Transcript

IN THE SUPREME COURT OF THE UNITED STATES

CHARLES CARLISLE, Petitioner v. UNITED STATES

No. 94-9247

January 16, 1996

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:11 a.m.

APPEARANCES:

JAMES A. CHRISTOPHERSON, ESQ., Traverse City, Michigan; on behalf of the Petitioner.

PAUL A. ENGELMAYER, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Respondent.

PROCEEDINGS

11:11 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in Number 94-9247, Charles Carlisle v. The United States.

Mr. Christopherson, you may proceed.

ORAL ARGUMENT OF JAMES A. CHRISTOPHERSON ON BEHALF OF THE PETITIONER

MR. CHRISTOPHERSON: Mr. Chief Justice, may it please the Court:

This case is about the authority of a district court. The issue in this case is whether the district court, up to sentencing, has the authority to make a decision on whether or not the evidence against the detendant was sufficient to convict him.

The Government's position in this case is that the limitation on the ability of a defendant to file a motion, the 7-day limitation in Rule 29(c), also limits the court's authority.

It's our position that the rule is clear, it's concise, and that it gives the court the authority to --

QUESTION: Well, the rule is clear. It imposes the 7-day limit, and Rule 45 says that the court may not extend the time for taking any action under Rule 29, except to the extent and under the conditions stated therein, and I don't know why that isn't sufficiently clear that there's an absolute 7-day limit.

MR. CHRISTOPHERSON: It is not sufficiently clear, Your Honor, because I think the second sentence in subparagraph (a) of 29 gives the court the authority on its own motion to rule on a judgment of acquittal based upon the insufficiency of the evidence.

QUESTION: Now, you -- where do we find the second sentence set out in haec verba in your brief or somewhere else in the papers?

MR. CHRISTOPHERSON: It's actually, I think, set out on page 2 of the Government's brief.

QUESTION: Page 2 of the Government's brief?

MR. CHRISTOPHERSON: Yes.

QUESTION: It's on page 2 of yours, I think.

MR. CHRISTOPHERSON: I think I put subparagraph (c) there but not (a), if I'm -- it's in my reply brief, also, but it's in the Government's brief.

That sentence, which is in mandatory language, indicated that the court shall, gives the court the authority to order a judgment of acquittal based upon the insufficiency of the evidence after the evidence on either side is closed. That sentence --

QUESTION: Now, whereabouts on page 2 are you reading from, page 2 of the Government's brief?

MR. CHRISTOPHERSON: Subparagraph (a), the second sentence, which starts, the court on motion of a defendant.

QUESTION: Thank you.

QUESTION: In order to make that argument, you have to ignore the title of the paragraph, of the subparagraph, I take it.

MR. CHRISTOPHERSON: Well, the title to the subpara -- that's correct, Your Honor. The title to the subparagraph is not the text, and this Court should only obviously look to the title if there's some ambiguity.

QUESTION: Well, it may not be the text, but it gives you some indication of what category of cases the rule is addressed to, and that suggests that Rule (a) is addressed to motions made before submission to the jury.

MR. CHRISTOPHERSON: If you read -- I disagree for this reason. If you read the first sentence of subparagraph (a), that has nothing to do with motions before submission to a jury.

The third sentence of subparagraph (a) --

QUESTION: Well, I think -- you're saying that the statement motions for a directed verdict are abolished, and motions for a judgment of acquittal shall be used in -- have nothing to do with motions before submission to the jury?

MR. CHRISTOPHERSON: No, I'm not saying they have nothing to do, but I think that's a -- that's a general statement which is not simply limited to motions before submission to a jury.

QUESTION: Well, when do you ordinarily make a motion for a directed verdict? It's always -- at least in my experience, it was always before you had -- the case was submitted to the jury.

MR. CHRISTOPHERSON: I think that's true in 99.9 percent of the cases. I think there certainly --

QUESTION: Well, tell us about the .1 percent of the cases it's not --

MR. CHRISTOPHERSON: Well, I mean, it can be submitted to a jury and somebody can still come in and ask for a directed verdict.

QUESTION: No, you come in and ask for a judgment N.O.V.

MR. CHRISTOPHERSON: After the verdict.

QUESTION: Yes.

MR. CHRISTOPHERSON: Yes.

QUESTION: So where else do you find this .1 percent?

MR. CHRISTOPHERSON: Well, once it's -- I guess what I'm saying is, submission -- I guess you're getting into the definition of what is submission to the jury. I mean, there could be --

QUESTION: I didn't think there would be a struggle over that.

MR. CHRISTOPHERSON: Theoretically, a case could be submitted to the jury, and it could be before a verdict.

But if I may, Your Honor, I think --

QUESTION: A case could be submitted to the jury -- tell me that again.

MR. CHRISTOPHERSON: The jury could be out deliberating, I guess is what I'm saying. It depends on how you define submission to a jury.

QUESTION: And one would make a motion for a directed verdict that one had not made before submission to the jury. You would make it while the jury was out?

MR. CHRISTOPHERSON: It's certainly not a preferred practice, but all I'm saying is that's a possibility.

QUESTION: Mr. Christopherson, the origin of the motion for directed verdict, it was just that. The judge told the jury come in with a verdict, and then that was eliminated, that formality was eliminated, but the words mean what they say. It was a motion to direct the jury to come in with such-and-such a verdict, so I don't think you're going to get very far with trying to say that the first sentence is broader than what the traditional understanding of directed verdict is.

QUESTION: If we disagree with you, and if we say that section (a) applies only to motions before the jury retires, before the case is submitted to the jury, do you lose the case?

MR. CHRISTOPHERSON: No, Justice Kennedy, and my position is first of all that the second sentence of Rule (a) is clear and gives the court the authority, but if the Court does not agree with that, then my argument, as I think I indicated in my briefs, that there's a line of cases by this Court, from the unique circumstances cases which were Thompson and Harris Truck Line, the Gaca case discussing supervisory power, and Houston v. Lack, that there are exceptions that may allow this to go forward.

But if I can get back to the rule, I think I would also like to make this argument under (c). If you read the first sentence of (c), it talks about motions which are made or renewed, and I think if you look at the second sentence of (a), it talks about the court of its own motion.

I think that's a distinction. Under (c) we're talking about motions made or renewed. A court does not make or renew a motion.

Sentence two --

QUESTION: Well, then you're -- are you saying that it's just implicit in 29(c) that the judge has at any time the authority sua sponte to enter the judgment of acquittal?

MR. CHRISTOPHERSON: Up to the time of sentencing, yes. There's nothing in (c) that limits the judge. There's no specific language in (c) that says the judge does not have the power sua sponte.

Paragraph -- I mean, it's the second sentence --

QUESTION: It wouldn't make much sense to limit the motions to 7 days, so I mean, what do you -- you just come in 10 days later and say, Your Honor, I'm not making a motion, but I think it would be a good idea if you on your own accord would enter a judgment of acquittal.

