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Case 0:02-cr-00037-DSD-SRN Document 190 Filed 10/31/2005 Page 1 of 2

Criminal No. 02-37(DSD/SRN)


United States of America,

Jeffery J. Thigpen,



This matter is before the court upon defendant’s motion for
new trial based on newly discovered evidence pursuant to Federal
Rule of Criminal Procedure 33. To support such a motion, “a movant
must produce newly discovered evidence, ‘that is [evidence]
discovered since the trial.’” United States v. Moore, 221 F.3d
1056, 1058 (8th Cir. 2000) (quoting United States v. Mosby, 12 F.3d
137, 138 (8th Cir. 1993) (per curiam)). Defendant has not
identified any newly discovered evidence in his case and the court
therefore properly construes defendant’s motion for a new trial as
not being based on newly discovered evidence.1

Federal Rule of Criminal Procedure 33 requires that “[a]ny
motion for a new trial grounded on any reason other than newly
discovered evidence must be filed within 7 days after the verdict
or finding of guilt.” Fed. R. Crim. Pro. R. 33(b)(2). The time

1 If the court did not thus construe the motion, it would

nonetheless deny it as patently devoid of merit.

Case 0:02-cr-00037-DSD-SRN Document 190 Filed 10/31/2005 Page 2 of 2

constraints of Rule 33 are jurisdictional and therefore render this
court without jurisdiction to consider an untimely filed motion for
a new trial. See United States v. Spector, 888 F.2d 583, 584 (8th
Cir. 1989) (per curiam) (citing United States v. Beran, 546 F.2d
1316, 1319 n.1 (8th Cir. 1976)). Having failed to comply with the
requirements of Rule 33, this court does not have jurisdiction to
hear defendant’s untimely motion.

Accordingly, IT IS HEREBY ORDERED that defendant’s motion for

a new trial [Docket No. 188] is denied.

Dated: October 31, 2005

s/David S. Doty
David S. Doty, Judge
United States District Court