CERTIFICATE AS TO PARTIES,

RULINGS, AND RELATED CASES

Pursuant to Circuit Rule 28(a)(1), appellant, Angel xxxxxx hereby states as follows:

A. Parties and Amici: The parties below were the appellant, Angel xxxxxx, and the appellee, the United States of America. There are no amici.

B. Rulings Under Review: The District Court's denial of the motion for new trial in Mr. xxxxxx' case is reported as United States v. Victor Sanchez, 917 F.Supp. 29 (D.D.C. 1996).

C. Related Cases: This case has not been before this Court or any other court previously.

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

STATUTES AND RULES viii

JURISDICTION viii

ISSUES PRESENTED viii

STATEMENT OF THE CASE

A. Procedural History

B. Trial Proceedings

C. The New Trial Litigation

D. The District Court's Ruling

ARGUMENT

Summary of Argument

Standard of Review

I. Mr. xxxxx Was Denied Effective Assistance of Counsel

A. Mr. xxxxx Demonstrated Prejudice Below

1. Mr. xxxxx Was Prejudiced Because There Was A Reasonable Probability That He Would Have Proceeded To Trial But For His Counsel's Ineffectiveness

2. Mr. xxxxx Had A Colorable Claim Of Innocence

B. It Was Objectively Unreasonable For Silver To Have Failed To Use An Interpreter During His Meetings With Mr. xxxxx

CONCLUSION

CERTIFICATION OF BRIEF LENGTH

CERTIFICATE OF SERVICE

ADDENDUM

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No.

UNITED STATES OF AMERICA, Appellee

ANGEL xxxxxx, Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF OF APPELLANT ANGEL xxxxxx

STATUTES AND RULES

Pursuant to Rule 28(f), Federal Rules of Appellate Procedure and D.C. Circuit Rule 28(a)(5), the pertinent statutes are set forth in the Addendum to this brief.

JURISDICTION

The District Court had jurisdiction under 28 U.S.C. з2255. A timely notice of appeal having been filed within the 10-day period permitted under Federal Rule of Appellate Procedure 4(a), this Court has jurisdiction under 28 U.S.C. з2253.

ISSUE PRESENTED

I. Whether a claim of ineffective assistance of counsel may be raised as a claim of newly discovered evidence in a motion for new trial filed pursuant to F.R.Cr.P. 33.

STATEMENT OF THE CASE

A. Procedural History

On October ??, 1990, Mr. xxxxxx and his co-defendant⁽¹⁾ were charged by indictment with possession with intent to distribute 50 grams or more of a mixture and substance containing cocaine base, in violation of 21 U.S.C. зз 841(a)(1) and 841(b)(1)(A)(iii), and Count II, possession with intent to distribute a mixture and substance containing cocaine hydrochloride, in violation of 21 U.S.C. зз 841(a)(1) and 841(b)(1)(C)

Mr. xxxxxx and xxxxxxxx were arraigned on November 30, 1990 and the trial commenced on January 28, 1991, before the Honorable Royce C. Lamberth. On January 29, 1991, Mr. xxxxxx, who had been in a half-way house, failed to appear for trial and a bench warrant was issued. 917 F.Supp. at 30. The trial concluded and the jury commenced their deliberations. The next day, January 30, 1991, the jury convicted Mr. xxxxxx in absentia on both counts of the indictment. Id.

On July 12, 1994 Mr. xxxxxx was arrested on the bench warrant and was ordered held without bond. Pursuant to F.R.Cr.P. 33, on July 31, 1995 a motion for new trial was filed on Mr. xxxxxx' behalf alleging that his counsel at trial rendered ineffective assistance of counsel. 917 F.Supp. at 31. A hearing was held on that motion on September 21, 1995 and on February 23, 1996 the district court issued a written memorandum opinion denying the motion for new trial on procedural grounds. See United States v. Victor Sanchez, 917 F.Supp. 29 (D.D.C. 1996). On March 15, 1996 a pre-sentencing hearing was held and on March 20, 1996, Mr. xxxxxx was sentenced to 235-months of imprisonment, to be followed by five years of supervised release. Mr. xxxxxx filed a timely notice of appeal on March 29, 1996.