MR. CHRISTOPHERSON: I think --

QUESTION: Do you really think the rule is that silly? You don't make -- you can't make a motion after 7 days, but you can ask the judge to use his inherent authority to do this thing.

MR. CHRISTOPHERSON: I think the judge in that case, if you follow my reading of the rule, could simply tell the court, don't accept that motion, it's untimely. It's the exceptional case, and remember that we're talking about situations where the judge has sat through the trial, and so the judge knows what happened. It's the exceptional case.

Judge Enslin in this case, based upon the transcript, said that what he did was initially in August, when he denied the motion, he wrote two separate opinions and two separate orders, and he said, this is the first time in my judicial career I've ever done that.

Then, when it came time in October for sentencing, he changed his mind, and it's my argument that you can enforce the rule and say the 7 days applies, the defendant has to file the motion by 7 days, but still leave that authority for the court.

QUESTION: Well, what about subsection (b) of Rule 45, which is on -- which Justice O'Connor mentioned, which is page 2a and 3a in the appendix to the Government's brief, where it says the court may not extend the time for taking any action to rules 29, et cetera, except to the extent and under the conditions stated in that.

MR. CHRISTOPHERSON: I think this Court could construe that to apply to the 7 days required when defendant files a motion, but again, I say that, under Rule (c), where it says made or renewed, that's a defendant's motion, so 45 limits -- it could limit the defendant's motion, but not the court on its own to make that decision.

QUESTION: Well then, in effect you certainly have a strong feeling here, from reading these rules, that the people who made the rules thought it was desirable to have these motions made promptly and disposed of promptly, and yet in your view, although it couldn't be done by motion, a judge could reopen the matter at any time before sentencing, even though there were weeks afterwards. Doesn't that seem rather strange in the light of these very close time limits placed on the rule?

MR. CHRISTOPHERSON: No, I don't, because I, you know, think the time limits can constrain defense counsel, and I think there's good reasons to do that, but I think the rationale is you want the court to do what Judge Enslin did in this case, and that is give considered thought to this and even rethink his position.

QUESTION: Well, what if he gave considered thought to it for about 9 months?

MR. CHRISTOPHERSON: Well, obviously, I mean, you have to go to sentencing promptly, and the court would lose jurisdiction after sentencing, so I don't think that it would be appropriate for the court to do that for that long a period.

QUESTION: But could he defer sentencing if he were still kind of turning the thing over in his mind?

MR. CHRISTOPHERSON: I think that's potentially possible.

I'm not here, I guess, arguing for a bright line saying that 6 months or 9 months, but obviously that's not the facts of this case, where it only happened over 2 months, and sentencing proceeded promptly, and I also think, if you look at the rationale in U.S. v. Smith, which is the case relied upon by the Government, that after a long passage of time, and of course in that case, that was after appeal, that the trial judge doesn't remember the case, that just doesn't apply here.

I mean, in fact, just the opposite. If you read the transcript of that October hearing, Judge Enslin is saying, I agonized over this. I wrote two separate opinions. I wrote two separate orders.

I mean, he was thinking about this very conscientiously, and so I think if you interpret the rule in that manner, I think it's appropriate to allow him to do that.

QUESTION: Mr. Christopherson, come -- walk through subsection (c) with me. It's on, what, page 2 of the Government's brief.

MR. CHRISTOPHERSON: Okay.

QUESTION: You say that it doesn't say anything about the judge entering such an order on his own without a motion, but it seems to me it does. The second sentence says, if a verdict of guilty is returned, the court may, on such motion, set aside the verdict and enter judgment of acquittal, but read the next sentence.

If no verdict is returned, the court may -- and it notably leaves out, on such motion. If no verdict is returned, the court may enter judgment of acquittal, period.

It seems to me what it's saying is, when no verdict is returned, the court may enter judgment of acquittal on motion or on its own, whereas, if a verdict of guilty is returned, it may only on such motion -- that is, a motion filed within 7 days -- enter judgment of acquittal.

What is your explanation for the -- for leaving out, on such motion, from the third sentence of (c)?

MR. CHRISTOPHERSON: Well, I think what I would argue, Your Honor, is that when you read that in the entire context of this rule, and especially the second sentence of paragraph (a), where it says shall, I think the word shall is a very strong word that gives the court --

QUESTION: (a) -- I don't think (a) relates here. You're not going to argue (a). Let's assume you have to hobble along without (a) --

MR. CHRISTOPHERSON: Okay.

QUESTION: -- for my purposes.

MR. CHRISTOPHERSON: Well, then I think that first of all we still have the first sentence, which says made or renewed, and I believe that applies to a defendant. I think the language, on such motion, perhaps at best I would argue is ambiguous, and the Court then should look at the policies under Rule 2 in trying to interpret exactly what that sentence in Rule (c) means, and the policies under Rule 2 are fairness of administration, and trying to avoid undue delay and undue cost.

QUESTION: Well, then you're saying that the judge has authority -- I won't say inherent authority -- authority to enter a judgment of acquittal, notwithstanding the provisions of Rule 29. He's not limited by Rule 29.

MR. CHRISTOPHERSON: That's correct. That's my --

QUESTION: But that again takes you away from the rule.

MR. CHRISTOPHERSON: No, I don't -- because I don't think the rule clearly states that the judge does not have that authority, and so if the rules does not state that and is ambiguous, then my argument is you have to look at Rule 2.

That's the way you interpret the rest of the rules, and I think when you do that, and you're talking about fairness in the administration of justice, and you're talking about avoiding undue cost and undue delay, that clearly those policies support our position that the court does have the authority up to the time of sentencing to determine whether the evidence --

QUESTION: Where does it say that? You say -- unless your position is that the courts have all powers that are not specifically excluded by the rules, unless that's your position, where in the rules does it say, other than subsection (a), which I don't agree with --

MR. CHRISTOPHERSON: Right.

QUESTION: Where in the rules does it say that the court has this power, without motion, to set aside a jury verdict?

MR. CHRISTOPHERSON: Well, I think the last sentence of Rule 57 gives the court, I think, fairly broad powers also.

QUESTION: Where is that?

MR. CHRISTOPHERSON: I don't know if that's cited in the briefs, Your Honor. It's -- I'm sorry, it's page 4(a), the Government has pointed out to me, in their brief.

QUESTION: Yes, but doesn't Rule 57 say in all cases not provided for by rule, the district judge may regulate their practice, and so forth, and the answer to that is that in this case it is provided for by rule?

MR. CHRISTOPHERSON: The rule does not state that the court does not have the power to look at the sufficiency of the evidence and make that decision prior to sentencing. The rule is not that specific, and so I don't believe that when you look at the last sentence of Rule 57, that my interpretation of Rule 29 is in any way inconsistent with these rules.

