skip navigation
search

Carlisle v. United States (94-9247), 517 U.S. 416 (1996).
Opinion
[ Scalia ]
Concurrence
[ Souter ]
Syllabus
Dissent
[ Stevens ]
Concurrence
[ Ginsburg ]
HTML version
WordPerfect version
HTML version
WordPerfect version
HTML version
WordPerfect version
HTML version
WordPerfect version
HTML version
WordPerfect version

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES


No. 94-9247


CHARLES CARLISLE, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the sixth circuit

[April 29, 1996]

Justice Scalia delivered the opinion of the Court.

Petitioner Charles Carlisle, along with several co defendants, was tried by jury in the United States District Court for the Western District of Michigan for conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841 846, 84 Stat. 1260, 1265. He did not move during the trial for a judgment of acquittal under Federal Rule of Criminal Procedure 29(a). On July 13, 1993, the jury returned a guilty verdict and was discharged. On July 23, 1993, Carlisle filed a "Motion for a Judgment of Acquittal Pursuant to Federal Rule of Criminal Procedure 29(c)," arguing that there was insufficient evidence to sustain his conviction. App. 6-9. Rule 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." Excluding the intermediate Saturday and Sunday (as Federal Rule of Criminal Procedure 45(a) requires), the 7 day period in this case ended on July 22, 1993. The United States' response to Carlisle's motion argued that it should be denied as untimely and, alternatively, that there was sufficient evidence to sustain the conviction. The District Court denied Carlisle's motion on August 19, 1993. Its written opinion did not address the timeliness issue, but concluded that the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Carlisle knew about, and knowingly and voluntarily joined, the charged conspiracy.

When Carlisle appeared for sentencing on October 14, 1993, the District Court announced that it was reversing its ruling. When it made its decision in August, the court said, it had prepared two opinions, one granting and one denying the motion, and it had now decided to substitute the former for the latter. The court subsequently entered an order that (i) withdrew the opinion and order denying the motion to acquit and (ii) granted "Carlisle's motion for a judgment of acquittal pursuant to Rule 29(c), filed July 23, 1993." App. 45. An opinion accompanying the order concluded that there was insufficient evidence to prove that Carlisle knowingly and voluntarily joined the conspiracy to possess and distribute marijuana. In a footnote, the opinion acknowledged that the motion for judgment of acquittal was filed one day late, but concluded:

". . . I can conceive of no prejudice to the United States which will result from consideration of a motion that is one day lat[e] in this case. Because I believe that refusal to hear this motion would result in grave injustice, and because [Rule 29(c)] permits the Court to extend the deadline, I will consider this motion as if it were filed in a timely manner." Id., at 37.

The United States Court of Appeals for the Sixth Circuit reversed the judgment of acquittal and remanded to the District Court for reinstatement of the jury's verdict and for sentencing. It held that under Rule 29 a district court has no jurisdiction to grant an untimely motion for judgment of acquittal, and that a district court has no jurisdiction to enter a judgment of acquittal sua sponte after the case has been submitted to the jury. 48 F. 3d 190, 192 (1995). We granted certiorari.

Petitioner argues that district courts "should be given the power to go outside the strict time limits of Federal Rule of Criminal Procedure 29(c)" when (1) there is a claim that the defendant was legally innocent, (2) the motion is filed prior to sentencing, and (3) the motion was not timely filed because of attorney error. Brief for Petitioner 8. Petitioner seeks to root this argument in, among other places, the Federal Rules of Criminal Procedure.

