clarifying is also

reviewed de novo. United States v. Hicks, 4 F.3d 1358, 1360

(6th Cir. 1993). Likewise, “[a] district court’s determination

of legal issues in coram nobis proceedings is reviewed de

novo.” United States v. Johnson, 237 F.3d 751, 754 (6th Cir.

2001). 

DISCUSSION

Motion for a New Trial

In considering the timeliness of Monus’s motion for a new

trial, the following dates are relevant: (1) May 25, 1995, the

date on which the jury rendered its guilty verdict;

(2) October 24, 1997, the date on which the mandate issued

from this court affirming Monus’s conviction; (3) March 1,

1999, the date on which the amended judgment was entered

following Monus’s resentencing; and (4) March 12, 2001, the

date on which Monus filed his motion for a new trial. 

 As to this issue, a preliminary question arises: which

version of Rule 33 should apply, the pre-1998 version, which

requires a motion for a new trial based on newly discovered

evidence to be made “within two years after final judgment,”

or the post-1998 version, which requires that the motion be

made “within 3 years after the verdict or finding of guilty”?1

(Emphasis added). If the post-1998 version applies, even

Monus concedes that his motion was untimely.

“At the time the amendments to Rule 33 were promulgated,

the Supreme Court specified that the amendments would

apply to all pending criminal cases ‘insofar as just and

practicable.’” United States v. Ristovski, 312 F.3d 206, 212
No. 02-4102 United States v. Monus 5

(6th Cir. 2002) (citing Supreme Court Order 98-17, April 24,

1998). Though we have never addressed this question

directly, this court has strongly suggested that a case such as

Monus’s - a situation where “if amended Rule 33 were

applied . . . , [the defendant’s] three-year period for filing a

motion for new trial . . . would have expired before the

amendments to Rule 33 even went into effect” - would be one

where applying the amended rule would be unjust and

impracticable. Id. We therefore decline to apply the amended

rule. 

Even under the old Rule 33, however, the overwhelming

weight of authority suggests that Monus’s motion was

untimely still. This is because those circuits that have

construed “final judgment” in this context - the Sixth not yet

among them - have held that when a defendant’s conviction

is affirmed but sentence vacated, the two-year time limit runs

from the date of the affirmance of the conviction rather than

from the date of resentencing. See, e.g., United States v.

White, 557 F.2d 1249 (8th Cir. 1977); Howell v. United

States, 172 F.2d 213, 215-16 (4th Cir. 1949); see also United

States v. Erwin, 277 F.3d 727, 733 (5th Cir. 2001) (dating

“final judgment” from time of void judgment); United States

v. Lussier, 219 F.3d 217, 219-20 (2d Cir. 2000) (same). Thus,

construing “final judgment” this way, the two-year time

period for Monus would have begun to run on October 24,

1997, the date on which this court issued its mandate

affirming his conviction, and far more than two years prior to

Monus’s March 12, 2001 motion for new trial. 

Finally, Monus argues that because the new evidence at

issue here is alleged to be Brady evidence, the time-limitation

for filing his motion should be relaxed. See generally Brady

v. Maryland, 373 U.S. 83, 87 (1963) (holding that “the

suppression by the prosecution of evidence favorable to an

accused upon request violates due process”). This line of

argument was not advanced below, however, and thus this

court need not consider it now. See Saylor v. United States,

315 F.3d 664, 669 (6th Cir. 2003).

6 United States v. Monus No. 02-4102

2

[I]n the case of a defendant who has been sentenced to

a term of imprisonment based on a sentencing range

that has subsequently been lowered by the Sentencing

Commission . . . , upon motion of the defendant or the

Director of the Bureau of Prisons, or on its own

motion, the court may reduce the term of

imprisonment, after considering the factors set forth in

section 3553(a).

18 U.S.C. § 3582(c)(2). 

3

After the 1995 sentencing of Monus but before the 2001

amendments, the “affect[ing] a financial institution” section was moved

to § 2F1.1(b)(8)(B). (The language stayed the same.). The 2001

amendments eliminated § 2F1.1(b)(8)(B) and moved the revised section

to its present location, § 2B1.1(b)(12)(A). 

