United States of America v. Michael I. Monus

*The Honorable David L. Bunning, United States District Judge for
the Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0031P (6th Cir.)
File Name: 04a0031p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL I. MONUS,
Defendant-Appellant.
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No. 02-4102
Appeal from the United States District Court
for the Northern District of Ohio at Youngstown.
No. 93-00034—Peter C. Economus, District Judge.
Argued: December 4, 2003
Decided and Filed: January 26, 2004
Before: SILER and GILMAN, Circuit Judges;
BUNNING, District Judge.*
_________________
COUNSEL
ARGUED: David L. Engler, Boardman, Ohio, for Appellant.
John D. Sammon, ASSISTANT UNITED STATES
2 United States v. Monus No. 02-4102
ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF:
David L. Engler, Boardman, Ohio, Martin E. Yavorcik,
Poland, Ohio, for Appellant. John D. Sammon, ASSISTANT
UNITED STATES ATTORNEY, Cleveland, Ohio, for
Appellee.
_________________
OPINION
_________________
SILER, Circuit Judge. After Michael I. Monus was
convicted of various financial crimes, this court upheld his
conviction but remanded for resentencing. Subsequently,
Monus moved for: (1) a new trial on the basis of newly-
discovered evidence, (2) a sentence reduction pursuant to 18
U.S.C. § 3582(c), and (3) a writ of coram nobis. The district
court determined that the motion for a new trial was untimely,
that the motion for sentence reduction was without merit
because the new sentencing guideline at issue was substantive
and not clarifying (and thus not retroactive), and that the
coram nobis motion was inappropriate because Monus is still
is federal custody. He appeals from the district court’s rulings
on these three motions. We affirm.
BACKGROUND
In 1995 Monus was convicted on all counts of a 109-count
indictment that charged him with an assortment of financial
crimes, including bank, wire, and mail fraud. On appeal, this
court affirmed his conviction but vacated his sentence and
remanded for resentencing for the district court to explain
how it calculated the amount of loss and to respond to
Monus’s objections to the Presentence Report. United States
v. Monus, 128 F.3d 376 (6th Cir. 1997). This court rendered
its decision on October 21,1997, and the mandate affirming
Monus’s conviction issued on October 24, 1997.

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No. 02-4102 United States v. Monus 3
On remand, the parties struck a deal. In consideration for
stipulating to a lower loss figure ($5-10 million, as opposed
to the $80 million figure on which the previous sentence was
based) that had the effect of reducing Monus’s net “loss”
enhancement four levels (from 18 to 14), Monus agreed to
waive all rights to appeal, including all rights under 28 U.S.C.
§ 2255. The order resentencing Monus in accordance with
these terms was entered on March 1, 1999.
On March 3, 2000, Monus filed two motions: a motion to
correct a clerical error and a motion for a reduction of
sentence under Rule 35(b). The district court granted the
motion to correct the clerical error but denied the Rule 35(b)
motion. Monus again appealed. While the case was before
this court on Monus’s appeal of the district court’s denial of
his Rule 35(b) motion, however, on March 12, 2001, Monus
filed a motion for a new trial based on newly-discovered
evidence. The district court stayed consideration of the
motion pending a ruling by this court on Monus’s appeal of
his Rule 35(b) motion.
This court affirmed the district court’s denial of Monus’s
Rule 35(b) motion on April 12, 2002. Monus then filed the
other two motions that are the subject of this appeal: the
motion for a sentence reduction pursuant to 18 U.S.C.
§ 3582(c) and the motion for a writ of coram nobis. The
district court considered the three pending motions together
and denied them all. Monus appealed.
STANDARD OF REVIEW
“Ordinarily, [an appellate court] reviews the denial of a
motion for new trial on the basis of newly discovered
evidence for abuse of discretion. [This case,] however,
presents [a] question[] of law . . . . Accordingly, [the court]
conducts a de novo review of the district court’s conclusion[]
of law” that the motion was not timely filed. United States v.
Pelullo, 14 F.3d 881, 886 (3d Cir. 1999) (citation omitted).
The district court’s determination that the relevant sentencing
4 United States v. Monus No. 02-4102
1The Rule was further amended effective December 1, 2002. The
Rule did not change in substance, however, and the same “3 years after
the verdict or finding of guilty” time-limitation still applies. The relevant
language in the post-2002 Rule 3 3 appears in subsection (b)(1 ). (The pre-
200 2 rule w as not divided into subsections.).
guideline revision was substantive and not clarifying is also
reviewed de novo. United States v. Hicks, 4 F.3d 1358, 1360
(6th Cir. 1993). Likewise, “[a] district court’s determination
of legal issues in coram nobis proceedings is reviewed de
novo.” United States v. Johnson, 237 F.3d 751, 754 (6th Cir.
2001).
DISCUSSION
Motion for a New Trial
In considering the timeliness of Monus’s motion for a new
trial, the following dates are relevant: (1) May 25, 1995, the
date on which the jury rendered its guilty verdict;
(2) October 24, 1997, the date on which the mandate issued
from this court affirming Monus’s conviction; (3) March 1,
1999, the date on which the amended judgment was entered
following Monus’s resentencing; and (4) March 12, 2001, the
date on which Monus filed his motion for a new trial.
As to this issue, a preliminary question arises: which
version of Rule 33 should apply, the pre-1998 version, which
requires a motion for a new trial based on newly discovered
evidence to be made “within two years after final judgment,”
or the post-1998 version, which requires that the motion be
made “within 3 years after the verdict or finding of guilty”?1
(Emphasis added). If the post-1998 version applies, even
Monus concedes that his motion was untimely.
“At the time the amendments to Rule 33 were promulgated,
the Supreme Court specified that the amendments would
apply to all pending criminal cases ‘insofar as just and
practicable.’” United States v. Ristovski, 312 F.3d 206, 212