B. Trial Proceedings

Mr. xxxxxx was arrested on October 25, 1990 near the Greyhound bus station in Washington D.C. after departing from a bus that arrived from New York City. 01/28/91 Tr. 76-79.⁽²⁾ Detective Ronnie Hairston, of the Metropolitan Police Department's Drug Interdiction Unit, arrested Jannette xxxxxxxx, a co-defendant who ultimately testified for the government against Mr. xxxxxx at trial, after the police found drugs in her bag. 01/28/91 Tr. 76-79.⁽³⁾ According to Hairston, xxxxxxxx claimed that someone put the drugs there, gave Hairston a description of that person, pointed to Angel xxxxxx and he was then arrested. 01/28/91 Tr. 79-80.

Under the government's theory xxxxxxxx was a mule hired by Mr. xxxxxx to carry the drugs from New York City to the District of Columbia. 01/28/91 Tr. 66-70. The sole basis upon which the government's theory rested was the word of xxxxxxxx. 01/28/91 Tr. 94-142.

At trial she testified that during the early morning hours of October 25, 1990, she was introduced to Mr. xxxxxx in New York City by people she knew in the neighborhood. Although she had never met him before, she stated that Mr. xxxxxx asked her if she would be willing to carry a package to Washington and then offered her $300 to do it. She agreed. 01/28/91 Tr. 99-102.

xxxxxxxx claimed that later that same morning, Mr. xxxxxx returned to the area where they had been introduced and told her to go upstairs to her apartment and get a bag packed with some clothes. She stated that she did this and then returned to meet Mr. xxxxxx, who was waiting with another man who she had never seen before. She could not recall anything about the second person. 01/28/91 Tr. 102-103.

According to xxxxxxxx Mr. xxxxxx then took the bag from her as she went around the corner to buy cigarettes. She said that when she came back, he returned the bag to her and told her that it contained drugs, and she was to take it to Washington. 01/28/91 Tr. 103-104.

xxxxxxxx stated that the two of them took a taxi together to the Port Authority in New York, and that Mr. xxxxxx paid the taxi fare. 01/28/91 Tr. 108-109. She claimed that he then bought two bus tickets to Washington and instructed her that once they arrived at Washington, she was to walk to a taxi stand, behaving as if she did not know him. According to xxxxxxxx Mr. xxxxxx gave her ten dollars for the taxi and told her that if anything went wrong, she was to go to 710 Kennedy Street, N.W. in the District of Columbia. 01/28/91 Tr. 107-110. According to xxxxxxxx, she wrote the address down on a little card that Mr. xxxxxx gave her. She said the front of the card had the word "Angel" written on it. 01/28/91 Tr. 106-107.

xxxxxxxx claimed that they took the bus to Washington together, arriving in the mid-afternoon. xxxxxxxx admitted that while on the bus she sniffed a bag of heroin. 01/28/91 Tr. 109. According to her, Mr. xxxxxx instructed her to get off first and go to the taxi stand as he followed her. 01/28/91 Tr. 110.

The defense argued that although xxxxxxxx was a mule hired by someone else, that person was not Mr. xxxxxx and that he had no association with her. 01/29/91 Tr. 221-226. The defense pointed out that, based upon her plea agreement with the government, xxxxxxxx had a motive to lie about Mr. xxxxxx in exchange for a lesser sentence. 01/29/91 Tr. 226. Other than xxxxxxxx' word, which was significantly impugned,⁽⁴⁾ there was an overwhelming lack of evidence linking Mr. xxxxxx with xxxxxxxx.

xxxxxxxx portrayed Mr. xxxxxx as one who had access to significant amounts of cash. According to her, he had offered her $300 to carry the drugs (1/28/91 Tr. 102), had given her money for taxis (1/28/91 Tr. 104, 110), and had bought two bus tickets from New York to the District of Columbia. 1/28/91 Tr. 128. When Mr. xxxxxx was arrested, however, there was no significant amount of money found on him, although, under the government's theory, he intended to go back to New York. 01/29/91 Tr. 224.

According to xxxxxxxx Mr. xxxxxx handed her a card with his name on the back, 01/28/91 Tr. 105-107, 135, but handwriting expert Michael Kane testified that the writing on the card was not Mr. xxxxxx'. 01/29/91 Tr. 200-201.

Finally, there was no evidence of Mr. xxxxxx' fingerprints found on any of the tangible evidence in the case, and no drugs or indicia of drug distribution were found on Mr. xxxxxx at the time of arrest. In short, the jury's verdict rested upon xxxxxxxx' word.

