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U.S. v. KIM

United States District Court, S.D. New York


September 2, 2005.

UNITED STATES OF AMERICA,
v.
NAM PYO KIM, Defendant.

The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge

OPINION

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 attorney.

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 basis.

  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 sentenced.

  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.

  SO ORDERED.

20050902

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