574 F2d 476 United States v. Rojas

574 F.2d 476

UNITED STATES of America, Plaintiff-Appellant,
Juan Gerardo ROJAS, Defendant-Appellee.

No. 76-3008.

United States Court of Appeals,
Ninth Circuit.

May 3, 1978.

Kathryne Ann Stoltz, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellant.

Susan Guberman, of Nasatir, Sherman & Hirsch, Beverly Hills, Cal., for defendant-appellee.


Before CHAMBERS and GOODWIN, Circuit Judges, and TURRENTINE, District Judge.


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Prior to our decision reported at 554 F.2d 938, there existed some confusion about the appealability by the government of an order granting a Rule 29(c) F.R.Cr.P., motion of acquittal. In addition, it has not been clear to some that a defendant can combine a motion for a new trial under Rule 33 with a motion for acquittal. To avoid prejudice to defendants whose trials are already completed, we adopt the following rules: In all cases where the verdict or finding of guilty occurs after June 1, 1978, defendant will be required to have made a timely motion in the district court for a new trial under Rule 33 to preserve that possibility should the granted motion of acquittal under Rule 29(c) be reversed on appeal. In earlier cases, such as the one now before us, the running times for a motion for a new trial will commence (Rule 33 F.R.Cr.P.) with the receipt of the mandate, or, if the mandate is formally spread, from the spreading.