Federal Criminal New Trial Request Lawyer - Oberheiden, P.C.
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Request for New Trial: Rule 33 Federal Rules of Criminal Procedure

gavel and justice scale on a flag

Federal Fraud Defense Lawyers who Understand Criminal Procedure

Dr. Nick OberheidenAtorney-at-Law

When Can a Court Overturn the Jury?

When a criminal trial contains a series of factual and legal errors such that the defendant’s constitutional right to a fair trial has been violated, a court has the authority to overturn the jury’s verdict and to order a new trial with a different jury. In contrast to Rule 29, which challenges whether the evidence that was introduced at trial was legally sufficient, motions under Rule 33 demand a new trial in the interest of justice. In essence, the court sits as if it were a thirteenth juror, see United States v. Ashworth, 836 F.2d 260, 266 (6th Cir. 1988).

“In directing a judgment of acquittal, the Court makes a final disposition of the case. On the other hand, in setting the verdict aside the Court merely grants a new trial and submits the issues for determination by another jury. It is appropriate in the latter instance, that the Court should have wide discretion in the interest of justice.” United States v. Robinson, 71 F. Supp. 9, 11 (D.D.C. 1947).

To protect the defendant’s constitutional rights, courts may vacate judgments when the court’s own review of the evidence makes it clear that the defendant in fact lacked any criminal intent or the government’s witness were simply not credible and their testimony was given too much or the wrong attention. Other grounds to vacate a verdict are legal errors at trial such as prosecutorial misconduct, misleading the jury, violations of the Confrontation Clause, which gives a defendant the right to be confronted with adverse evidence to discredit and refute it, as well as the use of unqualified experts.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden



Lynette S. Byrd
Lynette S. Byrd

Former DOJ Trial Attorney


Brian J. Kuester
Brian J. Kuester

Former U.S. Attorney

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney

Local Counsel

John W. Sellers
John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara
Linda Julin McNamara

Federal Appeals Attorney

Aaron L. Wiley
Aaron L. Wiley

Former DOJ attorney

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (DOJ)

Chris Quick
Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow
Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

What Is the Test For Rule 33?

Rule 33 authorizes a judge to vacate a judgment or verdict if additional review demonstrates that the defendant was in fact not guilty or should not have been convicted. The most common applications of Rule 33 are situations in which the jury either misinterpreted or wrongly weighed available evidence. Federal Rule of Criminal Procedure 33 provides:

Rule 33. New Trial

  • Defendant’s Motion. Upon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment.
  • Time to File. (1)Newly Discovered Evidence. Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty. If an appeal is pending, the court may not grant a motion for new trial until the appellate court remands the case. (2) Other Grounds. Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.

Our Rule 33 Approach Explained

Our firm treats Rule 33 motions with the utmost dedication and diligence to present compelling reasons for the court to vacate a conviction. While we are aware that it is statistically rare for a court to overturn a jury, our firm recognizes the enormous strategic importance of filing a Rule 33 motion to set the groundwork for a successful appeal.

Our post-conviction approach is to file both Rule 29 and Rule 33 motions in preparation for an appeal. We carefully study the entire trial transcript and we challenge every element of every count for which our client was convicted. We remind the courts, the trial court with these motions and the court of appeals on review, that the government’s burden is beyond a reasonable doubt, and that substantial evidentiary presentations are required to meet this burden. While we respect and appreciate the work and effort that every juror puts in to attend trial, we do remind the court that the U.S. justice system can be imperfect at times because jurors are not trained lawyers and occasionally the complexity of a federal criminal trial takes its toll. Among many other factors we critically examine:

Was the Verdict against the Manifest Weight of the Evidence?

In instances where the jury’s verdict contradicts the manifest weight of the evidence, Rule 33 allows district courts to grant a new trial to the defendant. The Supreme Court has explained, “The ‘weight of the evidence’ refers to a determination by the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.” Tibbs v. Fla., 457 U.S. 31, 37-38 (1982).  In other words, the court need not find that there was insufficient evidence to support the jury’s verdict, just that the weight of the evidence did not support the verdict – a much lower standard. Id.; see also United States v. Turner, 490 F. Supp. 583, 593 (E.D. Mich. 1979) (“The Motion for New Trial involves a much broader standard of review than a Motion for Acquittal.”). A classic example is a conviction in cases where the prosecution failed to prove that the defendant had the required criminal intent.

Were the Government’s Witnesses Credible?

“It is a well accepted general proposition of law that a verdict cannot be based on evidence which cannot possibly be true, is inherently unbelievable, or is opposed to natural laws. Most commonly this rule is applied when a physically, verifiable fact directly contradicts crucial testimony necessary to sustain a verdict.” United States v. Narciso, 446 F. Supp. 252, 282 (E.D. Mich. 1977) (internal citations and quotations omitted).

