United States of America v. AMIN A. RASHID, AKA Larry Doby Wilson, AKA Jonothan F. Stone, III, AKA Alfred…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1252
___________
UNITED STATES OF AMERICA
v.
AMIN A. RASHID, AKA Larry Doby Wilson, AKA
Jonothan F. Stone, III, AKA Alfred Monger, AKA Otello
Karpo, AKA Christine Harriell, AKA Ortello Karpo,
Amin A. Rashid, Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 93-cr-00264-001)
District Judge: Honorable Jan E. Dubois
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 5, 2010
Before: BARRY, AMBRO and ROTH, Circuit Judges
(Opinion filed: March 19, 2010)
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OPINION
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PER CURIAM
Appellant Amin Rashid was found guilty following a jury trial of 55 counts of mail

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fraud, wire fraud, and money laundering, and one count of criminal forfeiture in
connection with a scheme to defraud commercial loan applicants. Despite receiving
advance fees in the amount of $1,696,470, Rashid defrauded 47 customers and made no
legitimate loans. In May of 1994, Rashid was sentenced to a term of imprisonment of
168 months and three years of supervised release, a $15,000 fine, a $2,700 special
assessment, and he was ordered to pay restitution in the amount of $1,696,470. The
District Court ordered the residential property located at 444 East Mount Pleasant Avenue
forfeited. We affirmed the judgment of conviction and sentence on August 4, 1995 in
United States v. Rashid, C.A. No. 93-2241.
Following his unsuccessful direct appeal, Rashid filed numerous challenges to his
conviction and sentence under 28 U.S.C. § 2255, Federal Rule of Civil Procedure 60(b),
Federal Rule of Criminal Procedure 33, and other statutes and rules. Amin and Joyce
Rashid also challenged the forfeiture order several times unsuccessfully. Rashid filed for
bankruptcy, and we held the restitution obligation to be dischargeable. In re: Rashid, 210
F.3d 201 (3d Cir. 2000). The obligation has since been discharged. Rashid was released
from prison and began serving his term of supervised release on September 2, 2005. See
Docket Entry No. 460. For the next several years, there were no further challenges to the
1993 conviction.
On August 21, 2008, and while he was still serving his term of supervised release,
a federal grand jury returned an indictment charging Rashid with two counts of mail fraud

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Rule 25(b)(1) provides: “After a verdict or finding of guilty, any judge regularly1
sitting in or assigned to a court may complete the court’s duties if the judge who presided
at trial cannot perform those duties because of absence, death, sickness, or other
disability.” Fed. R. Crim. P. 25(b)(1). Rule 25 further provides that: “The successor
judge may grant a new trial if satisfied that: (A) a judge other than the one who presided
at the trial cannot perform the post-trial duties; or (B) a new trial is necessary for some
other reason.” Id. at (b)(2).
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in violation of 18 U.S.C. § 1341, and one count of aggravated identity theft in violation of
18 U.S.C. § 1028A. See United States v. Rashid, D.C. Crim. No. 08-cr-00493. A
warrant for his arrest was issued on the new charges, and the Probation Office petitioned
to revoke Rashid’s 1994 term of supervised release for violating the conditions of
supervised release. See Docket Entry No. 460. A hearing on that petition has been
continued until after the completion of the trial on the 2008 criminal charges. See Docket
Entry No. 467.
In October of 2008, Rashid’s 1993 criminal case was reassigned to a different
United States District Judge following the resignation from the federal bench of the
original trial judge. On December 3, 2008, Rashid filed a motion for a new trial in his
1993 criminal case pursuant to Federal Rule of Criminal Procedure 25(b)(2)(B). In it,1
among other things, he alleged that the trial judge improperly directed a verdict in favor
of the government by instructing the jury that the government “has held the burden of
proving beyond a reasonable doubt each essential element of what is alleged in the
indictment.” Based on an amended trial transcript that was incorrect, the trial judge
previously denied his Rule 60(b)(6) motion raising the same claim, but, once on

