United States District Court, S.D. New York
September 2, 2005.
UNITED STATES OF AMERICA,
NAM PYO KIM, Defendant.
The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge
On January 27, 2005, after a 4-day trial, a jury found
defendant guilty of receiving stolen property in violation of
18 U.S.C. § 2315. Defendant has not been sentenced. On March 14,
2005 an attorney other than defendant's trial attorney, filed a
motion for a new trial. The motion was made under Fed.R. Crim.
P. 33, and under 28 U.S.C. § 1651 the "all writs" statute. The
alleged basis for the motion was inadequacy of the trial
A conference was held with the court on April 18, 2005. At that
time the court stated that the motion was too late to comply with
Rule 33. But the court stated that it would consider entertaining
the motion under 28 U.S.C. § 2255 or upon any other available
Subsequently, on May 18, 2005, the Government submitted its
opposition to the motion. The Government takes the position that
there is no available procedure under which defendant's motion
can be made at this time. In the alternative, the Government
argues that the motion is without merit. The court now rules that the motion must be denied. It was
filed too late to comply with the 7-day time requirement of Rule
33(b)(2). The other possible basis for the motion would be
28 U.S.C. § 2255. But such a motion can be made only by a "prisoner
in custody under sentence of a court." Defendant has not been
The court declines to express a view on the merits of the
motion. After defendant is sentenced, he will have the right to
appeal directly from the judgment. Whether thereafter he will
have any grounds for making a motion under § 2255 remains to be
seen. However, at least the requirement that there be a sentence
will be fulfilled.
Defendant's motion for a new trial is denied.
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