C. The New Trial Litigation

In his July, 1995 motion for new trial Mr. xxxxxx' argued that (A. ). In its August 8, 1995 Opposition the government contended . (A. ). Mr. xxxxxx filed a reply to the government's opposition on September 18, 1995. On September 21, 1995, the district court heard argument on the procedural aspects of the motion only, at which time Mr. xxxxxx' counsel explained that the law in this Circuit permits a motion for new trial based upon newly discovered evidence to be premised upon ineffective assistance of counsel. See 9/21/95 Tr. at 3-5. See also 9/21/95 Tr. at 16-17. She further argued that an ineffectiveness claim did not have to be brought under Rule 33 within seven days after the verdict because where the basis of the claim was an inability to communicate with counsel, who was the very person upon whom Mr. xxxxxx relied to communicate with the court, i.e. "his only mouthpiece," see 9/21/95 Tr. at 8, it would be "illogical" for Mr. xxxxxx to be able to bring his counsel's ineffectiveness to the court's attention. See 9/21/95 Tr. at 6. Moreover, Mr. xxxxxx' counsel advised the district court that there would be testimony to establish how difficult it was for Mr. xxxxxx to communicate, his level of English language proficiency, and the level of English language proficiency required to communicate with a lawyer who did not speak one's native tongue." 9/21/95 Tr. at 6-7. See also 9/21/95 Tr. at 10. Finally, citing United States v. Kelly, 790 F.2d at 134, Mr. xxxxxx' counsel argued that where the claim for a new trial was constitutional in nature, the five-part test set forth in United States v. Thompson, did not apply and therefore, Mr. xxxxxx would not have to show that there would be an acquittal at his re-trial to prevail. See 9/21/95 Tr. at 8-9. In this case, defense counsel explained, that the gravamen of the ineffectiveness claim, i.e., Mr. xxxxxx' inability to communicate with his trial attorney affected, inter alia, his decisions whether to testify at trial, whether to accept a plea offer, whether to cooperate with the government. 9/21/95 Tr. at 17-18.

The government argued that Rule 33 contemplated two kinds of new trial motions: evidentiary and non-evidentiary and that the latter had to be raised within seven days of the jury's verdict. See 9/21/95 Tr. at 12. The government erroneously urged the court to apply the outcome-determinative standard of whether an acquittal would result from the evidence that Mr. xxxxxx' trial counsel had been ineffective. 9/21/95 Tr. at 12. The government contended that the appropriate procedural vehicle for Mr. xxxxxx' ineffectiveness claim was a petition filed pursuant to 28 U.S.C. з 2255. 9/21/95 Tr. at 12-13, 19-20.

On October 19, 1995 the district court ordered supplemental briefing of two additional jurisdictional issues: 1) whether "after final judgment" in Rule 33 referred to the time of sentencing or the exhaustion of all appellate remedies, or whether it referred to two years from the time of conviction; and 2) whether the district court had jurisdiction to consider the merits of Mr. xxxxxx' claim in light of the two-year limit.

On October 27, 1995, the government answered that the two-year limit was based upon two years from the exhaustion of appellate remedies, but that Mr. xxxxxx' claim was governed by the seven-day limit after the jury's verdict for claims other than those involving newly discovered evidence.

In his October 30, 1995 pleading, Mr. xxxxxx agreed that Rule 33's language within two years "after final judgment" referred to two years after sentencing or the exhaustion of all appellate remedies, and that therefore the district court had jurisdiction to consider the merits of his ineffectiveness claim.

D. The District Court's Ruling

The district court denied the motion for new trial ruling that a claim of ineffective assistance of counsel did not constitute "newly discovered evidence" and therefore could not properly be brought through a Rule 33 motion within two years of final judgement. 917 F.Supp at 31-33. Without ever reaching the merits of the ineffectiveness claim, the district court's ruling focussed upon whether a motion for a new trial under FED.R.CR.P. 33 was the proper procedural mechanism by which to litigate the ineffectiveness of Mr. xxxxxx' trial counsel.

In relevant part the district court stated that "evidence known but unappreciated by defendant at the time of trial will rarely, if ever, constitute 'newly discovered evidence' under Rule 33." 917 F.Supp. at 30. Rejecting the long-standing rule in this Circuit, the district court ruled that "evidence of ineffective assistance of counsel does not constitute 'newly discovered evidence' under Rule 33 where facts supporting the claim were within defendant's knowledge at the time of trial." 917 F.Supp. at 31 (citing cases).

In adopting the rule followed in some other jurisdictions, the district court explained:

[T]he District of Columbia's stand-alone status in its Rule 33 jurisprudence does not prompt this court to reject the approach established [in other circuits]. Rather, it is because this approach upsets the balance of competing interests struck by the existing structure of post conviction relief and contradicts the plain meaning of Rule 33 that this court is compelled to disavow District of Columbia precedent and embrace the approach taken by all other federal courts in this country.