Rule 29 is reproduced in its entirety in the margin. [n.1] Subsection (c) provides, in relevant part, that "[i]f the jury returns a verdict of guilty . . . , 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." Federal Rule of Criminal Procedure 45(b) provides that whereas certain untimely acts may be accorded validity upon a showing of excusable neglect, "the court may not extend the time for taking any action under Rul[e] 29 . . . except to the extent and under the conditions stated in [the Rule]." These Rules are plain and unambiguous. If, as in this case, a guilty verdict is returned, a motion for judgment of acquittal must be filed, either within seven days of the jury's discharge, or within an extended period fixed by the court during that 7 day period. There is simply no room in the text of Rules 29 and 45(b) for the granting of an untimely postverdict motion for judgment of acquittal, regardless of whether the motion is accompanied by a claim of legal innocence, is filed before sentencing, or was filed late because of attorney error.

Unable to offer any reading of Rule 29(c) that would permit an untimely motion for judgment of acquittal to be granted, Carlisle contends that Rule 29(a) gives a district court authority to enter a judgment of acquittal sua sponte at any time before sentencing. Rule 29(a), entitled "Motion Before Submission to Jury," provides in relevant part:

"The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses."

It would be quite a surprise to find a district court's sua sponte power to grant judgment of acquittal after submission of the case to the jury hidden away in a provision entitled "Motion Before Submission to Jury." We are not inclined to adopt an interpretation that creates such a surprise unless the intent that the text exceed its caption is clear. Here, to the contrary, the structure of Rule 29 indicates that subsection (a) is limited as its caption says.

Petitioner's proposed reading would create an odd system in which defense counsel could move for judgment of acquittal for only seven days after the jury's discharge, but the court's power to enter such a judgment would linger. In United States v. Smith, 331 U.S. 469 (1947), we declined to read former Federal Rule of Criminal Procedure 33, which placed a 5 day limit on the making of a motion for new trial, as "permit[ting] the judge to order retrial without request and at any time," 331 U. S., at 473. "[I]t would be a strange rule," we said, "which deprived a judge of power to do what was asked when request was made by the person most concerned, and yet allowed him to act without petition," and such an arrangement "would almost certainly subject trial judges to private appeals or application by counsel or friends of one convicted," id., at 474, 475. The same is true here. [n.2] In addition, petitioner's reading makes a farce of subsection (b) of Rule 29, which provides that a court may reserve decision on the motion for judgment of acquittal and decide it after submission to the jury. There would be no need for this procedure if, even without reserving, the court had continuing power to grant judgment of acquittal on its own. In sum, even without the captions (and a fortiori with them) it is clear that subsections (a) and (b) of Rule 29 pertain to motions made before submission, and subsections (c) and (d) to motions made after discharge.

The Government offers an alternate theory of a court's power to act sua sponte under Rule 29: Because Rule 29(a) refers to both a "motion of a defendant" and a court's "own motion," whereas Rule 29(c) refers only to "a motion" simpliciter, the latter must refer to motions both of defendants and of courts, permitting both such "motions" to be made within seven days after the jury's discharge. We do not find this reading plausible. Rule 29(c) not only provides that "a motion for judgment of acquittal" may be made or renewed within seven days after the jury is discharged. It goes on to provide, in its second and third sentences: "If a verdict of guilty is returned 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." The phrase "on such motion" is notably absent from the third sentence--conveying the idea that, where a jury has not returned a verdict, a court can act without motion, but where a jury has returned a guilty verdict, it cannot. But if "on such motion" includes action taken by a court on its own initiative, the limiting phrase "on such motion" in the second sentence has no effect, and a court may act on its own whether or not a verdict has been returned. That is to say, the inclusion of the phrase "on such motion" in one sentence but not in the other would be inexplicable. [n.3]

Petitioner contends that even if Rule 29 does not permit a court to grant an untimely motion for judgment of acquittal, Federal Rule of Criminal Procedure 2 vests the court with supervisory power to enter judgment of acquittal. Rule 2 provides:

"These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay."

This Rule is of no aid to petitioner. It sets forth a principle of interpretation to be used in construing ambiguous rules, not a principle of law superseding clear rules that do not achieve the stated objectives. It does not, that is to say, provide that rules shall be construed to mean something other than what they plainly say--which is what petitioner's proposed construction of Rule 29(c) would require.

