U.S. v. BROWN

On May 15, 2008, Defendant Gerald James Brown was convicted by a jury of possession of an unregistered Street Sweeper shotgun as charged in Count 1 of the indictment, as amended, and possession of an unregistered silencer as charged in Count 5. Doc. 79. He was sentenced to twenty four months' imprisonment on December 8, 2008 (Doc. 99), and filed a notice of appeal the same day (Doc. 97).

On February 3, 2010, Defendant filed a motion for a new trial on Count 1 pursuant to Rule 33 of the Federal Rules of Criminal Procedure, and promised to supplement the motion with additional information. Doc. 123. The motion was supplemented on June 15, 2010, and briefing was completed on September 21, 2010. Doc. 134.

The Court has "jurisdiction to entertain the motion and either deny the motion on its merits, or certify its intention to grant the motion to the Court of Appeals, which could then entertain a motion to remand the case." United States v. Cronic, 466 U.S. 648, 667 n. 42 (1984); see also Fed.R.Crim.P. 33(b)(1); United States v. Frame, 454 F.2d 1136, 1138 (9th Cir. 1972) ("Only after the district court has heard the motion and decided to grant it is it necessary to request a remand from the appellate court."). Having reviewed the parties' briefs (Docs. 123, 126, 131, 134), the Court intends to grant the motion for a new trial on Count 1.

1. The Court hereby certifies its intention to grant Defendant's motion for a new trial (Doc. 123).

2. The Clerk is directed to file a copy of this order in the appellate case pending before the United States Court of Appeals for the Ninth Circuit, United States v. Brown, No. 08-10562.

3. Defendant promptly shall renew in the Court of Appeals his motion for remand, and shall file a notice in this Court within seven (7) days after the case is remanded.

DATED this 3rd day of January, 2011.