*****

This court refuses to perpetuate a legal fiction that turns a blind eye to facts which are of decisive importance in every other federal court in this nation. A court cannot remain true to the system of post-conviction rights and remedies -- of which Rule 33 and the 'newly discovered evidence' clause are a part -- and perpetuate the legal fiction that would afford the relief sought by the defendant in this case. The time has come for federal courts in the District of Columbia to abandon this debilitative jurisprudence.

917 F.Supp. at 32, 33.

ARGUMENT

Summary of Argument

The district court erred in each of its findings and conclusions.

Standard of Review

Because the law in this Circuit is that a motion for new trial based upon newly discovered evidence properly lies for a trial "marred by a sixth amendment or Brady violation," United States v. Kelly, 790 F.2d 130, 133 (D.C. Cir. 1986), this Court should review the district court's ruling under the de novo standard, United States v. Zuno-Arce, 44 F.3d 1420, 1425 (9th Cir. 1995); United States v. Hughes, 33 F.3d 1248, 1251 (10th Cir. 1994), rather than under the otherwise applicable abuse of discretion standard, which applies when the district court rules upon the merits of the new trial motion. United States v. Townsend, 983 F.2d 1102 (D.C. Cir. 1993); United States v. Kelly, 790 F.2d at 134.

A Motion For New Trial Lies Where The Accused Has

Received Ineffective Assistance of Counsel

Under Rule 33, a new trial based on "newly discovered evidence" may be granted if it is made before or within two years of "final judgement." In Mr. xxxxxx' case there had been no "final judgment," since Mr. xxxxxx had not even been sentenced yet, and therefore the motion was timely.⁽⁵⁾

The law in this Circuit has long been that where an accused has received ineffective assistance of counsel, s/he is entitled to a new trial under FED. R. CR. PROCED. 33. United States v. Thompson, 475 F.2d 931 (D.C. Cir. 1973); United States v. Brown, 476 F.2d 933, 935 (D.C. Cir. 1973); United States v. DeCoster, 487 F.2d 1197, 1201-05 (D.C. Cir. 1973). See also United States v. Cronic, 466 U.S. 648, 667 n.42 (1984). The availability of a motion under Rule 33 as a vehicle for litigating an ineffectiveness claim has recently been reaffirmed by this Court. United States v. Fennell, 53 F.3d 1296, 1304 (D.C. Cir. 1995), citing United States v. Cyrus, 890 F.2d 1247, 1247 (D.C. Cir. 1989); DeCoster, 487 F.2d at 1201.

In Decoster, this Court held that a new trial is warranted, based upon ineffective assistance of counsel, when the accused does not receive "the reasonably competent assistance of an attorney acting as his diligent, conscientious advocate." 487 F.2d at 1202. See also United States v. Brown, 663 F.2d 229, 231 (D.C. Cir. 1981) (same). In Mr. xxxxxx' case the ineffectiveness claim was based upon a language barrier which precluded him from being able to communicate with his trial counsel. See LaFave and Israel, Criminal Procedure, з 11.4 at 36-37 (where accused "can establish 'good cause, such as a conflict of interest, a complete breakdown of communication, or an irreconcilable conflict which [could] lead . . . to an apparently unjust verdict,'" s/he is entitled to new counsel), citing McKee v. Harris, 649 F.2d 927 (2d Cir. 1981), cert. denied, 456 U.S. 917 (emphasis supplied). Since the facts supporting the claim were "outside the record," they constituted "newly discovered evidence" as this Circuit has defined that term. United States v. Pinkney, 543 F.2d 908, 916 (D.C. Cir. 1976).

As explained to the district court, it was not until he had a lawyer with whom he could communicate, that Mr. xxxxxx was able to convey the inadequacies of his trial counsel. 9/21/95 Tr. @ 6. Thus, those very inadequacies, i.e., trial counsel's inability to speak Spanish and her failure to secure the services of a Spanish-English interpreter in meeting with Mr. xxxxxx, denied him the "reasonably competent assistance of an attorney acting as his diligent and conscientious advocate." DeCoster, 487 F.2d at 1202. Those inadequacies also made it impossible for him to bring his claim before the court in any other fashion, or at any other time, than he did.

