Yes, a defendant can ask the federal trial court for a new trial after a guilty verdict or finding. The court may grant one if the interest of justice requires; the verdict alone does not entitle the defendant to another trial. The first question for counsel is why a new trial is sought, because current Federal Rule of Criminal Procedure 33 has two different filing clocks measured from the verdict or finding of guilty—not from the sentencing date. Give counsel the verdict date, court calendar and proposed ground immediately.
| Proposed ground | Current Rule 33 filing period | What to gather now |
|---|---|---|
| Newly discovered evidence | Within three years after the verdict or finding of guilty under Rule 33(b)(1). | The new material, when and how it was found, earlier efforts to obtain it, and the trial evidence it affects. |
| Any other ground | Within 14 days after the verdict or finding of guilty under Rule 33(b)(2). | The exact event or ruling, trial transcript or exhibit, objections and verdict record. |
The three-year period is not a general extension for every post-verdict complaint. Counsel must decide whether the proposed material truly qualifies as newly discovered evidence before relying on that category. An older online copy of Rule 33 may still show a seven-day deadline for other grounds; the current rule says 14 days.
What counts as newly discovered evidence?
For a new-evidence motion in a Ninth Circuit federal case, the en banc court in United States v. Hinkson describes a demanding five-part inquiry: the evidence was actually discovered after trial; the defendant acted diligently to find it; it is material; it is not merely cumulative or merely impeaching under the ordinary test; and it indicates a new trial would probably result in acquittal. A new document repeating a fact known at trial is not necessarily new evidence. Nor does finding a conflicting statement automatically satisfy the test. The trial record and the role of that evidence in the case matter.
Preserve the original item and how it was obtained, without altering it. Note when it first became available, who had it, what steps the defense previously took to locate it, which trial testimony or exhibit it bears on, and why it could affect a new trial. Give counsel the trial transcript and exhibits as well. Do not contact jurors privately or circulate sealed or protected case material. These records help counsel assess the Hinkson factors; they do not predict whether the court will grant relief.
What if the deadline is near or an appeal is pending?
Do not assume a late motion will be accepted. Rule 45(a) excludes the triggering day, counts intermediate weekends and legal holidays, and generally moves a deadline ending on a weekend or legal holiday to the next qualifying day. Rule 45(b)(1) permits a court to extend a period before it expires for good cause, or after expiry on a party’s motion for excusable neglect. Whether an extension is available in an actual case requires counsel to check the docket, court orders and reason for delay; it is never an automatic pause.
If an appeal is already pending, Rule 33(b)(1) says the trial court may not grant a newly discovered evidence motion until the appellate court remands. Rule 37 provides an indicative-ruling procedure for a timely motion the trial court cannot grant while an appeal is pending. An appeal does not itself restart the Rule 33 filing clock. Counsel must coordinate the actual trial-court and appeal records before choosing a filing path.
A federal Rule 33 motion is different from a California new-trial motion under state law. Keep the verdict or finding, minute entries, sentencing and appeal notices, challenged transcript passages, and any claimed new evidence together so counsel can identify the federal ground and deadline. The Law Offices of David S. Chesley can review the trial papers and calendar with you. Call (800) 755-5174.