We must acknowledge that there is precedent in this Court for using Rule 2 as a basis for deviating from time limits imposed by the Federal Rules of Criminal Procedure. In Fallen v. United States, 378 U.S. 139 (1964), we cited Rule 2 in the course of excusing the failure of an incarcerated paraplegic pro se petitioner to comply with the time limit for filing a notice of appeal under former Federal Rule of Criminal Procedure 37(a). Concluding that the petitioner "had done all that could reasonably be expected" to file a timely appeal, including mailing a notice of appeal to the clerk's office two days before the notice was due, we "decline[d] to read the Rules so rigidly as to bar a determination of his appeal on the merits." 378 U. S., at 144. Fallen has been made obsolete by an amendment to Rule 37(a). [n.4] And of course Fallen was a narrow ruling when it was announced, as is evident from Berman v. United States, 378 U.S. 530 (1964) (per curiam), a decision announced on the same day as Fallen, summarily affirming the dismissal of an appeal that had been filed one day late.

Finally, petitioner cannot rely on Federal Rule of Criminal Procedure 57 as the source of the District Court's authority in this case. The version of Rule 57 in effect when criminal proceedings against petitioner commenced (and which he relied upon at oral argument) states, in relevant part, that, "[i]n all cases not provided for by rule, the district judges . . . may regulate their practice in any manner not inconsistent with these rules." The relevant portion of the current version of Rule 57 is captioned "Procedure When There Is No Controlling Law," and states, "A judge may regulate practice in any manner consistent with federal law, these rules, and local rules of the district." Fed. Rule Crim. Proc. 57(b). We need not decide which version of this Rule controls the present case, because neither authorizes the District Court's action here. A rule permitting a party to submit and prevail on an untimely motion for judgment of acquittal is "inconsistent" (or not "consistent") with Rule 29's 7 day filing limit; and the question of when a motion for judgment of acquittal may be granted does not present a case "not provided for" by Rule 29; and Rule 29 is the "controlling law" governing this question.

As alternative authority for the District Court's action, petitioner invokes courts' "inherent supervisory power." Brief for Petitioner 9. We have recognized that federal courts "may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress." United States v. Hasting, 461 U.S. 499, 505 (1983). Whatever the scope of this "inherent power," however, it does not include the power to develop rules that circumvent or conflict with the Federal Rules of Criminal Procedure. As we recognized in Bank of Nova Scotia v. United States, 487 U.S. 250, 254-255 (1988), holding that federal courts may not invoke supervisory power to circumvent Rule 52(a): "federal courts have no more discretion to disregard the Rule's mandate than they do to disregard constitutional or statutory provisions." Whether the action of the District Court here is described as the granting of an untimely motion, or the sua sponte entry of a judgment of acquittal, it contradicted the plain language of Rule 29(c), and effectively annulled the 7 day filing limit.

In Chambers v. NASCO, Inc., 501 U.S. 32, 47 (1991), we said that we would not " `lightly assume that Congress has intended to depart from established principles' such as the scope of a court's inherent power," id., at 47 (quoting Weinberger v. Romero Barcelo, 456 U.S. 305, 313 (1982)). Similarly, in Link v. Wabash R. Co., 370 U.S. 626, 629-632 (1962), we said that since a district court's authority to dismiss sua sponte for lack of prosecution was a "sanction of wide usage," we would not assume, in the absence of a clear expression, that Federal Rule of Civil Procedure 41(b), which allowed a party to move for dismissal for lack of prosecution, abrogated this "long . . . unquestioned" power. That cautionary principle does not apply in the present case, not only because of the clarity of the text, but also because we are unaware of any "long unquestioned" power of federal district courts to acquit for insufficient evidence sua sponte, after return of a guilty verdict. Indeed, we are aware of only two cases prior to the enactment of the Federal Rules of Criminal Procedure that could be read as asserting in dictum the existence of such a power. United States v. McCracken, 26 F. Cas. 1069, 1069 (No. 15,664) (ED Va. 1878); United States v. Hayden, 26 F. Cas. 236, 238 (No. 15,333) (NDNY 1877). [n.5]

