                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS                  January 4, 2008
                                                                  Elisabeth A. Shumaker
                                   TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 07-1044
 KRIS SMITH,                                       (D.C. No. 05-CR-502-F)
                                                        (D. Colorado)
          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE and LUCERO, Circuit Judges, and BRIMMER, District
Judge. **



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.

      Defendant Kris A. Smith (“Defendant”) appeals the district court’s denial


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         The Honorable Clarence A. Brimmer, United States District Judge for the
District of Wyoming, sitting by designation.
of her Motion for New Trial after she was convicted of three counts of making

false statements on a federal income tax return and one count of failing to file a

federal income tax return. The district court held that her Motion for New Trial

was untimely under Fed. R. Crim. P. 33, collateral estoppel did not bar the

prosecution of Defendant, and Defendant failed to show ineffective assistance of

counsel. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

                                          I.

      On August 4, 2006, following a five-day trial, a jury convicted Defendant

of three counts of making false statements on a federal income tax return, in

violation of 26 U.S.C. § 7206(1), and one count of failing to file a federal income

tax return, in violation of 26 U.S.C. § 7203. On December 22, 2006, Defendant

filed a Motion for New Trial, arguing that collateral estoppel and ineffective

assistance of counsel warranted a new trial. The government responded on

January 3, 2007, arguing that the motion was untimely under Fed. R. Crim. P.

33(b)(2). Defendant filed a reply on January 4, 2007, contending that, under Fed.

R. Crim. P. 45(b)(1)(B), she had “good cause” for failing to file a timely motion,

and the untimeliness was the result of “excusable neglect.”

      At the sentencing hearing on January 23, 2007, the district court heard oral

argument on Defendant’s motion. The court denied the motion, holding:

      I am going to deny the Motion for New Trial under both grounds. It
      was untimely filed and may well be premature for purposes under
      Section 2255. But under Rule 33(a) it was filed too late. And, also

                                          2
      on the merits, I do believe that the fact that she -- whether or not she
      was a victim of mail fraud, as claimed, the Government is bound to
      accept as not necessarily foreclosing her being guilty of tax fraud.

Sentencing Hearing Tr., ROA, Vol. III, at 959.

      Defendant then filed the instant appeal. On appeal, Defendant only

challenges the district court’s determinations regarding collateral estoppel and

ineffective assistance of counsel. Defendant contends that, because the

government proved in a prior prosecution that she was a victim of mail, wire, and

tax fraud, see United States v. Anderson, Case No. 02-CR-00423 (W.D. Wash.),

aff’d in part, 472 F.3d 662 (9th Cir. 2006), the government was collaterally

estopped from prosecuting her as a “willful perpetrator” in the same tax fraud

scheme. Defendant further contends that her trial counsel was ineffective by

failing to raise and present evidence to support this collateral estoppel defense,

and in failing to adduce exculpatory evidence from the prior prosecution that

would have refuted the government’s evidence of willfulness. Defendant does not

appeal the district court’s determination that her Motion for New Trial was

untimely. On September 28, 2007, this court issued an Order to Show Cause,

directing Defendant to show cause “why the court should not dismiss her appeal

for failure to challenge the district court’s determination that her Motion for New

Trial was untimely under Fed. R. Crim. P. 33.” Order to Show Cause, at 1-2.

Defendant responded by requesting “a limited remand to the district court for the

purpose of addressing the ineffective assistance of counsel claim premised on

                                          3
jurisdiction pursuant to 28 U.S.C. § 2255 . . . .” Defendant’s Response, at 2. The

government has agreed to Defendant’s request.

                                          II.

      Because the district court’s untimeliness determination was dispositive, and

Defendant fails to challenge it on appeal, we affirm the district court’s denial of

Defendant’s Motion for New Trial. Generally, “[w]e review the denial of a

motion for a new trial under the abuse of discretion standard.” United States v.

