District Court May Not Grant New Trial On Ground Not Raised in Defendant's Rule 33 Motion

United States v. Nguyen, No. 06-20598 (5th Cir. Nov. 7, 2007) (per curiam) (Benavides, Clement, Prado)

At the closing arguments during Nguyen's trial for possession of cocaine with intent to distribute, the Government made an argument during rebuttal that it had not made in its opening argument, and that Nguyen had not addressed during his argument. The court granted Nguyen surrebuttal so he could respond to the new argument. The jury found him guilty.

Nguyen filed a post-trial Rule 33 motion for new trial on the basis of newly discovered evidence. The district court granted the motion, but not on that basis. Instead, the court granted a new trial in the interest of justice, concluding that the Government violated Rule 29.1 by raising a new argument during rebuttal, and that Nguyen did not have an adequate opportunity to address that new argument, notwithstanding the court's grant of surrebuttal.

The Government appealed, arguing that a district court cannot grant a new trial on a ground not raised in a defendant's Rule 33 motion. This was an issue of first impression in the Fifth Circuit, and the court chose to adopt the reasoning of United States v. Newman, a Third Circuit case which held that "a district court is without the authority to grant a motion for new trial on a basis not raised by the defendant."

In making this determination, the court was persuaded, at least in part, by amendments to the rules pertaining to motions for new trial in both the federal criminal and civil rules of procedure. At the same time the drafters amended the criminal rule by adding the words “on motion of a defendant” to Rule 33, they expanded the district court’s power to grant a new trial in civil cases, specifically stating in Rule 59(d) of the Federal Rules of Civil Procedure that a new trial could be granted for “a reason not stated in the motion.” The Third Circuit reasoned that the drafters would have inserted similar language in the criminal rules if they intended a district court to have the power to grant a new trial on a basis not stated in the motion for new trial. We find that reasoning persuasive and hold that a district court does not have the authority to grant a motion for a new trial under Rule 33 on a basis not raised by the defendant.

(internal citations omitted). The Third Circuit also noted that "the '[c]ourts have recognized a few narrow exceptions' to this rule, including allowing a district court to treat a motion for judgment of acquittal as a motion for a new trial if the arguments raised justified a new trial." But the Fifth Circuit declined to reach that issue here, concluding that "although Nguyen’s motion for judgment of acquittal makes a passing reference to the prosecutor’s improper argument, it does not sufficiently raise the issue as a basis for a new trial." It therefore reversed the order granting Nguyen a new trial.