QUESTION: Well, so you think the Western District of Michigan in Grand Rapids could have a rule saying that the judge can do this any time up to sentencing, and the Eastern District in Detroit could have a rule saying that no, you have to comply with Rule 29?

MR. CHRISTOPHERSON: I think the local courts could adopt rules, given the fact that this rule is ambiguous. I was --

QUESTION: If we interpreted the last sentence of Rule 57 the way you want us to, namely it has to conflict with a particular disposition of the rules, you wouldn't need the first phrase, in all cases not provided for by rule. What it says is, in all cases not provided. That means when the general subject has not been provided for by rule, magistrate judges may regulate their practice in any manner not inconsistent with these rules.

The way you -- the way you're interpreting it, you do not need the preliminary phrase. You're just saying the district judges are not regulating their practice here in a manner inconsistent with these rules, and therefore it's okay.

MR. CHRISTOPHERSON: I think the issue you raise begs the question of what is not provided for by the rules.

QUESTION: Well --

MR. CHRISTOPHERSON: Your argument is that generally --

QUESTION: It gives a meaning to that phrase. How does your argument give a meaning to that phrase?

MR. CHRISTOPHERSON: Well, I'm -- I guess I'm looking at it more specifically.

In other words, in this case, the rule does not say that the court does not have jurisdiction or authority to decide whether or not the evidence was insufficient prior to sentencing.

QUESTION: You're quite right, and if it did say that, then to act otherwise would be to act in a manner inconsistent with these rules, and you would be violating the last half of their sentence.

MR. CHRISTOPHERSON: I agree.

QUESTION: But that only -- you only get to the last half of the sentence if you pass the first part, which says, in all cases not provided for by rule, and I think that refers to subjects not handled by the rules, such as the subject of when -- the subject of setting aside a jury verdict, which is handled by the rules.

MR. CHRISTOPHERSON: But again, I mean, I don't believe that specific issue we have today is handled by the rules, and you have to get back to what the standard is you're going to use to interpret the rules. Rule 29 --

QUESTION: Mr. Christopherson, as far as Rule 57 is concerned, this really isn't an area, is it, where it would be appropriate for one district judge to act one way and another district judge to act another way?

I thought the Federal Rules require certain uniformity, and where they don't require uniformity, then there's scope for local rules, and where neither requires uniformity, then there's discretion, but you can't be arguing that Judge Enslin can grant a motion to acquit in 8 days, whereas Judge X will do it only for 7. They can't both be right. Either district judges have this authority or they don't.

MR. CHRISTOPHERSON: I agree with that statement. I think the question I was arguing before was whether the judges in different districts could adopt local rules, as this rule is currently worded, that might be inconsistent. Obviously, that begs the second part of my que -- I mean, the second part of my argument here whether or not the court in any way can go outside that rule, but I think if you'd follow my first argument that what was done in this case is not inconsistent with the rule, yes, I think it should be consistent, but theoretically I think local district courts could adopt rules the way it's worded right now that might be inconsistent.

QUESTION: But absent the adoption of rules of the court that would prohibit this late consideration, I take it that it would be an abuse of discretion for the district judge not to sua sponte consider a motion for acquittal if he had doubts. He couldn't say, before sentencing, now, I have some real doubts about the sufficiency of the evidence here, but you didn't file a motion, and I'm just going to exercise my discretion not to think about that.

That's a very strange hypothetical, but I take it that in your view he is mandated to make that consideration and to enter a judgment of acquittal if he thinks the evidence, or she thinks the evidence is insufficient.

MR. CHRISTOPHERSON: Absolutely, I agree with that, and I think that's what the judge did in this case, and I think that's what we'd want judges to do if they have doubt as to the sufficiency of the evidence, and I think that's the policy this Court should try to --

QUESTION: Let me ask you a question I'm going to ask your opponent, so he can think about it in the meantime, too.

What about the power of the judge to act on his own motion within the 7-day period? What does the rule -- how does the rule speak to that question?

MR. CHRISTOPHERSON: My argument is, it doesn't matter. I mean, if --

QUESTION: Nothing in the rule authorizes the judge to grant a judgment of acquittal in the first 6 days, but supposing a judge is concerned that there really is no evidence at all here, but he has a lousy lawyer in front of him, he thinks he won't get around to filing the motion until 10 days later, could the judge take care of the situation within the 6- or 7-day period?

MR. CHRISTOPHERSON: I think if you adopt the Government's position, the argument is no, and I think that's an intolerable result, because if you look at the language --

QUESTION: And the judge might have to say, counsel, the court will entertain a motion to set aside the jury verdict. I mean, that wouldn't be the end of the world, would it?

MR. CHRISTOPHERSON: Well --

QUESTION: Well, supposing the lawyer isn't available, he's in the hospital or something.

MR. CHRISTOPHERSON: I mean --

QUESTION: Is he without power, that's the question.

MR. CHRISTOPHERSON: And I think if you look at the facts of this case where, I mean, actually what happened at the end of the proofs was the attorney made a motion saying that the defendant in this case had not been tied to the conspiracy, but just asked that the statements be dismissed and didn't ask for, you know, a Rule 29 motion, I think, you know, that there was an issue here as to how effective that counsel was. I mean, obviously --

QUESTION: Well, one could also say that the district judge had a change of heart about the new trial only when he found out what the sentence was going to be.

MR. CHRISTOPHERSON: Well, but I don't think the transcript bears that out, because I think if you look at the October transcript -- I mean, the judge said it's the first time he's done this in nearly 20 years on the bench, where he's written two separate opinions, two separate orders, it came down, and he finally decided one way.

I mean, so going back to August, he was obviously deeply split on this issue, and it wasn't simply looking at a presentence report and then changing it, because he had already -- because he had made -- he was agonizing over this long before that.

QUESTION: Mr. Christopherson, I understood that you would answer Justice Stevens' question by saying yes, he may raise this on his own motion, and in fact I understood that you would have answered Justice Ginsburg's question yes, that Judge X can decide to do it within 9 days, whereas Judge Y says no, I will only do it within 7, and that in each instance your reason would be an inherent Article III power which was independent of the rules. Do I understand you to take that position?

MR. CHRISTOPHERSON: I'm arguing, I think, along those lines in the alternative. My first argument is that --

QUESTION: Right.

MR. CHRISTOPHERSON: -- Rule 29 allows this.

QUESTION: Yes.

MR. CHRISTOPHERSON: But there are a long line of cases from this Court, the last one being Houston v. Lack, where this Court has found a basis where there are circumstances such as exist in this case to grant relief.

QUESTION: Well, what do we do in the case in which there is a rule which specifically addresses it, and let's assume for the sake of argument that you lose on the first point and we say 7 days means 7 days, and that's it, and whatever the judge can do, he can't do anything outside of 7 days, and so we're in the situation that we are in this case.