The case law of this Court that petitioner relies upon does not establish any "inherent power" to act in contravention of applicable Rules. In Gaca v. United States, 411 U.S. 618 (1973) (per curiam), which reinstated an appeal that had been dismissed for want of timely prosecution, there was no suggestion that reinstatement was contrary to any statute or rule of procedure. And in United States v. Nobles, 422 U.S. 225 (1975), which approved exercise of a district court's inherent authority to order the disclosure of certain witness statements, we felt it necessary to make sure that such exercise did not conflict with Federal Rule of Criminal Procedure 16. Petitioner's best case is Thompson v. INS, 375 U.S. 384 (1964), which, contrary to former Federal Rule of Civil Procedure 73(a), gave effect to a notice of appeal filed more than 60 days from the entry of judgment. Thompson, however, is not pertinent here, since it expressly relied upon the " `unique circumstances,' " that the cause of the failure to meet the Rule's deadline was an erroneous ruling or assurance by the District Court itself. 375 U. S., at 387 (quoting Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 217 (1962) (per curiam)).

Petitioner's three remaining arguments need not detain us long. First, he argues that the District Court had power to enter a judgment of acquittal in this case under the All Writs Act, 28 U.S.C. § 1651 through the writ of coram nobis. Apart from the fact that the District Court was not asked to issue, and did not purport to be issuing, a writ of coram nobis, that writ would not have lain here, since it was traditionally available only to bring before the court factual errors "material to the validity and regularity of the legal proceeding itself," such as the defendant's being under age or having died before the verdict. See United States v. Mayer, 235 U.S. 55, 67-68 (1914). Moreover, "[t]he All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling." Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 43 (1985). As we noted a few years after enactment of the Federal Rules of Criminal Procedure, "it is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis] would be necessary or appropriate." United States v. Smith, 331 U. S., at 475, n. 4. In the present case, Rule 29 provides the applicable law.

Secondly, petitioner asserts that the failure to allow the District Court to enter a judgment of acquittal would violate the Due Process Clause of the Fifth Amendment. His argument on this point consists of nothing more than bald assertions that Rule 29(c) as applied to the facts of this case transgresses principles of fundamental fairness, "shocks the conscience," and interferes with rights "implicit in the concept of ordered liberty." Brief for Petitioner 28-29 (internal quotation marks omitted) (citing Herrera v. Collins, 506 U.S. 390 (1993); Rochin v. California, 342 U.S. 165, 172 (1952); Palko v. Connecticut, 302 U.S. 319, 325-326 (1937)). Petitioner has failed to proffer any historical, textual, or controlling precedential support for his argument that the inability of a district court to grant an untimely postverdict motion for judgment of acquittal violates the Fifth Amendment, and we decline to fashion a new due process right out of thin air.

Thirdly, petitioner argues that prohibiting a district court to grant a motion for judgment of acquittal filed one day late will lead to needless appeals and habeas corpus proceedings, where it will be more difficult for defendants to obtain relief than in motions directed to the trial court. Assuming arguendo that these contentions are accurate, we cannot permit them to alter our analysis, for we are not at liberty to ignore the mandate of Rule 29 in order to obtain "optimal" policy results. Cf. United States v. Robinson, 361 U.S. 220, 229-230 (1960). We are similarly unmoved by petitioner's contention that the "rationale" behind Rule 29(c)'s time limit does not apply where the motion for judgment of acquittal is filed a mere eight days after the trial. The only evident "rationale" behind Rule 29(c)'s 7 day time limit is that a motion for judgment of acquittal filed eight days after trial is a motion filed one day later than justice and equity demand. As we said in a case involving the filing deadline of the Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1744 (1988 ed.): "If 1 day late filings are acceptable, 10 day late filings might be equally acceptable, and so on in a cascade of exceptions that would engulf the rule erected by the filing deadline; yet regardless of where the cutoff line is set, some individuals will always fall just on the other side of it." United States v. Locke, 471 U.S. 84,101 (1985).

