United States v. Powell, 663 F. App'x 616

Crosby Powell was convicted in 2012 of multiple counts for possessing stolen mail (18 U.S.C. § 1708) and uttering/possessing forged checks (18 U.S.C. § 513(a)); he appealed only the § 513(a) convictions.
This court previously affirmed three § 513(a) counts but vacated eight others for lack of an interstate-commerce nexus, remanding for resentencing (United States v. Powell).
After resentencing, Powell moved pro se for a new trial (Fed. R. Crim. P. 33) relying on an unsigned affidavit from “Rollin D. Meadows” claiming key witness Cheston Foster committed the relevant check misconduct.
The district court denied the motion, finding the Meadows affidavit inadmissible (unsigned) and insufficient to overcome the other evidence; Powell sought an extension to appeal after claiming he did not receive the district court’s order by mail.
The district court found good cause and treated Powell’s extension motion as a timely functional equivalent of a notice of appeal; the government challenged timeliness but the Tenth Circuit found the appeal timely and proceeded to the merits.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of appeal	Powell argued his motion for extension (and later notice) was timely; he did not receive the order by mail.	Government argued formal notice was filed after the extended deadline so appeal is late.	Motion for extension filed within Rule 4(b)(4) period qualified as functional equivalent of notice; appeal timely.
New trial based on newly discovered evidence (Meadows affidavit)	Meadows affidavit (unsigned) shows Foster committed perjury and was the actual actor, so new trial warranted.	Affidavit is unsigned, largely impeaching, does not implicate the three § 513(a) counts sustained on appeal; overwhelming other evidence supports conviction.	Denial affirmed: affidavit was at best impeaching, lacked effect to probably produce acquittal, and was insufficient even if considered.
Appointment of counsel on Rule 33 motion	Powell requested appointed counsel to help present new-trial motion.	District court denied; government implicitly contends denial was proper.	No abuse of discretion: appointment in collateral post-appeal proceedings is discretionary and motion lacked merit/complexity.
Recusal of district judge	Powell alleged bias for allowing trial with inadequate defense prep time.	District court required statutory affidavit and specific allegations; none provided.	Denial of recusal not an abuse of discretion; allegations were perfunctory and unsupported.

United States v. Powell, 767 F.3d 1026 (10th Cir. 2014) (prior appellate disposition vacating some § 513(a) convictions)
United States v. Smith, 182 F.3d 733 (10th Cir. 1999) (motion for extension can be functional equivalent of notice of appeal if it identifies key elements)
United States v. Jordan, 806 F.3d 1244 (10th Cir. 2015) (standard for new trial based on newly discovered evidence)
United States v. Espinosa-Talamantes, 319 F.3d 1245 (10th Cir. 2003) (timeliness of Rule 4(b)(4) extension motions)
United States v. Dotz, 455 F.3d 644 (6th Cir. 2006) (district court may consider extension motions filed within the 30-day window after the 14-day appellate deadline)
Engberg v. Wyoming, 265 F.3d 1109 (10th Cir. 2001) (appointment of counsel in collateral proceedings is discretionary)
United States v. Wooten, 377 F.3d 1134 (10th Cir. 2004) (court generally will not address perfunctory appellate arguments)
ClearOne Commc’ns, Inc. v. Bowers, 651 F.3d 1200 (10th Cir. 2011) (abuse-of-discretion standard for recusal matters)