Motion for Sentence Reduction Under 18 U.S.C. § 3582(c)

Monus’s motion for sentence reduction under 18 U.S.C.

§ 3582(c)2 relies on the November 2001 amendments to the

guidelines,which included an overhaul of the financial crimes

guidelines. In 1995, when Monus was sentenced, he received

a four-level enhancement because his offense “affected a

financial institution and [he] derived more than $1,000,000 in

gross receipts from the offense.” USSG § 2B1.1(b)(6)(B)

(1995). This language was altered as part of the November

2001 amendments, however. The post-2001 language, found

in § 2B1.1(b)(12)(A), provides that, “[i]f the defendant

derived more than $1,000,000 in gross receipts from one or

more financial institutions as a result of the offense, increase

by 2 levels.” USSG § 2B1.1(b)(12)(A) (2002).3

While Monus concedes that the 2001 amendments “as a

whole” are substantive in nature, he advances what he calls a

“specific argument” that the 2001 amendment clarified what

it means to “affect” a financial institution such that the district

court erred in denying retroactive application. Of course,

clarifications of the guidelines have retroactive application

while substantive changes do not. United States v. Williams,

940 F.2d 176 (6th Cir. 1991). He places particular reliance on
No. 02-4102 United States v. Monus 7

the explanatory note to the 2001 amendment, which in part

provides that 

[t]he enhancement also was modified to address issues

about what it means to “affect” a financial institution and

how to apply the enhancement to a case in which there

are more than one financial institution involved.

Accordingly, the revised provision focuses on whether

the defendants derived more than $1,000,000 in gross

receipts from one or more financial institutions as a result

of the offense.

USSG App. C, Amendment 617, at 179.

Given the specificity of the question presented, it is no

surprise that this court has not yet had occasion to pass on this

issue. However, the Seventh Circuit did in United States v.

Hartz, 296 F.3d 595 (7th Cir. 2002). It squarely rejected the

very argument advanced by Monus in the instant appeal. It

looked to three factors in determining if USSG

§ 2B1.1(b)(12)(A) is properly considered a clarification or a

substantive change: “(1) how the Sentencing Commission

characterized the amendment; (2) whether the amendment

changes the language of the guideline itself or changes only

the commentary for the guideline; and (3) whether the

amendment resolves an ambiguity in the original wording of

the guideline.” Id. at 599 (citations omitted). Noting the

absence of any indication that the Commission intended the

amendment to be clarifying, the fact that the amendment

changed the plain language of the guideline itself, and the

unambiguity of the original version, it found the amendment

substantive. Id.

The opinion in Hartz is well-reasoned and persuasive. We

therefore adopt its reasoning.

8 United States v. Monus No. 02-4102

4Monus styled his motion as an “Application for Relief from

Judgment or Motion for Sentence Reduction as if Under Rule 35(b) or in

the Nature of a Writ of Coram Nobis.” The district court did not address

the Rule 35(b) part of this motion, in all likelihood because it had already

ruled on the issue in an order dated March 30, 2000. In any event, such

a motion is wholly without merit because, as the district court explained,

the plain language of the rule makes clear that only the government can

bring a Rule 35(b) “substantial assistance” motion. The government’s

decision is not to be questioned unless the defendant can make a

substantial threshold showing of an unconstitutional motive for refusing

to make the motion, see United States v. Bagnoli, 7 F.3d 90, 92 (6th Cir.

1993), and no such showing was made here. 

Motion for Writ of Error Coram Nobis

“A prisoner in custody is barred from seeking a writ of

error coram nobis.” United States v. Johnson, 237 F.3d 751,

755 (6th Cir. 2001). This is the case even if, as here, § 2255

relief is no longer available. Id. Because Monus remains in

custody, he is barred from seeking the writ.4

AFFIRMED.