Do you take the position that the -- that when there is a direct conflict between the purported act based on inherent authority, and the rule which would limit the judge and preclude the judge from taking that conduct, that the inherent authority always wins, and that the rule is defeasible, given an exercise of that inherent authority?

MR. CHRISTOPHERSON: I take the position that the inherent authority exists, and I think it's similar to --

QUESTION: Does it always trump the rule if there's a conflict between what the judge wishes to do with that authority and the content or the provision of the rule?

MR. CHRISTOPHERSON: No. It has to be --

QUESTION: When do we know which is which?

MR. CHRISTOPHERSON: Well, there's two lines of cases from this Court, I think. The first cases are the unique circumstances cases, and the second line of cases are the cases which have dealt with issues where, for example, prisoners in the Houston v. Lack case were unable to timely file their notices.

QUESTION: But interesting, in that case the court came up with a rule when you deposit the paper with the jailer, so it wasn't something that for one judge it's 9 days, for another judge -- there was -- the court came up with a rule. It may have been different from the rule that was written into the Federal Rules.

MR. CHRISTOPHERSON: It was different than what was written in the Federal Rule, and of course then the Federal Rule was changed to conform with that decision.

QUESTION: Yes, but in Houston v. Lack, the Court did not rely on some inherent power of the judge to ignore the rule. It redefined what filing meant, and that was how it reached the result it did in Houston v. Lack, so I don't think you have a lot of support in our cases, at least in the recent cases, for just saying there's some inherent power of the judge, no matter what the rule says.

MR. CHRISTOPHERSON: If that's the ruling of Houston v. Lack, then I would suggest that same rationale applies to this case, in that the Court could do the same to Rule 29 that it did to Rule 4.

QUESTION: What word do we turn into rubber here? I mean, what's your candidate?

(Laughter.)

QUESTION: It's one thing for us to take liberties with the text here, it's another thing to let the district judge take liberties with it.

(Laughter.)

MR. CHRISTOPHERSON: I don't think you should take liberties with the text. I think -- again, the way I read the sentence two of subparagraph (a), and I know some of you may disagree with me, but that's clear, and I don't see how you --

QUESTION: Okay, but if subparagraph (a) is out, are you out on this second argument?

MR. CHRISTOPHERSON: No. No, I --

QUESTION: All right, then what is the malleable language in (c) which supposedly is going to be flexible enough to give way to this inherent power?

MR. CHRISTOPHERSON: Well, again, (c) is ambiguous. It does not prohibit what the judge did in this case, and so I think if we were to redraft (c) similar to the way 4 was redrafted in Houston v. Lack, that there should be a specific statement in (c) which would allow the court --

QUESTION: So the rule is, whenever the rule does not specifically prohibit the court from doing something, it may do it?

MR. CHRISTOPHERSON: I wouldn't -- I don't know if I'd draw that broad a rule, but I guess in this case where it doesn't prohibit it, and when -- again, I think (a) does talk about shall, (c) --

QUESTION: Forget (a).

MR. CHRISTOPHERSON: Okay.

QUESTION: I'm not an (a) man here.

MR. CHRISTOPHERSON: Okay.

QUESTION: So assume I've got to decide this without (a).

MR. CHRISTOPHERSON: You still have (c), which talks about made or renewed, which obviously in my opinion is a defendant's made or renewed motion, so now you have a rule which is silent.

I think when the rule is silent -- I mean, you can make the argument either way, and so if you look to -- I think you have to look to Rule 2, which talks about interpreting the rule in fairness to the administration of justice and to avoid undue delay and undue cost and, obviously, in our opinion it doesn't make sense to have to go through appeal or collateral proceedings in that it's not deficient.

If it please the Court, I'd like to reserve some time for rebuttal.

QUESTION: Very well, Mr. Christopherson.

Mr. Engelmayer, we'll hear from you.

ORAL ARGUMENT OF PAUL A. ENGELMAYER ON BEHALF OF THE RESPONDENT

MR. ENGELMAYER: Mr. Chief Justice, and may it please the Court:

Federal Rule of Criminal Procedure 29(c) provides that a motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or within such further time as the Court may fix during the 7-day period.

Our position is that when a defendant makes a judgment, motion for judgment of acquittal outside that time limit, as occurred in this case, the district court lacks authority to grant that motion.

We also take the position that the district court's authority to enter a judgment of acquittal on its own motion is constrained by that same time limit.

To begin with, the mandatory nature of the Rule 29(c) time limit is dictated, in our view, by the plain language of Rule 45(b), which this Court took up in United States v. Robinson.

Rule 45(b) allows district courts to enlarge most time limits under the Federal Rules either upon a showing of cause or after the time limit has lapsed upon a showing of excusable neglect, but it carves out a specific exempt -- exception for Rule 29.

It provides that the Court may not take any time for taking -- extended time for taking any action under Rules 29, 33, 34, and 35, except to the extent and under the circumstances stated in those rules, and in Robinson this Court stated and held that that language was, in the Court's terms, quite plain and clear.

QUESTION: But it hasn't extended the time for a motion here. It hasn't extended any time limit that's set forth.

MR. ENGELMAYER: That's absolutely right. The motion was at all times untimely. Had the district court within the 7 days said to the defendant, you may make a motion on the eighth day, he would have complied with the rule. That didn't happen here, and in Robinson this Court held that, except where the specific circumstances set forth in the governing rule, in this case 29, have been complied with, there's otherwise no basis for extending time limits under the rules.

QUESTION: What happens if the attorney is on his way to the court and is abducted, or has a heart attack, and misses the filing deadline by a few hours? What can the judge do?

MR. ENGELMAYER: Well, Justice Kennedy, the district court, of course, itself has the power --

QUESTION: No, no, I'm assuming that the 7 days expires.

MR. ENGELMAYER: I think the text of the rule admits of no excusable neglect exception, and whether or not that is wise as a matter of policy, the rule says no -- that it is not subject to an excusable neglect exception, even though that's -- your hypothetical surely would be excusable neglect.

QUESTION: Surely an appeal would still lie.

MR. ENGELMAYER: Absolutely.

QUESTION: That there wasn't sufficient evidence to sustain the jury verdict, right?

QUESTION: You get exactly the same inquiry on appeal as you do from the district judge on a motion for judgment of acquittal.

MR. ENGELMAYER: That's absolutely right, Mr. Chief Justice, on appeal, whether or not the motion was timely made in the district court, the court of appeals will be reviewing de novo the question of whether the Jackson v. Virginia standards --

QUESTION: My goodness, Jackson v. Virginia is not the same, is it, as whether you're deciding a sufficiency of the evidence 100 percent, it's just that?

