US v. Woods
No. 03-10313 (3-4-05). Fed. R. Crim. P. 33 concerns a motion for new trial based on newly discovered evidence. The defendant was convicted of ban robbery in 1998. He filed the motion for new trial based on new evidence in 2001, which was a year after the 9th denied his appeal. In 1998, though, after his conviction, Rule 33 was amended to require such motions to be filed three years after the conviction or verdict. This would time-bar his motion. The amended rule applied to all pending cases if it was just and practicable. The 9th joins two other circuits in holding that the change in the rule was procedural, not substantive, and that it could be applied retroactively and that it wasn’t barred by ex post facto. The procedure worked to the defendant’s disadvantage, but it was not related to the substance of the offense. Nonetheless, the 9th remanded because the Rule itself allows the district court to determine if its retroactive application was indeed just and applicable under the circumstances.