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supervised release, Rashid, according to his motion, obtained a copy of the official tape,
had it transcribed on January 8, 2008, and now has proof that the amended official trial
transcript was inaccurate.
The District Court ordered the government to respond to Rashid’s Rule 25(b)
motion. The government submitted an answer, contending that Rashid’s motion for a
new trial, because it alleged newly discovered evidence, would have to meet the
requirements for a Rule 33 motion, and, under Rule 33 it was untimely. In the alternative,
because there was overwhelming evidence of Rashid’s guilt, any error in the court’s
instruction was harmless beyond a reasonable doubt. In an order entered on January 12,
2009, the District Court denied the motion for a new trial as untimely under Rule 33,
because it was filed more than 15 years after the jury’s verdict. Rashid appeals.
We will affirm. We have jurisdiction under 28 U.S.C. § 1291 over final orders of
the District Court. A district court’s denial of a motion for a new trial ordinarily is
reviewed for an abuse of discretion, but legal issues raised by the motion are reviewed de
novo. Cf. United States v. Jasin, 280 F.3d 355, 360 (3d Cir. 2002). Rule 25(b) specifies
the procedures that apply when a trial judge in a criminal case is unable to complete his or
her remaining duties following a verdict or finding of guilt. See Gov’t of Virgin Islands
v. Mills, 935 F.2d 591, 597 (3d Cir. 1991) (newly assigned district judges, requested to
impose lengthy mandatory minimum sentences in cases tried before another judge, abused
their discretion in granting new trials). Rashid’s motion for a new trial was based on

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newly discovered evidence and thus he must meet the requirements of some other rule or
statute in order to proceed.
Under Rule 33, “[a]ny motion for a new trial grounded on newly discovered
evidence must be filed within 3 years after the verdict or finding of guilty.” Fed. R. Crim.
P. 33(b)(1). The District Court properly concluded that Rashid’s motion for a new trial
under Rule 33 was untimely by more than a decade. Furthermore, we agree with the
government’s assertion that it did not waive the timeliness issue. Cf. Eberhart v. United
States, 546 U.S. 12 (2005) (per curiam) (seven-day time limit for filing motion for new
trial grounded on reason other than newly discovered evidence is not jurisdictional and
may be forfeited).
Because Rashid’s motion also could have been construed as an unauthorized
successive section 2255 motion, we note that a successive section 2255 motion may
proceed if certified by a court of appeals to contain “newly discovered evidence that, if
proven and viewed in light of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder would have found the movant
guilty of the offense.” 28 U.S.C. § 2255(h)(1). But we would not grant such
authorization on the basis of Rashid’s motion for a new trial because, at a minimum, he
did not make out a prima facie case that his evidence would be sufficient to establish that
no reasonable factfinder would have found him guilty of the offense.
Last, the government has asked us in its brief on appeal to enjoin Rashid from

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filing any more challenges to his 1993 conviction, absent judicial permission, pursuant to
our power to do so under the All Writs Act, 28 U.S.C. § 1651. See also Abdul-Akbar v.
Watson, 901 F.2d 329 (3d Cir. 1990). We will deny this request without prejudice.
Although the government has made out an undeniable case that Rashid’s history of pro se
challenges to his 1993 conviction is vexatious, see Appellee’s Brief, at 10-14, and we
note with concern that he filed seven pro se motions in the district court between January
and May of 2009, the government has not addressed an apparent mootness issue. Rashid
has served his term of imprisonment and was very close to completing his three-year term
of supervised release when the motion attacking the jury instruction was filed, see United
States v. Jackson, 523 F.3d 234, 242 (3d Cir. 2008); United States v. Cottman, 142 F.3d
160, 165 (3d Cir. 1998). The mootness issue might render the need for an injunction
unnecessary. In addition, it has not persuaded us that the matter of enjoining Rashid,
should it become necessary, is not best left to the newly assigned district judge.
We will affirm the order of the District Court dismissing Rashid’s motion for a
new trial as untimely filed. Appellant’s motion for an order directing the government to
file an appendix, or, in the alternative, to strike the government’s brief, is denied.

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