In Brown, the Court held that "where evidence of ineffectiveness of trial counsel is brought to attention of court for first time in support of new trial motion, that evidence is 'newly discovered' for purposes of new trial rule." Id. at 935 n. 11. See also United States v. Thompson, 475 F.2d at 932 ("'[defendant] may raise and more fully support [ineffective assistance of counsel] claim . . . on a motion for a new trial without excusing that action with a showing of earlier 'due diligence.'") (citation omitted); Marshall v. United States, 436 F.2d 155, 159 (D.C. Cir. 1970) ("counsel's lack of diligence at time of trial should be no barrier to considering a motion for a new trial on the merits of constitutional grounds raised").

In United States v. Kladouris, 739 F.Supp. 1221 (N.D. Ill. 1990), the accused filed a motion for new trial "nearly four months after the jury rendered its verdict." 739 F.Supp. at 1225. The district court granted the new trial motion holding that because the eight "facts" which gave rise to the ineffectiveness claim "were not known to Mr. Kladouris during the trial," he could raise the ineffectiveness claim "as newly discovered evidence." 739 F.Supp. at 1226. The court acknowledged that because the accused was "not a lawyer", . . . [h]he [could not] be expected to be aware of" the significance of the eight facts which rendered his counsel's representation constitutionally deficient. 739 F.Supp. at 1227. Likewise, in Mr. xxxxxx' case, because his trial counsel was his life-line and only means of communication with the district court, his inability to communicate with her meant that the district court was not apprised of her deficiencies. Kladouris, 739 F.Supp. at 1226 (rule in the District of Columbia Circuit "focuses upon what is known to the court, rather than what is known to the defendant").

While the rule in this Circuit is the minority view, at least four other circuits have acknowledged that the decisions in Thompson and Brown, teach that in this Circuit a claim of ineffective assistance of counsel is properly brought under Rule 33 as a motion for new trial based upon newly discovered evidence. See United States v. Smith, 62 F.3d 641, 649 n. 4. (4th Cir, 1995); United States v. Stocksill, 26 F.3d 492, 497 n. 9 (4th Cir.), cert. denied, U.S. , 115 S.Ct. 345 (1994); United States v. Thiel, 888 F.2d 1532, 1533 (7th Cir. 1989); United States v. Miller, 869 F.2d 1418, 1422 (10th Cir. 1989); United States v. Ugalde, 861 F.2d 802, 806 (5th Cir. 1988) (D.C. Circuit "line of cases appears to support the view that a defendant may raise a claim of ineffective assistance of counsel in a motion for new trial on grounds that such evidence constitutes newly discovered evidence, even if the facts underlying that claim were known to the defendant at the time of trial."), cert. denied, 490 U.S. 1097 (1989); United States v. Ellison, 557 F.2d 128, 133-134 (7th Cir.), cert. denied, 434 U.S. 965 (1977). In Miller the Tenth Circuit also stated that "[t]he Supreme Court implicitly recognized that a motion for a new trial on the ground of newly discovered evidence is a proper vehicle for assertion of an ineffective assistance of counsel claim." 869 F.2d at 1422, citing United States v. Cronic, 466 U.S. 648, 667 n. 42 (1984).

Moreover, even Circuits which do not customarily permit an ineffective assistance of counsel claim to form the basis of a motion for new trial, have adopted an "awareness" test which allows an ineffectiveness claim to be brought through a motion for new trial, where the accused was not "aware of all of the information upon which the claim of ineffective assistance is based," as was true in Mr. xxxxxx' case. See United States v. Laird, 948 F.2d 444, 446 (8th Cir. 1991). See also United States v. Smith, 62 F.3d at 649 n. 4, citing Laird; United States v. Seago, 930 F.2d 482, 489-490 (6th Cir. 1991); United States v. Lema, 909 F.2d 561, 565-566 (1st Cir. 1990); United States v. Miller, 869 F.2d at 1421; United States v. Lara-Hernandez, 588 F.2d 272, 275 (9th Cir. 1978) (per curiam); Kladouris, 739 F.Supp. at 1225-1226.

In Mr. xxxxxx' case the facts underlying the claim were not discovered until counsel other than his trial counsel assumed Mr. xxxxxx' representation. See 9/21/95 Tr. at 6. As the district court was aware at the time of the hearing on the new trial motion, Mr. xxxxxx had witnesses on the merits of his claim. 9/21/95 Tr. at 3, 10. Thus, the evidence of the claim was newly discovered. Accordingly, even in the First, Sixth, Eighth and Ninth Circuits Mr. xxxxxx would have been able to bring his ineffective assistance of counsel claim under Rule 33.

