In Re Henry James Wright, Petitioner.in Re Carolyn Wright, Petitioner, 826 F.2d 1061 (4th Cir. 1989)

Henry James Wright and Carolyn Wright have an appeal pending before this Court from their various criminal convictions of income tax evasion, obstruction of justice, transportation of women across state lines for the purpose of prostitution and in aid of racketeering, and making false statements to a grand jury. They have now applied for a writ of mandamus to compel the district court to respond to their motion to set aside the verdict and to dismiss the indictment. In addition, their petition for a writ of mandamus alleges other errors of the district court. We deny the petition for the reasons given below.

The jury's verdict against the Wrights was delivered on November 14, 1986. On November 18, the Wrights filed a pro se motion to set aside the verdict. On November 21, a motion for a new trial was filed by their appointed counsel. Both these motions were denied by the district court on December 1, 1986. On December 9, the Wrights filed simultaneously another pro se motion to set aside the verdict and their notice of appeal. The district court denied the motion, on the ground that it lacked jurisdiction. The Wrights contend that the motion was filed before the notice of appeal, that the notice of appeal was premature and that their case remains within the jurisdiction of the district court.

Generally, the filing of a timely notice of appeal from a final judgment deprives the district court of jurisdiction to proceed further in the case. United States v. Ellison, 557 F.2d 128 (7th Cir.), cert. denied, 434 U.S. 965 (1977). In this Circuit, the district court may consider and deny, but not grant, a timely motion for a new trial filed after an appeal is begun. Rakes v. United States, 163 F.2d 771, 772-73 (4th Cir. 1947), cert. denied, 335 U.S. 826 (1948). The December 9 motion to set aside the verdict can be viewed as a motion for a new trial. Rule 33, Federal Rules of Criminal Procedure, provides that a motion for a new trial raising any ground except newly discovered evidence must be filed within seven days of the verdict. On December 1, the district court ruled against the Wrights on two such motions, both timely. However, the December 9 motion came twenty-five days after the verdict. It was clearly untimely, and the timeliness requirements are jurisdictional. United States v. Smith, 331 U.S. 469 (1947); 3 Wright, Federal Practice and Procedure Sec. 558, p. 360-61 (2d ed. 1982). The district court correctly denied the motion.

Similarly, if the portion of the Wrights' December 9 motion which requests dismissal of the indictment is viewed as a Rule 34 motion to arrest judgment, it too must be held untimely because the same seven-day limit for filing applies.

The Wrights present three other grounds for relief, all of which essentially claim that the Speedy Trial Act was violated in this trial and their first trial. These are matters which should be raised in their appeal. Mandamus may not be used as a means of circumventing the normal appellate process. In re United Steelworkers, 595 F.2d 958, 960 (4th Cir. 1979).

Accordingly, although leave to proceed in forma pauperis is granted, the petition for a writ of mandamus is denied.

DENIED.