                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-3842
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the Southern
                                         * District of Iowa.
James F. Boesen, Jr.,                    *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: November 20, 2009
                                 Filed: March 31, 2010 (corrected 4/01/10)
                                  ___________

Before MURPHY, SMITH and BENTON, Circuit Judges.
                           ___________

BENTON, Circuit Judge.

       A jury found James F. Boesen, Jr. guilty of a conspiracy to commit health care
fraud and 82 specific counts of health care fraud. Boesen made a Rule 29 motion for
judgment of acquittal, which the district court granted. The government appealed.
This court reversed the grant of Boesen’s Rule 29 motion. United States v. Boesen,
491 F.3d 852, 858 (8th Cir. 2007). Boesen filed a Rule 33 motion for a new trial.1
The district court ruled that Boesen’s motion for a new trial was untimely and that the


      1
     In this opinion, any reference to Rule 33 is to the version effective on
December 1, 2005.
delay in filing it was not due to excusable neglect. Boesen now appeals. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.

                                             I.

        On August 7, 2006, immediately after excusing the jury, the district court
announced that it was prepared to rule on Boesen's motion under Fed. R. Crim. P. 29
for a judgment of acquittal. The court asked if counsel wished to make any additional
record, which they declined. The court then granted the Rule 29 motion for acquittal
(as well as his co-defendant’s Rule 29 motion on the conspiracy charge, as Boesen
was the only charged co-conspirator). Boesen’s co-defendant then made an oral
motion for acquittal on all charges pursuant to Rule 29, or in the alternative, for a new
trial pursuant to Rule 33. The district court denied both of the co-defendant’s oral
motions, and recessed the trial. Boesen made no motion for a new trial within seven
days after the verdict.

       On the government’s appeal, this court reversed the district court's grant of
Boesen's motion for judgment of acquittal, remanding with instructions to reinstate
the verdict. On June 1, 2007 – three days after this court's original opinion reinstating
the jury verdict – Boesen filed, in district court, for the first time, a Rule 33 motion for
a new trial. After Boesen petitioned for rehearing en banc, this court vacated the May
29 opinion and filed a revised opinion, again remanding with instructions to reinstate
the jury verdict. On August 15, seven days after this court’s mandate, Boesen filed
a renewed motion for a new trial. On October 16, 2007, the district court denied
Boesen's motion as untimely, and declined to extend the deadline, reasoning that
Boesen's delay was due either to a mistake of law or a strategic decision, neither of
which is excusable neglect.

     Boesen appeals, arguing that (1) his motion for a new trial was timely, (2) if it
was untimely, the district court erred in finding that counsel's delay was not due to


                                            -2-
excusable neglect, and (3) if the motion was untimely and there is no excusable
neglect, then Boesen received ineffective assistance of counsel.

                                           II.

                                           A.

      Boesen contends that the district court erred in ruling that Rule 33's seven-day
deadline barred his motion for a new trial. This court normally reviews denials of
motions for a new trial under an abuse of discretion standard. United States v.
Sturdivant, 513 F.3d 795, 802 (8th Cir. 2008). However, “[i]nterpretation of the
Federal Rules of Criminal Procedure is subject to de novo review.” United States v.
Pardue, 363 F.3d 695, 697 (8th Cir. 2004). Because this case turns on interpretation
of Rule 33, this court reviews de novo. See Burrell v. United States, 467 F.3d 160,
163 (2d Cir. 2006) (holding that whether a criminal judgment is final for the purpose
of Rule 33 is a question of law reviewed de novo).

        The jury returned guilty verdicts on August 7, 2006, and Boesen did not move
for a new trial until June 1, 2007. His co-defendant moved for a new trial the same
day the verdicts were announced. Federal Rule of Criminal Procedure 33(b)(2)
provided: “Any 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 guilty.”
It is uncontested that there is no newly discovered evidence in this case. Boesen did
not file a Rule 33 motion within seven days after the verdict, and did not ask the
district court for an alternative determination about a new trial. Federal Rule of
Criminal Procedure 29(d)(1) states: “If the court enters a judgment of acquittal after
a guilty verdict, the court must also conditionally determine whether any motion for
a new trial should be granted if the judgment of acquittal is later vacated or reversed.”




                                          -3-
      Boesen argues that a judgment of acquittal terminates the proceedings, and tolls
the seven-day period in Rule 33. However, a judgment of acquittal does not
automatically result in terminating the prosecution or precluding an appeal by the
government in every case in which one is entered. Serfass v. United States, 420 U.S.
377, 392 (1975). The procedural context, not the word “acquittal,” determines
whether a final judgment terminates the proceedings in a criminal case. See id. (“[A]n
‘acquittal’ cannot be divorced from the procedural context in which the action so
characterized was taken.”).