Finally, we may respond to some of the many arguments put forward by the dissent. The dissent makes the sweeping assertion that "a district court clearly has the inherent authority to ensure that a legally innocent defendant is not wrongfully convicted," post, at 7. Perhaps so. As the dissent itself recognizes, however, that power has come to an end once an appeal has been taken. Post, at 17-19. We are in accord, then, that there is some point at which the district court is rendered powerless to enter a judgment of acquittal, and the disagreement between us and the dissent comes down to nothing more cosmic than the question of timing--which we find answered by the text of Rule 29.

In an effort to explain why, if a Rule 29(c) motion is in any event unnecessary, it makes any sense to impose a 7 day deadline upon the making of it, the dissent maintains that the untimeliness of a motion gives a district court discretion to ignore it. Post, at 10-11. This presents the disedifying prospect of a court vested with "the inherent authority to ensure that a legally innocent defendant is not wrongfully convicted," post, at 7, exercising its discretion to let an innocent defendant be wrongfully convicted. Quite obviously, this explanation of the deadline is incompatible with the premise that underlies the dissent's entire argument. As for the dissent's concern, post, at 13, that our decision runs afoul of Rule 2's mandate that the rules "be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay": We see neither simplicity, nor fairness, nor elimination of delay in a regime that makes it discretionary whether an untimely motion for judgment of acquittal will be entertained.

The dissent asserts that "permissive rules do not withdraw pre-existing inherent powers." Post, at 17. That assertion is really not relevant to the present case since, as we have discussed, the power to enter post-verdict judgments of acquittal sua sponte was not a "pre existing inherent power." See supra, at 10-12 and n. 5. But besides the lack of factual predicate for its application here, the principle the dissent proposes would produce some extraordinary consequences. For example, as the cases cited by the dissent illustrate, see post, at 4-5, courts previously have ordered new trials sua sponte. Federal Rule of Criminal Procedure 33, however, provides that "[t]he court on motion of a defendant may grant a new trial . . . ." Following the dissent's logic, Rule 33, being permissive, does not preclude a court from granting a new trial without motion, thereby leaving open to the court a course of action that may well violate the Double Jeopardy Clause. But see Advisory Committee's Notes on 1966 Amendment of Fed. Rule Crim. Proc. 33, 18 U. S. C. App., p. 801 ("The amendments to the first two sentences make it clear that a judge has no power to order a new trial on his own motion, that he can act only in response to a motion timely made by a defendant. Problems of double jeopardy arise when the court acts on its own motion"). Similarly, a pre-existing practice, if there was one, would allow a subpoena to be served by a party or a minor despite Federal Rule of Criminal Procedure 17(d) ("A subpoena may be served by the marshal, by a deputy marshal or by any other person who is not a party and who is not less than 18 years of age"); would allow a judge from another district to take over a jury trial from a disabled judge despite Federal Rule of Criminal Procedure 25(a) ("If . . . the judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge regularly sitting in or assigned to the court . . . may proceed with and finish the trial"); and would allow a court to correct a technical error in a sentence more than 7 days after the imposition of the sentence, despite Federal Rule of Criminal Procedure 35(c) ("The court, acting within 7 days after the imposition of sentence, may correct a sentence that was imposed as a result of arithmetical, technical, or other clear error").