Where the basis for the Mr. xxxxxx' Rule 33 motion was the ineffectiveness of trial counsel, the five-part test for whether a new trial should be granted first outlined in United States v. Thompson, supra does not apply. In United States v. Kelly, 790 F.2d 130, 133 (D.C. Cir. 1986), a panel of this Court specifically stated that "[t]he Thompson test does not, . . . , govern motions for new trial when the newly-discovered evidence indicates that the original trial was marred by a sixth amendment or Brady violation." In Kelly the Court further explained:

In the sixth amendment context, the [Supreme] Court has refused to apply traditional standards governing new trial motions because '[t]he high standard for newly discovered evidence claims presupposes that all essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged.' Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2068 (1984). In assessing whether a new trial motion adequately alleges a sixth amendment violation, this court has looked not to the Thompson standards but to whether the motion has 'set forth evidence upon which the elements of a constitutional[] violation[] might properly be found.'"

790 F. 2d at 133-134, citing United States v. Pinkney, 543 F.2d 908, 916 (D.C. Cir. 1976).

The new trial standard of "reasonably competent assistance of an attorney acting as [the accused's] diligent conscientious advocate" imposes a significantly lighter burden on the accused to prevail in a new trial motion than the standard for a challenge to ineffective assistance of counsel under collateral attack. United States v. DeCoster, 487 F.2d at 1202 (" 'a more powerful showing of inadequacy is necessary to sustain a collateral attack than to warrant an order for a new trial . . .'") (citing Bruce v. United States, 379 F.2d 113, 116-117 (D.C. Cir. 1967). On collateral claims in this Circuit, the accused has a "heavy burden" to show "gross incompetence of counsel" and "prejudice." Bruce, 379 F.2d at 117.

Under the district court's ruling, rejecting a Rule 33 motion as a means by which to bring an ineffectiveness claim, rather than showing "a substantial violation of counsel's duties," after which the burden would shift to the government to show "lack of prejudice therefrom," Pinkney, 543 F.2d at 916 n. 59, the burden will fall upon Mr. xxxxxx to establish, under a з 2255 motion, both that his trial counsel's performance fell below and that he suffered prejudice therefrom. Strickland v. Washington,

In short, Mr. xxxxxx raised his ineffective assistance of counsel claim through the proper procedural vehicle and testimony at a hearing on the motion would have established that he was denied effective assistance of counsel and was therefore entitled to a new trial.

The untenable result of the district court's conclusion that "evidence of ineffective assistance of trial counsel known to but unappreciated by the defendant at the time of trial does not constitute 'newly discovered evidence' for purposes of Rule 33," 917 F.Supp at 33 (emphasis supplied), is exemplified by the facts in Mr. xxxxxx' case. As explained to the district court during argument on the motion for new trial, Mr. xxxxxx' conundrum was the very communication barrier which rendered his trial counsel's performance below a constitutionally acceptable standard: Mr. xxxxxx, who could not "speak, write or understand English in any meaningful fashion,"⁽⁶⁾ could not communicate with his trial counsel who was unable to speak with him in Spanish. Thus, as explained to the district court, since Mr. xxxxxx could not convey to the court his inability to communicate with his lawyer, "the very problem that [was] the . . . gravamen of the ineffectiveness [was] the same impediment to conveying that [language] barrier. . . . [T]here would be no other way [than relying on his non-Spanish-speaking attorney] for him to bring it to the court's attention." 9/21/95 Tr. at 6. Accordingly, under the standard enunciated in DeCoster, he was denied the "reasonably competent assistance of an attorney acting as his diligent, conscientious advocate." 487 F.2d at 1202.

The Language "After Final Judgment" In Rule 33 Should Be

Interpreted To Mean Within Two Years After Sentencing

Or The Exhaustion Of All Appellate Remedies

In United States v. Dayton, 981 F.2d 1200 (11th Cir. 1993), the Eleventh Circuit acknowledged that "without exception . . . every . . . circuit which has addressed the issue" of whether "final judgement" under rule 33 refers to the time of the issuance of the mandate by the court of appeals or the "original judgment of conviction," has ruled that the issuance of the mandate by the appellate court is the triggering event for the running of the two-year time limit. 981 F.2d at 1202, citing, inter alia,

By contrast, there is no case from the District of Columbia Circuit which appears to follow the view that a motion for new trial based upon ineffective assistance of counsel must be filed within two years of the original judgment of conviction.⁽⁷⁾ Moreover, even the Ninth Circuit, after its decision in Lara-Hernandez ruled that "under Rule 33, 'final judgment' is defined as the date on which the appellate process 'is terminated.'" United States v. Cook, 705 F.2d 350, 351 (9th Cir. 1983), citing, inter alia, Smith, supra. Under either interpretation, however, Mr. xxxxxx' motion for a new trial was timely and the district court should have reached its merits.