       Boesen cites an unpublished district court case for the proposition that when a
judgment of acquittal is entered immediately after a guilty verdict, the seven-day
period of Rule 33 is tolled. United States v. Thorpe, 1998 WL 422844 at *1
(E.D.N.Y., July 22, 1998). However, Thorpe is readily distinguishable. There, the
district court entered a judgment of acquittal sua sponte, before any motions by the
defendant. Id. at *2. The court in Thorpe notes this distinction:

      The present case is unlike the case where a defendant makes a motion for
      a judgment of acquittal after a jury verdict and, in the alternative, moves
      for a new trial, see United States v. Mackey, 915 F.2d 69, 71 (2d
      Cir.1990), and the acquittal is subsequently granted by the court. See
      United States v. Dixon, 658 F.2d 181 (3d Cir.1981). In such a case,
      there is a standing verdict which the defendant protests at the time the
      motions are made. Thus, it is reasonable that the 7 day time limit begins
      to run immediately after such verdict despite the subsequent judgment
      of acquittal. Here, however, the Court entered the judgment of acquittal
      sua sponte, before defense motions were made. Such action, in effect,
      voided the verdict and prevented the time limit from running in this case.


Id. at *2 n.3. Thus the case Boesen invokes recognizes that his Rule 33 motion is
untimely.




                                         -4-
        Boesen cites three cases, asserting that this court construes the time limit of
Rule 33 liberally. United States v. Villalpando, 259 F.3d 934 (8th Cir. 2001); United
States v. Cruz-Padilla, 227 F.3d 1064 (8th Cir. 2000); United States v. Johnson, 982
F.2d 1192 (8th Cir. 1992). All three are distinguishable. In Villalpando, there was
a timely motion for a new trial; the district court requested supplemental briefing. 259
F.3d at 938. This court held that because the supplemental motion raised the same
argument as the original new trial motion, the supplemental motion was not barred by
Rule 33's time limit. Id. In Cruz-Padilla, this court held that a later written motion
for a new trial renewed the original (timely) oral motion. 227 F.3d at 1067-68. In
Johnson, this court upheld the grant of a new trial under Rule 33, despite the fact that
the motions appeared untimely, because the district court had made a statement within
the seven-day period that led all parties to believe it had granted an extension of time
to file Rule 33 motions. 982 F.2d at 1196. Thus, in these cases, there was either a
motion for a new trial, or an extension granted by the district court, within the seven-
day period.

       Boesen also cites cases from four other circuits. The Eleventh Circuit has held
that the district court, on remand, must rule on a new trial motion, but only because
it was initially made timely (when the Rule 29 motion was granted). United States
v. Ward, 274 F.3d 1320, 1321-23 (11th Cir. 2001). In all the other circuit cases cited
by Boesen, the procedural posture was the same: the defendant made a Rule 29 motion
for judgment of acquittal, and in the alternative, a (timely) Rule 33 motion for a new
trial. See United States v. Kellington, 217 F.3d 1084, 1091 (9th Cir. 2000); United
States v. Arrington, 757 F.2d 1484, 1485 (4th Cir. 1985); United States v. Dixon, 658
F.2d 181, 186 (3d Cir. 1981).

       The only circuit case where the defendant had a Rule 29 motion for acquittal
granted after a verdict, failed to make an alternative Rule 33 motion for new trial, and
then had the acquittal reversed and the jury verdict reinstated on appeal is United
States v. Renick, 273 F.3d 1009 (11th Cir. 2001). On remand, the district court in

                                          -5-
Renick initially granted the motion for a new trial, but reversed itself, ruling that the
motions were untimely per Rule 33. Id. at 1011. On appeal, the Eleventh Circuit
held:

      The appellants were not precluded from filing a motion for new trial by
      the order(s) granting judgments of acquittal. It is not unusual for there
      to be motions for judgments of acquittal and conditional motions for new
      trial. The grant of the motions for judgments of acquittal in this case did
      not change the date of the return of the guilty verdicts whether that grant
      occurred on November 18 or December 7, 1998. A motion for new trial
      could have been filed within seven days of at least one of those dates,
      conditional though it may have been. Nor did the appeal on December
      8, 1998, deprive the district court of jurisdiction to consider a motion for
      new trial filed within seven days. If such a motion had been filed, the
      district court either could have denied it or, if it was inclined to
      conditionally grant the motion, could have so certified to the appellate
      court which could have remanded the case. See United States v. Cronic,
      466 U.S. 648, 667 n.42, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). If the
      district court had granted timely motion(s), the Government could have
      appealed that order and both orders of the district court could have been
      reviewed. To allow a delay in filing a motion for new trial would raise
      the concern expressed in Smith that “such a practice would authorize the
      appellate process to be exercised in an advisory capacity while the trial
      court, regardless of the appellate opinion could set aside all that was the
      basis of appeal.” [citing United States v. Smith, 331 U.S. 469, 473
      (1947).]

Id. at 1020-1021.