The decisions of Justice Harlan relied upon by the dissent to support the proposition that permissive rules do not eliminate inherent powers are not germane. We have discussed Link above, see supra, at 10. In United States v. Ohio Power Co., 353 U.S. 98, 104 (1957), Justice Harlan noted that this Court has proceeded on the assumption that we have inherent authority to "affect judgments by action which would otherwise be out of time under [our own] Rules." That statement would be relevant if the present case involved a district court's departure from one of its own rules--which of course it does not. In Fernandez v. United States, 81 S. Ct. 642 (1961), 5 L. Ed. 2d 683 (Harlan, J., in chambers), Justice Harlan recognized that the provision of former Federal Rule of Criminal Procedure 46(a) that a "person arrested for an offense not punishable by death shall be admitted to bail" (emphasis added) did not withdraw district courts' authority to revoke bail in a noncapital case. Fernandez, supra, at 644 and n. 7, 5 L. Ed. 2d, at 685, and n. 7. What admitting to bail implies with respect to revocation of bail is not comparable to what granting judgment on motion implies with respect to granting judgment without motion. What the dissent needs, in the Fernandez context, is a case holding that a statute which permits bail for "persons arrested for noncapital offenses" does not preclude bail for persons arrested for capital offenses. Of course, such a case will not be found.

Finally, the dissent contends that United States v. Sisson, 399 U.S. 267 (1970), supports existence of the "inherent power" petitioner invokes. See post, at 13-14. We think not. Sisson did not "implicitly conclude" that it was proper to enter a postverdict judgment of acquittal without motion, because the propriety of the judgment of acquittal was irrelevant to the decision. The only issue was whether the judgment appealed from was a judgment of acquittal (proper or improper), because that would mean that the Government's appeal under the former 18 U.S.C. § 3731 (which did not apply to judgments of acquittal) must be dismissed. See United States v. Wilson, 420 U.S. 332, 351 (1975) (appeal in Sisson "was barred solely by the statute").

* * *

We conclude that the District Court had no authority to grant petitioner's motion for judgment of acquittal filed one day outside the time limit prescribed by Rule 29(c). We therefore affirm the judgment of the Sixth Circuit.

It is so ordered.


Notes

1 "Rule 29. Motion for Judgment of Acquittal

"(a) Motion Before Submission to Jury. Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant's motion for judgment of acquittal at the close of the evidence offered by the government is not granted, the defendant may offer evidence without having reserved the right.

"(b) Reservation of Decision on Motion. The court may reserve decision on a motion for judgment of acquittal, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved.

"(c) Motion after Discharge of Jury. If the jury returns a verdict of guilty or is discharged without having returned a verdict, 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. If a verdict of guilty is returned 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. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury.

"(d) Same: Conditional Ruling on Grant of Motion. If a motion for judgment of acquittal after verdict of guilty under this Rule is granted, the court shall also determine whether any motion for a new trial should be granted if the judgment of acquittal is thereafter vacated or reversed, specifying the grounds for such determination. If the motion for a new trial is granted conditionally, the order thereon does not affect the finality of the judgment. If the motion for a new trial has been granted conditionally and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. If such motion has been denied conditionally, the appellee on appeal may assert error in that denial, and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court."

2 The dissent forcefully argues that Smith does not compel the result we reach in this case. Post, at 17-19. That is an effective rejoinder to an argument we have not made. In response to the argument we have made--that some of the considerations supporting the holding in Smith apply here--the dissent (i) ignores the portion of Smith discussing the strangeness of a rule that would give a judge greater power to act sua sponte than on motion; and (ii) transforms Smith's desire to spare trial judges "private appeals or application by counsel or friends of the person convicted" into a concern for the "appearance of impropriety" that "ex parte approaches" would create, post, at 18, which concern in the present context (though presumably for some reason not in the Smith context) the dissent regards as "a highly inappropriate comment on the integrity of the federal judiciary," ibid., and the dissent says it was dictum in Smith anyway.