In other words, in the habeas cases, every habeas judge is supposed to go and look at all of the State determinations of guilt and see if they're -- would survive a motion of directed verdict for acquittal?

MR. ENGELMAYER: I guess all I'm saying, Justice Breyer, is that there's an adequate recourse on it.

QUESTION: Is that adequate if, in fact, then the court of appeals doesn't go and, looking for plain error, apply the same standard to the evidence as otherwise?

MR. ENGELMAYER: Our position, Justice Breyer, and I think this is consistent with the way the courts of appeals have addressed the issue of sufficiency where no timely -- where the issue is not --

QUESTION: I don't remember ever going back looking, combing through records where, you know, there are close questions and so forth, in the absence of a motion, where they say you have to find plain error. I thought plain error is pretty narrow. Maybe we weren't doing it right, but nobody ever complained too bitterly about it.

MR. ENGELMAYER: I think the court on appeal obviously is going to have to be guided in large part by the submissions of the parties as to what the evidence at trial showed. Our view, though, is that on a plain error review from the court of appeals, if the evidence in the court of appeals' mind clearly showed -- clearly was insufficient to prove all the elements of the offense beyond a reasonable doubt, that would be -- fall within the plain error standard. In other words, it would have been plain error.

QUESTION: But that's certainly not the same as the trial judge -- you made a distinction in the brief yourself. Here, a trial judge said, I would give -- grant the motion to acquit, and yet the Sixth Circuit didn't, apparently must have found the evidence sufficient --

MR. ENGELMAYER: Justice Ginsburg, the Sixth Circuit did not reach the issue of sufficiency. Rather, it remanded for sentencing, understanding that that issue --

QUESTION: Well, what was it -- remanded for sentencing, not for doing anything with the verdict any more.

MR. ENGELMAYER: That's right, but the -- under the Sixth Circuit's remand, following sentencing in the case, the defendant would have been free to raise the substance of a sufficiency claim in the court of appeals under a plain error standard as well as any other trial errors, as well as any objections to sentencing.

QUESTION: Well, and a sufficiency claim is very difficult to make out as a practical matter, isn't it? To say that the evidence was in -- all inferences have to be resolved in favor of the Government, all questions of credibility have to be resolved in favor of the Government. It's not like a motion for new trial at all.

MR. ENGELMAYER: That's right.

QUESTION: Well, that's sort of interesting, because the -- to me, is that we used to get hundreds -- I mean, that was the most common thing. The evidence doesn't support the verdict.

I've never seen so many claims come up that make that, all the time, and often the trials are very complicated, and often they involve unbelievable numbers of witnesses on conspiracy, and this person says this, the other one says that, and is what the Government's position now is that in the courts of appeals, and indeed, in district courts on habeas, that it -- the fact that the person didn't make the motion in the trial court for a directed verdict for acquittal is irrelevant.

Basically, the courts of appeals and the district courts are supposed to go through all those records and review the same way they would do it if, in fact, at the trial court level somebody had made a motion for a directed verdict and the district judge had had a chance to pass on it.

MR. ENGELMAYER: Justice Breyer, let me address that first with regard to direct appeal plain error and then with regard to sufficiency, if I might.

On direct appeal, it is our view that the court of appeals, if the evidence is marshalled properly by the defendant and indicates that the evidence is insufficient to prove one of the elements of the offense, it would -- it is appropriate to reverse because it was plain error for the district court, within the proper time limits, not to sua sponte dismiss the -- overturn the conviction for insufficient evidence.

QUESTION: Not appropriate, mandatory. I --

MR. ENGELMAYER: Mandatory.

QUESTION: -- agree, right.

MR. ENGELMAYER: Absolutely.

QUESTION: But wait a minute, may I just -- may I just -- I hate to interrupt, but I want to be sure you're -- what if he didn't do it sua sponte within the 7 days? Could he do it so -- you didn't really address my hypothetical.

MR. ENGELMAYER: And I was going to get to that, and I'd like to turn in a moment, if I may, just to the text of the rule, because I -- the answer to your hypothetical would be yes, the district court does have the power under Rule 29(c), in our view, to act within the 7 days after the verdict to grant the judgment of acquittal, but --

QUESTION: Without a motion.

MR. ENGELMAYER: On its own motion, absolutely, and I'd like, if I may in just --

QUESTION: Well, you've --

MR. ENGELMAYER: -- a moment to turn to the text of that.

QUESTION: Is it also obligated to?

MR. ENGELMAYER: Yes, it would be. That was what the plain error standard means, that it would have been plain error for the district court not to have entered a judgment of acquittal.

QUESTION: Yes, but what's the source of the obligation, is what I want to know? It's not the rule.

QUESTION: And what's the source of the authority?

MR. ENGELMAYER: I think the source of the authority is that the lack of sufficient evidence is a due process violation.

QUESTION: The obligation was not to allow the case to go to the jury in the first place. I mean --

MR. ENGELMAYER: That's right, and it's plain error if the district court --

QUESTION: -- go to the jury.

MR. ENGELMAYER: -- allows on its watch an insufficient case to result in a verdict and does not overturn --

QUESTION: But that does not depend on the rule. That is an obligation inherent in the exercise of the judicial power.

MR. ENGELMAYER: Much as it would be for other abuses that could occur at trial, such as prosecutorial misconduct, for example.

QUESTION: But these things are never plain. They're never plain. I mean, in case after case this person says, a little shaded this, this person says, a little shaded that. The person who knows about it is the trial judge who's been sitting there. A court of appeals, at least in my experience, can't really know what's going on at the trial and who's believable, or what the situation --

MR. ENGELMAYER: Justice Breyer --

QUESTION: -- it's too complicated.

MR. ENGELMAYER: -- the defendant pays a price there for not having properly raised this below and perhaps obtained a more careful, thoughtful discussion from the district court.

QUESTION: Suppose on the eighth day, as was alleged to have happened in this case, there's a new opinion from the court of appeals indicating that it was clear error to introduce certain testimony, and without that testimony the verdict simply can't stand?

MR. ENGELMAYER: Let me address that in two steps. First of all, the claim in this case is wrong.

The citation that petitioner has referred to in his claim that is new law is a Sentencing Guidelines case called Jenkins. It simply addresses the issue of how one goes about determining what quantity of drugs are attributable to a defendant for calculating mandatory minimums.

It has nothing to do with sufficiency, and I think that's clear from the oral discussion, which is reprinted in the joint appendix, that the district court goes through.

But more generally, even if there is a change of law outside the time limit set by Rule 29(c), the rule simply does not authorize a district court to revisit the issue, to open up the issue on sufficiency outside that time limit.

Now, there is a different recourse in the rules. Under Rule 48(a), the Government is authorized to move to dismiss an indictment, and after trial has commenced that must be with the consent of the defendant.