The District Court Had Jurisdiction To Consider Mr. xxxxxx' Motion For New Trial Under Either Interpretation Of The Jurisdictional Limits Of Rule 33 Because He Filed His Motion Before Sentencing, i.e. Before Or Within Two Years After "Final Judgment"

The district court unquestionably had jurisdiction to reach the merits of Mr. xxxxxx' motion for new trial. The only argument that the Court lacked such jurisdiction required the court below to rule that because the motion was filed more than two years after the verdict in this case, it was not timely filed. As demonstrated below, such a ruling was wholly without support in the existing case law.

The language of Rule 33 itself makes clear that there is a distinction between a "verdict or finding of guilty" and a "final judgment." See also Note 1, supra. This is apparent because, where the basis for the new trial motion is other than newly discovered evidence, the motion must be "made within seven days after verdict or finding of guilty" (or such other time as the trial court may allow). In contrast, a motion for new trial based upon newly discovered evidence "may be made only before or within two years after final judgment." Thus, the very language of Rule 33 makes a distinction not only in the time limits applicable to the various bases for a new trial motion, but also in the event which triggers the running of the new trial clock, i.e. the "verdict or finding of guilty" under some circumstances, and the "final judgment" under other circumstances.

Clearly Mr. xxxxxx' motion for new trial was based upon newly discovered evidence, i.e., evidence that he and his trial counsel were unable to communicate in the absence of a Spanish-English interpreter. The case-law in this circuit has recognized that a motion for new trial based on ineffective assistance of counsel is a motion based upon newly discovered evidence. United States v. Decoster, 487 F.2d 1197, 1201-05 (D.C. Cir. 1973); United States v. Thompson, supra; United States v. Brown, supra. See also United States v. Cronic, 466 U.S. 648, 667 n.42 (1984). Accordingly, the applicable time limit for Mr. xxxxxx' motion was that which applies to motions based upon newly discovered evidence, i.e. "before or within two years after final judgment." F.R.Cr.P. 33 (emphasis supplied).

Since Mr. xxxxxx had not been sentenced when he filed his Rule 33 motion, that motion was filed before final judgment.

The structure of Rule 33 also supports this view because if the framers of the rule intended the two-year time limit to refer to the verdict or finding of guilty, clearly they knew how to say so since they used precisely that benchmark with respect to motions based upon grounds other than newly discovered evidence.

In short, regardless of whether the two-year time limit is construed to mean two years after sentencing or the exhaustion of all appellate remedies, see Dayton, supra, or two years from the original judgment of conviction, Mr. xxxxxx' motion was timely filed, because the original judgment of conviction did not occur when the jury rendered its verdict. It only occurred at the time of sentencing on March 20, 1996.⁽⁸⁾

Conclusion

The district court's denial of Mr. xxxxxx' motion for new trial should be reversed and his case remanded for a consideration of the merits of his ineffectiveness claim.

Respectfully submitted,

A. J. KRAMER

FEDERAL PUBLIC DEFENDER

Santha Sonenberg

Assistant Federal Public Defender

On Behalf of Angel xxxxxx

625 Indiana Avenue, N.W.

Washington, D.C. 20004

(202) 208-7500

CERTIFICATION OF BRIEF LENGTH

Pursuant to D.C. Circuit Rule 28(d)(1), undersigned counsel hereby certifies that this brief includes no more than 12,500 words.

Santha Sonenberg

CERTIFICATE OF SERVICE

This is to certify that on this 2d day of December, 1996, two copies of the foregoing Brief for Appellant and one copy of the accompanying Appendix were personally served upon the Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001 by hand-delivery.

Santha Sonenberg

1. The co-defendant was Jannette R. xxxxxxxx, who entered a guilty plea and cooperated with the government by testifying against Mr. xxxxxx at trial.

2. 1"Tr." refers to the 255-page official transcript of the trial proceedings in this case on January 28-29, 1991.

3. Shortly after leaving the bus, xxxxxxxx was approached by Detective Hairston who testified that before searching her bag, he asked xxxxxxxx if she had any drugs. 01/28/91 Tr. 87. Although she initially denied having drugs, she subsequently admitted carrying them but claimed she was unaware they were in her bag. 01/28/91 Tr. 91, 111-113.

