                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-14-2009

USA v. Henry Rauser
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3281




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"USA v. Henry Rauser" (2009). 2009 Decisions. Paper 2031.
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HLD-28 (December 2008)                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-3281
                                      ___________

                           UNITED STATES OF AMERICA

                                            vs.

                                HENRY RAUSER
                      ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                            (D.C. Criminal No. 06-cr-00440-1)
                     District Judge: Honorable James Knoll Gardner
                      ____________________________________

                  Submitted for Possible Summary Action Pursuant to
                        Third Circuit LAR 27.4 and I.O.P. 10.6
                                  December 31, 2008
           Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges

                               (Opinion filed January 14, 2009)
                                       _________

                                         OPINION
                                        _________

PER CURIAM.

              In October 2007, the appellant, Henry Rauser, was tried before a jury in the

United States District Court for the Eastern District of Pennsylvania for possession with

intent to distribute five grams or more of cocaine base. See 21 U.S.C. § 841(a)(1),

                                             1
(b)(1)(B). During the trial, Rauser, who had elected to proceed pro se,1 sought to change

his plea from “not guilty” to “not guilty by reason of insanity,” but the District Court

denied his request. On November 1, 2007, at the conclusion of the 18-day trial, the jury

found Rauser guilty on the sole count of the indictment. The verdict was entered the

following day. The District Court subsequently sentenced Rauser to a term of 162

months’ imprisonment, followed by eight years of supervised release. Rauser filed a

timely notice of appeal on March 7, 2008. (C.A. No. 08-1478.)

               Several months later, on July 7, 2008, and while his appeal was pending in

this Court, Rauser filed a motion for a new trial in the District Court. This motion did not

contain any argument, but instead merely referred the District Court to an attached

newspaper article about the Supreme Court’s recent decision in Indiana v. Edwards, 128

S. Ct. 2379 (2008). In Edwards, the Court held that states were permitted to appoint

counsel to represent criminal defendants who suffer from severe mental illness even if the

defendant insists on proceeding pro se. Id. at 2388-89. Thus, it appears that Rauser was

attempting to allege that the District Court should have insisted upon appointing counsel

to assist him at trial. The District Court did not reach the merits of this argument,

however, because it determined that the motion was untimely.2 See F ED. R. C RIM. P.



   1
       It appears that Rauser had assistance from court-appointed standby counsel.
   2
     The District Court could deny Rauser’s motion under Rule 33(b) even though, at the
time of the District Court’s ruling, Rauser had already initiated his direct appeal in this
Court. See Venen v. Sweet, 758 F.2d 117, 123 n.7 (3d Cir. 1985).

                                              2
33(b)(2). This appeal followed.

              Upon review, we believe that the District Court correctly concluded that

Rauser’s motion was untimely. A motion for a new trial based upon newly discovered

evidence may be filed up to three years after the verdict. F ED. R. C RIM. P. 33(b)(2).

When, however, a motion for a new trial is based on “any other reason,” it must be filed

within seven days of the verdict. Id. Here, Rauser’s motion was based on the Supreme

Court’s decision in Edwards, not on “newly discovered evidence.” 3 F ED. R. C RIM. P.

33(b)(1). Therefore, Rauser had seven days from November 2, 2007, the date the verdict

was entered, to file his motion for a new trial. See United States v. Camacho, 370 F.3d

303, 307-08 (2nd Cir. 2004). He did not, however, file the motion until several months

later, on July 7, 2008. As a result, the motion was untimely.

              Accordingly, because this appeal does not present a substantial question, we

will summarily affirm the District Court’s order dismissing Rauser’s motion for a new

trial. See Third Cir. LAR 27.4 and I.O.P. 10.6.




   3
     To the extent that Rauser believes that the Supreme Court’s decision in Edwards
somehow affects the validity of his conviction, he may wish to raise this claim in the
direct appeal currently pending in this Court, (C.A. No. 08-1478), or on collateral review.
Similarly, insofar as Rauser intended to raise an ineffective assistance of counsel claim in
his notice of appeal, he may not do so here; such a claim may be raised in a motion
pursuant 28 U.S.C. § 2255. We make no comment, however, on the potential validity of
such claims.                               3