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No. 02-4102 United States v. Monus 5
(6th Cir. 2002) (citing Supreme Court Order 98-17, April 24,
1998). Though we have never addressed this question
directly, this court has strongly suggested that a case such as
Monus’s - a situation where “if amended Rule 33 were
applied . . . , [the defendant’s] three-year period for filing a
motion for new trial . . . would have expired before the
amendments to Rule 33 even went into effect” - would be one
where applying the amended rule would be unjust and
impracticable. Id. We therefore decline to apply the amended
rule.
Even under the old Rule 33, however, the overwhelming
weight of authority suggests that Monus’s motion was
untimely still. This is because those circuits that have
construed “final judgment” in this context - the Sixth not yet
among them - have held that when a defendant’s conviction
is affirmed but sentence vacated, the two-year time limit runs
from the date of the affirmance of the conviction rather than
from the date of resentencing. See, e.g., United States v.
White, 557 F.2d 1249 (8th Cir. 1977); Howell v. United
States, 172 F.2d 213, 215-16 (4th Cir. 1949); see also United
States v. Erwin, 277 F.3d 727, 733 (5th Cir. 2001) (dating
“final judgment” from time of void judgment); United States
v. Lussier, 219 F.3d 217, 219-20 (2d Cir. 2000) (same). Thus,
construing “final judgment” this way, the two-year time
period for Monus would have begun to run on October 24,
1997, the date on which this court issued its mandate
affirming his conviction, and far more than two years prior to
Monus’s March 12, 2001 motion for new trial.
Finally, Monus argues that because the new evidence at
issue here is alleged to be Brady evidence, the time-limitation
for filing his motion should be relaxed. See generally Brady
v. Maryland, 373 U.S. 83, 87 (1963) (holding that “the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process”). This line of
argument was not advanced below, however, and thus this
court need not consider it now. See Saylor v. United States,
315 F.3d 664, 669 (6th Cir. 2003).
6 United States v. Monus No. 02-4102
2 [I]n the case of a defendant who has been sentenc ed to
a term of imprisonment based on a sentencing range
that has subsequently been lowered by the Sentencing
Comm ission . . . , upon motion of the defendant or the
Director of the Bureau of Prisons, or on its own
motion, the court may reduce the term of
imprisonment, after considering the factors set forth in
section 3553(a).
18 U .S.C. § 358 2(c)(2).
3After the 1995 sentencing of Monus but before the 2001
amend ments, the “affect[ing] a financial institution” section was moved
to § 2F1.1(b)(8)(B). (The language stayed the same.). The 2001
amendments eliminated § 2F1.1(b)(8)(B) and moved the revised section
to its present location, § 2B 1.1(b)(12)(A ).
Motion for Sentence Reduction Under 18 U.S.C. § 3582(c)
Monus’s motion for sentence reduction under 18 U.S.C.
§ 3582(c)2 relies on the November 2001 amendments to the
guidelines, which included an overhaul of the financial crimes
guidelines. In 1995, when Monus was sentenced, he received
a four-level enhancement because his offense “affected a
financial institution and [he] derived more than $1,000,000 in
gross receipts from the offense.” USSG § 2B1.1(b)(6)(B)
(1995). This language was altered as part of the November
2001 amendments, however. The post-2001 language, found
in § 2B1.1(b)(12)(A), provides that, “[i]f the defendant
derived more than $1,000,000 in gross receipts from one or
more financial institutions as a result of the offense, increase
by 2 levels.” USSG § 2B1.1(b)(12)(A) (2002).3
While Monus concedes that the 2001 amendments “as a
whole” are substantive in nature, he advances what he calls a
“specific argument” that the 2001 amendment clarified what
it means to “affect” a financial institution such that the district
court erred in denying retroactive application. Of course,
clarifications of the guidelines have retroactive application
while substantive changes do not. United States v. Williams,
940 F.2d 176 (6th Cir. 1991). He places particular reliance on