3 Perhaps even more inexplicable is what precisely would be achieved by the Government's reading, which (unlike petitioner's theories) would permit the court to act sua sponte only during the 7 day period specified by the Rule (or any extension thereof ordered by the court during the 7 day period, as Rule 29(c) allows). The sole beneficiary of the Government's textual contortions is the district judge who wants to set aside a verdict, but lacks the wit to invite a motion for that during the 7 day period, or (if defendant's counsel is unavailable) to extend the 7 day period, sua sponte, in order to invite such a motion later. It is our hope and belief that no such district judge exists.

4 Rule 37(a) was amended in 1966 to provide that a district court may extend the time for filing a notice of appeal "[u]pon a showing of excusable neglect." See Fed. Rule Crim. Proc. 37(a) (1966). When Rule 37(a) was abrogated and replaced by Federal Rule of Appellate Procedure 4(b), the substance of this amendment was transferred to Rule 4(b). See Fed. Rule App. Proc. 4(b) (1968).

5

The dissent's extended discussion of pre-Rule federal cases produces a lot of smoke, and no fire. Ansley v. United States, 135 F. 2d 207, 208 (CA5 1943), described by the dissent as "establishing a district court's inherent power to review sua sponte a jury verdict for sufficiency of the evidence," post, at 11, establishes no such thing. There, after noting the appellants' failure to renew their motions for directed verdict at the close of evidence, the Fifth Circuit said:

"[T]he question of the sufficiency of the evidence was not properly saved for review by this court. It is true that the question may and should be raised by the court of its own motion, if necessary to prevent a miscarriage of justice, but this is not such a case. We have examined the record and found it to contain ample evidence to support the judgment." 135 F. 2d, at 208.

It is obvious that the statement "the question may and should be raised by the court of its own motion" refers to the power of an appellate court to review sufficiency of the evidence where the issue has not been preserved for appeal. The cases cited by the dissent deal with the power of a district court to enter a judgment of acquittal before the return of a verdict (i.e., to direct a verdict of acquittal), see Cady v. United States, 293 F. 829 (CADC 1923); Nosowitz v. United States, 282 F. 575, 578 (CA2 1922); United States v. Fullerton, 25 F. Cas. 1225 (No. 15,176) (SDNY 1870); the power of a district court to set aside a verdict and order a new trial, see Wiborg v. United States, 163 U.S. 632, 658-659 (1896); United States v. Harding, 26 F. Cas. 131, 136 (No. 15,301) (ED Pa. 1846); cf. Charles v. State, 4 Port. 107, 109-110 (Ala. 1836); the power of a district court to enter judgment of acquittal where the defendant has made a pre-or postverdict motion to acquit, see Ex Parte United States, 101 F. 2d 870, 878 (CA7 1939), affirmed by an equally divided court in United States v. Stone, 308 U.S. 519 (1939); United States v. Standard Oil Co., 23 F. Supp. 937, 938-939 (D. Wis. 1924); cf. State v. Meen, 171 Wis. 36, 38-39 (1920); and even the power of an appellate court to reverse a district court's denial of a motion for directed verdict, see Nosowitz, supra, at 578; Cherry v. United States, 78 F. 2d 334 (CA7 1935); Reiner v. United States, 92 F. 2d 823, 824-825 (CA9 1937); France v. United States, 164 U.S. 676, 680 (1897); Romano v. United States, 9 F. 2d 522, 524 (CA2 1925). Not a single pre-Rule case cited by the dissent purports to exercise the power at issue here: a district court's power to enter judgment of acquittal for insufficient evidence, without motion, and after the return of a guilty verdict. The dissent apparently thinks it an adequate explanation for this lack of support that, prior to our decision in United States v. Smith, 331 U.S. 469, 474 (1947) (suggesting that sua sponte grant of a new trial may raise double jeopardy concerns), district courts could order new trials where there was insufficient evidence to sustain the jury verdict. Post, at 7-8. But if these district courts truly had latent inherent power to enter a judgment of acquittal, surely at least some of them would have been willing to give a legally innocent defendant that to which he was entitled--viz., a judgment of acquittal--rather than just a new trial.