                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 21 2010

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-30358

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00052-JCC-2

  v.
                                                 MEMORANDUM*
GURMIT SINGH JASSAL,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Western District of Washington
                   John C. Coughenour, District Judge, Presiding

                        Argued and Submitted July 14, 2010
                               Seattle, Washington

Before: RYMER and N.R. SMITH, Circuit Judges, and HART, Senior District
Judge.**

       Gurmit Singh Jassal was convicted of multiple drug crimes under 21 U.S.C.

§ 841. Jassal appeals (1) the district court’s denial of his Motion for a New Trial,



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable William T. Hart, Senior United States District Judge
for the Northern District of Illinois, sitting by designation
submitted pursuant to Federal Rule of Criminal Procedure 33 (“Rule 33”), and

(2) the sufficiency of the district court’s findings at his sentencing. We affirm.



1a.   The district court did not abuse its discretion in denying Jassal’s Rule 33

motion (based upon Dr. Muscatel’s psychological report), because Jassal cannot

show (1) that the failure to discover the evidence sooner was not the result of a lack

of diligence on his part; and (2) that a new trial would result in an acquittal. See

United States v. Hinkson, 585 F.3d 1247, 1257 (9th Cir. 2009) (quoting United

States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005)). First, the record

evidences that an exercise of due diligence—either at trial or between trial and

sentencing—would have revealed the existence of the very same evidence Jassal

now uses to request a new trial. Second, the record does not show that a new trial

would result in an acquittal. Jassal does not contest that he committed the elements

of the crime, nor does he raise a mental health defense. The jury rejected Jassal’s

story and the “facts” upon which it was based. Jassal has not demonstrated how

improved comprehensibility and credibility (or an explanation to the jury that his

demeanor was the result of mental illness) would change the jury’s view as to the

plausibility of his duress explanation.




                                           2
1b.   The district court did not err in finding that Jassal’s Rule 33 motion based

upon ineffective assistance of counsel was time-barred. Jassal filed this motion

over seven months after the verdict. Therefore, Jassal must demonstrate either

(1) his claim is based upon newly discovered evidence (entitling him to three years

after the verdict to file the motion), or (2) his failure to file the motion within the

14 day limit was the result of excusable neglect. Fed. R. Crim. P. 33(b)(1) &

45(b)(1)(B). First, evidence of the ineffective assistance of counsel does not fit

within Rule 33’s exception for newly discovered evidence. United States v.

Hanoum, 33 F.3d 1128, 1130–31 (9th Cir. 1994). Second, the court properly

applied the factors found in Pioneer Investment Services Co. v. Brunswick

Associates Ltd. Partnership, 507 U.S. 380, 400 (1993), in determining that Jassal’s

failure to timely file was not the result of excusable neglect. Jassal’s argument on

appeal amounts to a disagreement with the court’s judgment, not a showing that its

judgment was an abuse of discretion.



2.    Because (a) the district court based its decision upon those facts presented in

the Presentence Report, and (b) Jassal does not challenge those facts, the court was

not required to make further findings of fact. Fed. R. Crim. P. 32(i)(3).

      AFFIRMED.


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