If, let us say, a intervening Supreme Court decision came down that made clear that under new standards the evidence at trial was clearly insufficient, a decision like McNalley or Ratzlaf, or something like that, the Government would be perfectly free, and a responsible Government hopefully would take action --

QUESTION: Well, and even if it didn't, the new law would certainly have to be applied by the court of appeals on appeal, wouldn't it, in deciding whether the case should have ever gone to the jury?

MR. ENGELMAYER: There actually is a circuit split, Justice Scalia, where the issue is not raised below as to which law to apply under a plain error standard, but where it was preserved, there's no question that you would be applying the new law.

QUESTION: Mr. Engelmayer, I think Justice Breyer and I may disagree, and I'd be interested to know the Government's position as to whether the district judge, in passing on a motion for a new trial, applies the same standard as the court of -- or, not a motion for a new trial, a motion for judgment of acquittal.

It's my opinion that a district judge passing on a motion for judgment of acquittal applies exactly the same standard as the court of appeals. You know, insufficiency of the evidence to support the verdict. The district judge doesn't make any credibility determinations any more than the credib -- any more than the court of appeals would.

Now, is that the Government's position, or do you agree that the district court somehow makes credibility determinations in passing on a motion for judgment of acquittal?

MR. ENGELMAYER: What you stated is our position. The only deference that is due is to the jury's verdict, and that is under the Jackson v. Virginia standard that all credibility findings must be construed in the light most favorable to the verdict.

I think as a practical matter a defendant obviously gets a real advantage if his counsel is savvy enough to make an intelligent motion in the district court.

QUESTION: I guess my question does not turn on credibility or not credibility. I just notice these things are incredibly complicated, very often, and the trial judge as a practical matter is in a far better position, often, to decide what's going on than a court of appeals.

Now, maybe the legal standard written down in terms of credibility would sound the same, but it doesn't seem to me in practice that it's the same, in that judges normally at an appeals court level know they haven't heard all the evidence.

Now that seems to me to make a difference. Now, maybe you're saying it doesn't make a difference.

MR. ENGELMAYER: Well, I think what I'm saying in the same practical spirit in which your question was phrased is that it does, as a practical matter, make it a -- put the defendant on much more of an uphill road in order to establish insufficiency in the court of appeals than in the district court, and that is the price the defendant pays for not having made the motion.

If the district court, however, out of time suddenly has the revelation that maybe there was something insufficient about the evidence, I suppose there's nothing that would prevent the district court from making those views known, perhaps in the context of granting bail pending appeal, or something like that.

QUESTION: Mr. Engelmayer, may I ask you about the possibility of a theoretical difference, and I mean, I understand your answer to say that there isn't this difference, but wouldn't it be possible for the district judge, ruling on a motion made within the time, to say, no -- the conviction depends upon acceptance of the testimony of X.

No reasonable jury could find X credible on the crucial evidence, and therefore I will enter a judgment of acquittal, or -- yes -- whereas a court of appeals could not make that credibility determination, as I understand it.

Isn't that theoretical difference possible?

MR. ENGELMAYER: I don't think so. I think it is conceivable that in a sufficiency analysis one might, in a very odd case, turn to the credibility of a witness, but only based on objective facts at trial.

For example, if a witness is contradicted by a videotape, let us say, that is something that the court of appeals perhaps would be able to review, and a district court would be in the same position, but in the more impressionistic sense that we think of credibility, I don't think the district court has any more discretion than the court of appeals to turn to that issue.

QUESTION: Yes.

QUESTION: May I ask you to return before the time expires to my hypothetical? I still don't understand where it is that you find authority in the rule for the judge to do what you say he obviously has the power to do.

MR. ENGELMAYER: Right. Rule 29(c) attaches a time limit, Justice Stevens, to what it terms a motion for judgment of acquittal.

QUESTION: Right.

MR. ENGELMAYER: Our position --

QUESTION: It does not speak to the judge's action.

MR. ENGELMAYER: Well, I think it's a general term, unlike Rule 29(a), which specifically identifies the two movants. In other words it says, the defendant's motion, and then it also says, the court on its own motion.

QUESTION: Right.

MR. ENGELMAYER: So our view is that the general term, motion for judgment of acquittal in 29(c) properly encompasses both of the previous types of motion, defendant's and the court's, that are listed in 29(a), and as a result the court is bound by the same 7-day deadline.

I'd make -- I --

QUESTION: But what is -- but you would agree, [ILLEGIBLE WORDS] to look at paragraph (a) to find the authority in [ILLEGIBLE WORDS] is that right, then?

MR. ENGELMAYER: I think -- I think --

QUESTION: You see, some of us were inclined to say well, let's not even look at (a), and you kind of agree with your opponent that we should look at (a).

MR. ENGELMAYER: Well, I think my opponent suggests that there is no temporal aspect, temporal limitation to (a) in that the text of the -- the clear text, the clear headline of (a) which says, before verdict, is irrelevant.

That, by the way, is inconsistent with authority from this Court, including most recently INS v. National Center for Immigrants' Rights, to the effect that the court does and can look to the title of an enactment in determining its meaning.

But more generally, we would find (a) relevant in the sense that (a) identifies two specific types of motion --

QUESTION: For acting on its own motion.

MR. ENGELMAYER: -- and (c) is a general term, and if --

QUESTION: Well, but Mr. --

QUESTION: But you know, there's no -- could I just finish this one thought? There's no prohibitory language in (c), and there's no authorization to the judge to act on its own motion in (c) itself.

MR. ENGELMAYER: Right, but it's a general term. We think it's best read that way.

The alternative is --

QUESTION: So you would find the -- I want to be sure, you would find the authority for the judge to act on his own arising from (a) rather than from any inherent power in the judge.

MR. ENGELMAYER: We would find the authority for the judge to act on his own to arise in (c) under the term, motion for judgment of acquittal, and we would find -- we would help give meaning to the (c) term, motion for judgment of acquittal, from the language in (a) where two types of motions is listed, and one of those is, and I quote, on its own motion, referring to the court.

QUESTION: I understand, yes.

MR. ENGELMAYER: And I would point out that that is a more favorable reading to the district court than the alternative, where there is a strong negative implication that the court has no authority after the verdict at all because (a) affirmatively sets out the authority in the preverdict phase.

QUESTION: Mr. Engelmayer, two questions. First of all, this case, I take it, does not require us to decide this matter of what a judge can do, sua sponte.

MR. ENGELMAYER: Strictly speaking, that is correct, Justice O'Connor.

QUESTION: This was a motion made by the defendant that was late.

MR. ENGELMAYER: That is right.

QUESTION: Okay. Second question. Subsection (c) possibly does distinguish between motions by defendants and the court's own motion, where it says, if a verdict of guilty is returned, the court may on such motion, referring back to the motion for a judgment of acquittal in the first sentence, and then the next sentence, if no verdict is returned, the court may enter judgment of acquittal, not referring to motion.