Gwathney, 465 F.3d 1133, 1144 (10th Cir. 2006). Under the Federal Rules of

Criminal Procedure, “[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 guilty.” Fed. R. Crim. P. 33(b)(2). If a party fails to move for a new

trial within this time period, “the court on its own may extend the time, or for

good cause may do so on a party’s motion made: . . . (B) after the time expires if

the party failed to act because of excusable neglect.” Fed. R. Crim. P.

45(b)(1)(B).

      By failing to challenge the district court’s untimeliness determination,

Defendant has waived the issue on appeal. See United States v. Black, 369 F.3d

1171, 1176 (10th Cir. 2004) (“Failure to raise an issue in the opening appellate

brief waives that issue.”); United States v. Abdenbi, 361 F.3d 1282, 1289 (10th

Cir. 2004) (“[E]ven an issue raised before the district court is waived if it is not

adequately developed on appeal.” (citing Dubbs v. Head Start, Inc., 336 F.3d

                                           4
1194, 1202 n.4 (10th Cir. 2003))). Moreover, the district court’s untimeliness

determination was dispositive as to Defendant’s Motion for New Trial, and the

untimeliness issue remains dispositive on appeal, so we need not address

Defendant’s collateral estoppel or ineffective assistance of counsel claims. See

United States v. Johnson, 994 F.2d 740, 742 (10th Cir. 1993) (“Because this issue

appears dispositive, we address it only.”).

      Arguably, if Defendant had contested the district court’s untimeliness

determination, an alleged ineffective assistance of counsel might have provided

Defendant with “good cause” and/or “excusable neglect” under Fed. R. Crim. P.

45(b)(1)(B). Indeed, Defendant made this exact argument in her Reply Brief to

the district court. Defendant, however, has not raised this issue on appeal, and

Defendant’s ineffective assistance of counsel claim does not automatically negate

the district court’s untimeliness determination. 1


      1
         This rule will not prejudice criminal defendants’ ability to bring
ineffective assistance of counsel claims. Even if almost all ineffective assistance
of counsel claims will be untimely under Fed. R. Crim. P. 33(b)(2), defendants
can still raise them on collateral review under 28 U.S.C. § 2255, and as we have
explained, collateral review is almost always the proper course for such claims:

      The rule in this circuit, then, is that claims of constitutionally
      ineffective counsel should be brought on collateral review, in the
      first petition filed under 28 U.S.C. § 2255. Some rare claims which
      are fully developed in the record may be brought either on direct
      appeal or in collateral proceedings. No procedural bar will apply to
      claims which could have been brought on direct appeal but were
      brought in post-conviction proceedings instead.
                                                                         (continued...)

                                           5
      Defendant requests that, rather than affirming the district court’s decision

and dismissing her appeal, we remand the case to the district court to allow her to

present her ineffective assistance of counsel claim pursuant to 28 U.S.C. § 2255.

We decline to do so. In response to a similar request, we have explained:

      Mr. Hunt urges us to remand the case to the district court for an
      evidentiary hearing so he can “present evidence of his counsel’s
      ineffectiveness.” We decline the invitation. We repeat that
      ineffective assistance of counsel claims should be “presented first to
      the district court in collateral proceedings.” We will not remand on
      the direct appeal of a case to allow for further record development or
      a district court opinion on the ineffective assistance of counsel claim.
      Consequently, we dismiss Mr. Hunt’s ineffective assistance of
      counsel claim.

United States v. Hunt, 62 F. App’x 272, 275 (10th Cir. 2003) (quoting and citing

United States v. Galloway, 56 F.3d 1239, 1240-41 (10th Cir. 1995) (en banc))

(emphasis omitted).

      AFFIRMED.


                                             Entered for the Court


                                             Mary Beck Briscoe
                                             Circuit Judge




      1
          (...continued)

United States v. Galloway, 56 F.3d 1239, 1242 (10th Cir. 1995) (en banc); see
also Massaro v. United States, 538 U.S. 500, 504-09 (2003).

                                         6