       Here, Boesen could have moved for a new trial at the same time he moved for
a judgment of acquittal. In fact, his co-defendant did exactly that. The district court
asked, before it ruled on Boesen’s Rule 29 motion, whether any counsel had anything
to add, and none did. Rule 29(d)(1) anticipates this precise situation, instructing a
district court to rule on any Rule 33 motion for a new trial on a conditional basis if it


                                          -6-
grants a Rule 29 motion for acquittal. The language of Rule 33 gave Boesen seven
days to move for a new trial. The district court’s grant of his Rule 29 motion did not
toll this time period. Boesen’s motion for a new trial was untimely.

                                          B.

       Boesen contends that even if his Rule 33 motion was untimely, this was due to
excusable neglect. This court reviews a district court’s excusable-neglect
determination for abuse of discretion. United States v. Gary, 341 F.3d 829, 836 (8th
Cir. 2003). Under Fed. R. Crim. P. 45(b)(1)(B), a court may extend the deadline for
the filing of a new trial motion after the time expires if the movant failed to act
because of excusable neglect. The Advisory Committee notes to the 2005
amendments specifically state that this excusable neglect rule applies to the seven-day
time limit for motions filed under Rules 29, 33, and 34.

      In Pioneer Investment Services Co. v. Brunswick Associated Ltd. Partnership,
507 U.S. 380, 395 (1983) the Supreme Court set out the four factors to be considered
when determining whether a late filing is due to excusable neglect: “[(1)] the danger
of prejudice to the [opposing party], [(2)]the length of the delay and its potential
impact on judicial proceedings, [(3)] the reason for the delay, including whether it was
within the reasonable control of the movant, and [(4)] whether the movant acted in
good faith.” See Stutson v. United States, 516 U.S. 193, 196-98 (1996) (holding that
Pioneer applies to criminal cases).

       As to the first factor, the district court found substantial prejudice to the
government if Boesen’s new trial motion were granted. It reasoned that due to the
government’s inevitable appeal of a grant of a new trial, a new trial would not begin
for another year at the earliest, during which time witnesses could become unavailable
and memories fade. Boesen argues that any delay is not chargeable to him. However,
if he had timely made his motion for a new trial, the district court would have issued

                                          -7-
a conditional ruling that the government could have appealed along with its appeal of
the Rule 29 motion. The district court’s finding that the government would be
prejudiced by a delayed grant of a new trial is not an abuse of discretion.

       The district court held that the second factor, the length of the delay, cut against
granting a motion for a new trial. It rejected Boesen’s excuse for filing late (that he
could not have filed a motion for a new trial after the government appealed), and
Boesen does not challenge this on appeal. Boesen’s motion was almost 10 months
late. The district court's finding that this factor weighs against granting a new trial is
not an abuse of discretion.

       As to the third factor, the reason for the delay, Boesen claims that the law is
ambiguous and divided, which caused him to think that the judgment of acquittal
tolled Rule 33’s seven-day time limit. The plain language of Rules 29(d)(1) and
33(b)(2) refutes Boesen’s claim. The district court held that even if the law were
ambiguous, the prudent act would be to file a Rule 33 motion anyway. The court
characterized the failure to do so as either a strategic decision to put all the eggs in the
Rule 29 basket, in order to gain some advantage on that motion, or simply a mistake
of law. On appeal, Boesen argues that even though mistake of law is not usually
excusable neglect, excusable neglect is an elastic concept that sometimes includes
negligence. See Pioneer, 507 U.S. at 392-94. Further, Boesen argues that counsel
was not that negligent, as they spent “several hours” researching the issue, were
misled by the opinion of an Assistant United States Attorney, and found the Thorpe
case. However, footnote 3 in Thorpe, addressing this precise issue, indicates that
Boesen should have filed a Rule 33 motion when he filed his Rule 29 motion. The
district court also noted that counsel conceded at the hearing that he placed no reliance
on the AUSA's opinion. The district court did not abuse its discretion in finding that
the reason for the delay was either strategy or a mistake of law.




                                            -8-
        As to the fourth factor, the district court found that Boesen acted in good faith.
Still, the district court held that the Pioneer factors weigh against a finding of
excusable neglect. This was not an abuse of discretion.

                                           C.

       Finally, Boesen contends that if his motion for a new trial was untimely, and
the delay in filing is not due to excusable neglect, then failure to timely file is
ineffective assistance of counsel. This court ordinarily does not review ineffective
assistance of counsel claims on direct appeal, but instead resolves them in § 2255
proceedings. United States v. McAdary, 501 F.3d 868, 872-73 (8th Cir. 2007). An
exception is when the record is fully developed in the district court. See id. Here, the
district court did not develop the record with respect to counsel's effectiveness at all
(except to call him “highly capable”). Boesen’s ineffective-assistance-of-counsel
claim is rejected, without prejudice to collateral proceedings.

                                           III.

      The judgment of the district court is affirmed.
                      _____________________________




                                           -9-