Now, conceivably those two phrases indicate some different role for the defendant and the court, sua sponte.

MR. ENGELMAYER: Our reading would be, rather, that the term motion, not being subject in either of those sentences to any limiting language, applies to both types of motion set forth in (a), and I think there's actually an interesting analogue under the Federal Rules, and --

QUESTION: Before we get to analogues, just tell me why it says, may on such motion in one sentence, and conspicuously does not say on such motion in the next sentence. Do you have any explanation for that?

MR. ENGELMAYER: I don't, but I think it may just be that --

QUESTION: I thought not.

MR. ENGELMAYER: It may be that it is -- but I don't think it may be -- it may not be a --

QUESTION: It's quite obvious and conspicuous. If a verdict of guilty is returned, the court may on such motion set aside the verdict --

QUESTION: Where are you reading from?

QUESTION: (c), the second and third sentences of (c). If a verdict of guilty -- the court may on such motion set aside the verdict and enter judgment of acquittal. If no verdict is returned, the court may enter judgment of acquittal.

MR. ENGELMAYER: Right.

QUESTION: It just sticks out like that, and you say there's no explanation for it.

MR. ENGELMAYER: Let me try -- let me give you the analogue, because I think it actually may help to answer this question. In Rules -- and I apologize in advance that this was not in the brief. It's something that came up in the course of preparing for this argument.

In Rules 33 and 34, those rules were initially read simply, the court may grant either a motion for a new trial or a motion for arrest of judgment. There was no limiting language attached.

After this Court's decision in Smith, where it was pointed out -- where the Court pointed out you could have a double jeopardy problem if the court were authorizing a new trial without the defendant having sought or consented to that relief, the framers of the rule in 1966 added the limiting language, on motion of the defendant, and that would seem to us to be the terms that the rules use, as they do in 29(a), when they want to denote specifically that a motion must be made by the defendant as opposed to sua sponte.

When there is a more general term, such as motion, that is used, it seems to us that, particularly in light of the antecedent reference in (a) to both types of motion, it's an umbrella word. I think that's also confirmed by 29(d).

29(d) says, if a motion for judgment of acquittal after verdict of guilty under this rule is granted, the court may order a -- may make a conditional finding as to the propriety of a new trial depending on what happens on appeal. There's no reason --

QUESTION: Mr. Engelmayer, there's one concern that I had about an earlier answer you gave. You said the judge can act on his own motion within the 7 days because he may have made a mistake, he may have realized he made a mistake in submitting the case to the jury.

MR. ENGELMAYER: Or for another reason, if I may, Justice Ginsburg, which is that the court may have wished to preserve the Government's right to appeal under the Double Jeopardy Clause a conviction whereas had --

QUESTION: Yes. As a typical thing they do let it go to the jury so that all possibilities are preserved.

MR. ENGELMAYER: Right.

QUESTION: Right, but you were -- you recognized the possibility of a judge's own -- in the judge's mind, she has missed something. Isn't it common when you deal with appointed counsel to do just what was suggested before, if someone doesn't make a motion to suggest that the district judge will suggest, counsel, don't you want to make a motion?

Do we make no distinction? It was court-appointed counsel in this case, was there not?

MR. ENGELMAYER: Yes, it was.

QUESTION: Do we make no distinction between the slips made by a representative that the State has provided to the defendant?

MR. ENGELMAYER: This rule makes no distinction, and the text of the rule, I think, governs, but your point that a court can informally prod a defendant's counsel as the time is running to make such a motion is certainly a correct one. I'm sure it accords with practice in many courts.

The alternative situation, which is the one the Court addressed in Smith, though, would be created by the other way of looking at the problem, which is, if the court was to have inherent sua sponte authority that lasted after the defendant's right to move had expired, you would have this undesirable consequence of a defendant through proxies, making informal entreaties to the court through friends or counsel asking it to enter relief that the defendant could not formally ask for, otherwise that motion would be time-barred.

QUESTION: I wasn't clear where you went with your explanation to us about Rules 33 and 34. The double jeopardy problem is not present with a motion of --

MR. ENGELMAYER: Oh, I --

QUESTION: -- with a judgment of acquittal.

MR. ENGELMAYER: I certainly agree with that. My point was more that the way that the Federal Rules, and 29, 33, and 34 and 35 are something of a package under 45(b), the way they choose to limit who may make a motion is, to the defendant is to add after the expression, on motion of a defendant -- that was what was added in 1966.

QUESTION: Yes, but I -- that's a very interesting argument, but I don't see how it doesn't work against you, because in this case there is no double jeopardy problem, and so the court's power to enter the acquittal should be greater, and the rules may recognize that, arguably, by this silence.

MR. ENGELMAYER: And the court's powers are greater, Justice Kennedy, in that, unlike in the new trial context the court does, in our view, under 29(c) have the power to order a judgment of acquittal following the verdict, even if the defendant has not asked for that relief.

QUESTION: Yes.

MR. ENGELMAYER: It just so happens, though that that, the time limit that the court is constrained by is the same 7-day, unless timely extended, time limit that the defendant is constrained by in Rule 29(c).

If I may just turn to the policies that are served by the rule --

QUESTION: Before you do that, why is it constrained by the same -- I mean, it's not -- it isn't granted by (c), and why is it constrained by (c), the time in which the judge can act on his own?

MR. ENGELMAYER: If one construes in (c) the expression, a motion for judgment of acquittal, to include a motion for judgment of acquittal on the court's own -- on the court's initiative, which is a type of motion that is adverted to in (a), then such a motion on the court's own initiative must be made with 7 days after the jury is discharged, or within time extended afterwards.

So, for example, the court might say several days after a verdict, I'm troubled, I don't -- I'm not sure whether the evidence --

QUESTION: What if he says, I forgot to ask the clerk to make the entry but I told myself I was going to extend the time a few days?

MR. ENGELMAYER: That would -- I think would really get more towards the formality of what constitutes a motion, I would think.

QUESTION: But how do you rule in that case?

MR. ENGELMAYER: I think the judge would have to put something on the record in a timely fashion --

QUESTION: Within the 7 days.

MR. ENGELMAYER: -- because otherwise --

QUESTION: Well, doesn't that suggest that there's some flaws in your argument that a judge can do -- act on his own within 7 days? You're just opening up things like that, whereas if you require it to be done by a -- on a motion of counsel or not at all, you have formal records.

MR. ENGELMAYER: Mr. Chief Justice, I think we might well require that the judge put on the record, say, after a verdict that I'm troubled by the close nature of the sufficiency here, and I'm going to reserve to myself the right to enter judgement of acquittal up through sentencing, or whatnot, and I don't think that would be any problem. All the court would need to do would be to note that in the transcript for the parties or in some formal correspondence or some such.

