Rutherford

MEMORANDUM ***

Martin and Nanja Rutherford appeal the district court’s denial of them second motion for new trial. We affirm.

*146 The district court correctly concluded that the Rutherfords’ 2006 motion was untimely. Under Fed.R.Crim.P. 33, a defendant has three years from the verdict or finding of guilty to file a motion for new trial based bn newly discovered evidence. 1 The Rutherfords argue that there was no reason for them to file their second motion for new trial while they still might be successful on the first. But this rationale flies in the face of Rule 33, which clearly contemplates that all such motions must be filed within three years even if there is a pending appeal (the rule only precludes the district court from ruling on the motion while the appeal is pending).

The Rutherfords also contend that the district court abused its discretion by failing to excuse their untimely filing under the doctrine of “excusable neglect.” Fed. R.Crim.P. 45(b)(1)(B). However, the district court carefully considered the relevant factors, including the danger of prejudice to the nonmoving party, the length of the delay, the reasons for the delay and whether the moving party was…