Mark Nordlicht and David Levy v. United States

Federal Rule of Criminal Procedure 33 provides that the district court “may vacate any judgment and grant a new trial if the interest of justice so requires.” That rule preserves the court’s common law authority to order a new trial “[i]f, in the opinion of the court, the verdict of the jury should be found against the evidence.” Lee v. Lee, 33 U.S. 44, 50 (1834); see also Crumpton v. United States, 138 U.S. 361, 363 (1891). This Court has not addressed the scope of discretion under the rule, and in the absence of guidance, the courts of appeals have divided over how a district court should review the evidence. In the decision below, the Second Circuit doubled down on a recent precedent to hold that, absent evidentiary or instructional error, the district court may grant a new trial only where the “evidence was patently incredible or defied physical realities” or was similarly flawed. App. 65 (quoting United States v. Archer, 977 F.3d 181, 188 (2d Cir. 2020)). Other courts of appeals, however, take a very different course, allowing the district courts to weigh the evidence, assess credibility, and act as a “thirteenth juror” in considering a motion for a new trial. The question presented is: Whether district courts have discretion to weigh the evidence, including the credibility of witnesses, when deciding to grant a new trial under Rule 33, or whether they must defer to the jury’s view of the evidence unless the evidence is patently incredible, defies physical realities, or is similarly flawed.