I think there's little focus --

QUESTION: But you are bending the rules to a certain extent. You're asking us to draft a -- the rules don't say anything like that.

MR. ENGELMAYER: Well, it says on a -- if the court may enter a judgment of acquittal on --

QUESTION: Once you say that motion means on the court's own motion, I mean, you can make up all sorts of things.

(Laughter.)

QUESTION: Whatever the court, you know, speculates in oral conversation with counsel can be deemed to be an expression of the court's own motion. I mean, I guess you -- you know, you could write something that way. I certainly wouldn't.

MR. ENGELMAYER: If the court can make its own motion before the verdict, I don't see why it couldn't make it afterwards. Of course, as --

QUESTION: Why does the Government take a position like this? I can see the Government figuring maybe a court is going to come down with something like this, because they're going to feel sorry for a defendant whose counsel doesn't make the motion, but it doesn't seem to me it's in the Government's interest.

MR. ENGELMAYER: I think it's the correct reading of the rule, Mr. Chief Justice, and the alternative, of course, would simply be for the court, if it was stripped of power after the verdict, to call up defense counsel and say, you might think of coming down to my courtroom within the next 7 days and making -- making such a motion yourself, with the same effect.

QUESTION: But don't many judges ask, just as a matter of course at the end of the trial, is there a motion going to be filed under rule 29?

MR. ENGELMAYER: Yes, and --

QUESTION: I mean, they do.

MR. ENGELMAYER: And in the typical case --

QUESTION: I think this is an aberration, this thing.

MR. ENGELMAYER: I think the whole case is an aberration in the sense that the overwhelming -- in the overwhelming majority of cases these motions are made --

QUESTION: It's an aberration, but it is rather unusual to have a fellow who everybody thinks is innocent sitting in jail.

MR. ENGELMAYER: Well, it's not everybody who thinks he's innocent.

QUESTION: Well, I mean, at least if you take the judge's analysis of the record, which we're doing for purposes of this appeal.

MR. ENGELMAYER: We the Government believe the evidence was sufficient. If we felt the evidence was insufficient, we certainly would be empowered, under Rule 48(a), to trigger the process of getting the indictment dismissed, but that's not the case, and as a result, this is something that is going to have to be taken up either, depending on who prevails below in the court of appeals, with the Government or the defendant appealing.

QUESTION: What is the scope of the district judge's authority on a postverdict motion? Say a -- say there's a 2255 application made to this same district judge.

MR. ENGELMAYER: The district judge realistically, because of the theory of plain error which I've set out earlier, and we're not aware, by the way, of any court of appeals that has ever held that the plain error standard was decisive on a sufficiency claim that the nature of the standard mattered, realistically a district court will almost never have to get to a 2255 motion, because one way or the other, plain error analysis on the sufficiency question on direct appeal should dispose of it. In theory --

QUESTION: If I'm right, though, that that failed here, that the Sixth Circuit considered -- there wasn't only one question raised on the appeal from the judgment, was there? Isn't it implicit in the Sixth Circuit instruction to sentence, that they had considered all questions relating to the trial?

MR. ENGELMAYER: Not in this case. Remember that the defendant in this case had not yet been sentenced and as a result, after the defendant would be sentenced after the remand, the defendant would have the right to file time --

QUESTION: But let's assume the Sixth Circuit affirmed, didn't find any plain error, so there s another appeal after the sentence --

MR. ENGELMAYER: Right.

QUESTION: -- and then we're left with what, 2255?

MR. ENGELMAYER: And the 2255 would fail under any theory, because sufficiency will have been raised and lost in the court of appeals, and ineffective assistance of counsel would fail to show prejudice because there would be a legal sufficiency, and therefore any timing mess-up by the lawyer would have been, in effect, harmless error, so --

QUESTION: I thought you had raised those two possibilities as discrete, but now you're saying if you lose one, if you lose the plain error review on the circuit, you can forget the 2255.

MR. ENGELMAYER: Except in the highly exceptional case, Justice Ginsburg, where the existence of reasonable doubt was so much in equipoise that maybe the plain error standard was dispositive, and therefore, except in that situation there would be -- it would be duplicative to raise an ineffective assistance claim.

In that rare situation, I suppose, a defendant could come back and say, but for the plain error standard, I would have prevailed on appeal, and it was only because of my counsel's lapse that the plain [ILLEGIBLE WORD] standard vound up being used on appeal, ergo I should have a good ineffective-assistance-of-counsel claim. I really don't think that that -- we're ever going to get to that stage in this case or others like it.

Finally, it's just important just to point out the purposes of this rule, that they're to expedite the termination of district court review to make sure that, for example, the -- that there aren't eleventh hour motions made raising sufficiency just before sentencing that puts off sentencing.

It helps to ensure that, if the district court is going to be tossing out a conviction based on insufficiency, that that be done sufficiently in advance of sentencing that the court, the probation office, the defendant, and the prosecutor don't waste time going through the needless exercise of preparing for sentencing.

Those interests are very much furthered by the barrier, the 7-day barrier applying to the district court as well as to the defendant.

Now, it's true that the rule obviously doesn't impose any time limit on whether the motion has to be resolved. That's because -- thank you.

QUESTION: Thank you, Mr. Engelmayer.

Mr. Christopherson, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF JAMES A. CHRISTOPHERSON ON BEHALF OF THE PETITIONER

MR. CHRISTOPHERSON: Mr. Chief Justice, if it please the Court:

There are a couple of points I'd like to make Justice O'Connor asked the question, well, this really wasn't sua sponte by the court. In fact, this was by a motion, but I think procedurally if you look at what happened in this case the motion was filed, the motion was denied. There was no motion pending in front of the court when the judge made his decision in October.

Now, it's true that Judge Enslin back in August had written two separate opinions and two separate orders, and then just changed them and then did -- on the order does say it's based on a motion by the defendant, but I think it's clear in this case there was no motion pending, and the judge made that decision sua sponte.

QUESTION: Do you know if he denied the motion one time?

MR. CHRISTOPHERSON: He denied the motion in August and, again, in the transcript he said, I agonized and wrote two separate opinions, and then when it came the day for sentencing he called the counsel in and on the record explained that he had changed his mind.

The other point I'd like to raise is I think, in looking at the rule, this Court has to look at what rule is going to be used to construe that rule, and one point I'd like to make to the court is that the day that Houston v. Lack was decided this Court also decided the Torres case.

In that case the Court indicated that in construing the rules they should be construed liberally with a view that cases should be decided on their merits as opposed to on procedure, and I think if you use that type of analysis that the majority used in the Torres case, apply it to Rule 29, that under these facts the court should have the power to consider the issue of insufficiency of the evidence prior to the time of sentencing.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Christopherson.

The case is submitted.

(Whereupon, at 12:10 p.m., the case in the above-entitled matter was submitted.)