United States v. Gurmit Jassal , 388 F. App'x 748 ( 2010 )

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NOT FOR PUBLICATION JUL 21 2010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.
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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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