4. Compare 01/28/91 Tr. 114 (xxxxxxxx claimed that on the day of their arrest Mr. xxxxxx was wearing green pants and a green shirt), with 01/29/91 Tr. 222 (picture taken of Mr. xxxxxx on day of his arrest revealing that he was wearing gray pants and a sweater).

5. In Smith v. United States, 283 F.2d 607, 610 (D.C. Cir. 1960), cert. denied, 364 U.S. 938 (1961), the District of Columbia Circuit made it clear that a final judgment does not occur until the appellate process has been completed. 283 F.2d at 610-611. See also Casias v. United States, 337 F.2d 354, 356 (10th Cir. 1964) ("All the courts which have considered the meaning of 'final judgment' have accorded significance to the distinction between 'final judgment' and 'verdict or finding of guilty' and have concluded that 'final judgment' included the mandate or affirmance from the appellate court"); Douglas v. United States, 240 F. Supp. 381, 382 n. 7 (S.D.N.Y. 1965), citing, Smith, supra; Harrison v. United States, 191 F.2d 874, 876 (5th Cir. 1951) (distinguishing 'final judgment' and 'after verdict or finding of guilty' and noting that the former includes issuance of the mandate from the appellate court), cited in Dayton, supra. All federal courts that have discussed the meaning of "final judgment" have defined it to mean "issuance of mandate of affirmance of conviction by appellate court," rather than the trial court's entry of judgment of conviction. Romero v. United States, 28 F.3d 267, 268 (2nd Cir. 1994); United States v. Dayton, 981 F.2d 1200, 1202 (11th Cir. 1993); United States v. Ostrer, 422 F. Supp. 93, 97 (S.D.N.Y. 1976) ("it is settled law that a conviction does not become a final conviction until sentence has been imposed and until the time for an appeal from the judgment has expired.").

Cases from the Supreme Court as well as from this Circuit definitively establish that in a criminal case final judgment means the date on which the accused is sentenced. See Berman v. United States, 302 U.S. 211, 212 (1937); United States v. Fogel, 829 F.2d 77, 83 (D.C. Cir. 1987), citing Miller v. Aderhold, 288 U.S. 206, 210-211 (1933) ("In a criminal case final judgment means sentence"); United States v. Richardson, 702 F.2d 1079, 1081 n. 8 (D.C. Cir. 1983), rev'd on other grounds, 468 U.S. 317 (1984), ("'Final judgement in a criminal case means sentence. The sentence is the judgment.'"), quoting Parr v. United States, 351 U.S. 513, 518 (1956); United States v. Liddy, 510 F.2d 669, 686 (D.C. Cir. 1974) ("The final judgment in a criminal case is the sentence.") (citations omitted), cert. denied, 420 U.S. 980 (1975). See also United States v. Leonard, F.3d , 1995 WL 582195 (2d Cir. 1995) (equating "judgment" with sentencing); Cook v. United States, 171 F.2d 567, 569 (1st Cir.) (suggesting that judgment is the sentence imposed), cert. denied, 336 U.S. 926 (1949); Bennett v. Collins, 852 F.Supp. 570, 573 (E.D. Texas 1994) (suggesting that "judgment" means conviction and sentence).

6. 917 F.Supp. at 30.

7. Even in Lara-Hernandez the Ninth Circuit recognized that where, at the time of trial, the accused was unaware of the facts giving rise to the ineffective assistance of counsel claim, the seven-day limit on a Rule 33 motion would be inapplicable. 588 F. 2d at 275.

8. It is significant that even the Ninth Circuit's opinion in Lara-Hernandez, which appears to operate under the misapprehension that a verdict and a conviction are one and the same, would deem Mr. xxxxxx' motion as timely filed because, as an evidentiary hearing would have established, it was based upon other than "facts known to the accused at the time of trial." 588 F.2d at 275, citing inter alia, United States v. Lucas, 513 F.2d 689, 509 (D.C. Cir. 1975); United States v. Brown, 476 F.2d at 935 n. 11 (D.C. Cir. 1973); United States v. Thompson, supra. Indeed, the government conceded at the hearing on the motion for new trial held on September 21, 1995, that if Mr. xxxxxx' claim was evidentiary, the seven-day rule did not apply. See 9/21/95 Tr. at 12. Mr. xxxxxx' claim was absolutely evidentiary; the unique nature of the ineffectiveness claim did not allow it to be decided without Mr. xxxxxx adducing testimony and other evidence regarding his inability to communicate in, and understand the English language.