“Where a witness’ testimony is such that reasonable men could not have believed the testimony… then exceptional circumstances are present and the district court may take the testimony away from the jury.” United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989).  In such instances, where the jury’s verdict contradicts the manifest weight of the evidence, Rule 33 allows district courts to grant a new trial to the defendant.  See e.g. United States v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010) (“The paradigmatic use of a Rule 33 motion is to seek a new trial on the ground that “the [jury’s] verdict was against the manifest weight of the evidence.”). “When considering a motion for a new trial [based on the weight of the evidence], the district court may act as a thirteenth juror, assessing the credibility of witnesses and the weight of the evidence.” United States v. Lewis, 521 Fed. App’x 530, 532 (6th Cir. 2013).

Substantial Legal Errors

“[C]ourts have interpreted [Rule 33] to require a new trial “in the interests of justice” in a variety of situations in which the substantial rights of the defendant have been jeopardized by errors or omissions during trial.” United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989).  For example, “a new trial has been granted ‘in the interests of justice’ where evidence was erroneously permitted to go to the jury, substantially affecting the rights of the accused.” United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989). Likewise, “any error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial.” United States v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010) (internal quotation omitted).

When determining whether to a grant a new trial, “[t]he district court need not view the evidence in the light most favorable to the verdict; it may weigh the evidence and in so doing evaluate for itself the credibility of the witnesses.” Tibbs v. Florida, 457 U.S. 31, 38, n.11 (1982). Thus, “a reversal based on the verdict being against the manifest weight of the evidence is proper when the Government has presented sufficient evidence to convict, but the judge disagrees with the jury’s resolution of conflicting evidence.”  United States v. Lutz, 154 F.3d 581, 589 (6th Cir. 1998).

Which Lawyer Will Handle My Case?

Most often, motions under Rule 33 are filed in tandem with motions for acquittals under Rule 29 Federal Rules of Criminal Procedure. Both motions are designed to undo the court’s or the jury’s findings of conviction, one on grounds of insufficient evidence and the other motion on grounds of injustice.  Note that if a Rule 29 motion is granted, the defendant is acquitted and the case is over; if a Rule 33 motion is granted, the conviction is vacated and the trial starts over with a new jury. Additionally, there is a strategic reason for filing both motions in the trial court even if they are unlikely to be granted:  the standard of review on appeal is much higher if perceived errors are not properly presented to the trial court in the Rule 29 and Rule 33 motions.  Thus, it is crucial that these motions are carefully prepared to include every possible argument for setting aside the verdict.

After a conviction, and with the filing of post-conviction motions, the focus shifts from arguing facts to laypeople to arguing the law to judges by demonstrating that the verdict is inconsistent with the law. The job of the lawyer is to find previously decided cases with similar facts in which courts have granted either Motion 29 or Motion 33 requests, and then to argue that the present case mandates an acquittal or new trial as well. Because most motions under Rules 29 and 33 are decided without a hearing, superior writing skills and a mastery of the law are the two main features to look for when hiring a lawyer. Among the defense attorneys that offer these skills to their clients is Dr. Nick Oberheiden.

  • Nick Oberheiden (nick@healthcare-fraud-defense.com) has successfully represented executives, business owners, public officials, physicians, and lawyers in high profile prosecutions, scores of political corruption, government investigations, and media campaigns, including 60 Minutes. He has taught U.S. criminal law and federal litigation in the United States, in Europe, in South America, and Africa. Dr. Oberheiden is trained in negotiations by Harvard Law School, and he received his Juris Doctor from UCLA School of Law. He also holds as a PhD in law and he is licensed to practice before the United States Supreme Court, the Second Circuit Court of Appeals, the Fifth Circuit Court of Appeals, the Sixth Circuit Court of Appeals, among others.

General Examples of Successful Rule 33 Motions

  • United States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001)
  • United States v. Pearson, 746 F.2d 787 (11th Cir. 1984) (based on cumulative error)
  • United States v. Munoz, 605 F.3d 359 (6th Cir. 2010) (district court granted a new trial based on ineffective assistance of counsel, but the circuit court reversed on appeal)
  • United States v. Turner, 490 F. Supp. 583 (E.D. Mich. 1979) (granting motion for new trial but denying motion for acquittal)
  • United States v. Lewis, 521 F. App’x 530 (6th Cir. 2013) (affirming district court’s granting of a new trial because the verdict was against the manifest weight of the evidence)
  • United States v. Shankman, 13 F. Supp. 2d 1358 (S.D. Ga. 1998) (granting new trial but denying motion for acquittal)
  • Judgment Reversed on Appeal
  • United States v. Martin, 375 F.2d 956 (6th Cir. 1967).
  • United States v. White, 932 F.2d 588 (6th Cir. 1991)
  • United States v. Carroll, 678 F.2d 1208 (4th Cir. 1982)
  • United States v. Schuler, 813 F.2d 978 (9th Cir. 1982) (based on prosecutor’s comments to the jury)

Free Consultation

Rule 33 motions require finical attention to detail and academic excellence. If you are going through a trial or a trial against you resulted in an unfavorable outcome, call our team for a free and confidential consultation. No case is too hopeless to find relief.

Oberheiden, P.C.

Compliance – Litigation – Defense



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