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No. 02-4102 United States v. Monus 7
the explanatory note to the 2001 amendment, which in part
provides that
[t]he enhancement also was modified to address issues
about what it means to “affect” a financial institution and
how to apply the enhancement to a case in which there
are more than one financial institution involved.
Accordingly, the revised provision focuses on whether
the defendants derived more than $1,000,000 in gross
receipts from one or more financial institutions as a result
of the offense.
USSG App. C, Amendment 617, at 179.
Given the specificity of the question presented, it is no
surprise that this court has not yet had occasion to pass on this
issue. However, the Seventh Circuit did in United States v.
Hartz, 296 F.3d 595 (7th Cir. 2002). It squarely rejected the
very argument advanced by Monus in the instant appeal. It
looked to three factors in determining if USSG
§ 2B1.1(b)(12)(A) is properly considered a clarification or a
substantive change: “(1) how the Sentencing Commission
characterized the amendment; (2) whether the amendment
changes the language of the guideline itself or changes only
the commentary for the guideline; and (3) whether the
amendment resolves an ambiguity in the original wording of
the guideline.” Id. at 599 (citations omitted). Noting the
absence of any indication that the Commission intended the
amendment to be clarifying, the fact that the amendment
changed the plain language of the guideline itself, and the
unambiguity of the original version, it found the amendment
substantive. Id.
The opinion in Hartz is well-reasoned and persuasive. We
therefore adopt its reasoning.
8 United States v. Monus No. 02-4102
4Mo nus styled his mo tion as an “Application for Relief from
Judgment or M otion for Sentence Reduction as if Under R ule 35 (b) or in
the Nature of a W rit of Coram Nob is.” The district court did not address
the Rule 3 5(b) part o f this motion, in all likelihoo d because it had already
ruled on the issue in an order dated March 30, 2000. In any event, such
a motion is wholly without merit because, as the district court explained,
the plain language of the rule makes clear that only the government can
bring a Rule 35 (b) “substantial assistance” m otion. The government’s
decision is not to be questioned unless the defendant can make a
substantial threshold showing of an unconstitutional motive for refusing
to make the mo tion, see United States v. Bagno li, 7 F.3d 90, 92 (6th Cir.
199 3), and no such showing was made here.
Motion for Writ of Error Coram Nobis
“A prisoner in custody is barred from seeking a writ of
error coram nobis.” United States v. Johnson, 237 F.3d 751,
755 (6th Cir. 2001). This is the case even if, as here, § 2255
relief is no longer available. Id. Because Monus remains in
custody, he is barred from seeking the writ.4
AFFIRMED.

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