Whether district courts have discretion under Federal Rule of Criminal Procedure 33 to order a new trial based on the weight of the evidence, even in the absence of evidentiary or instructional error

QUESTIONS PRESENTED 1. Federal Rule of Criminal Procedure 33 permits a district court to order a new trial “if the interest of justice so requires.” The district court here exercised its discretion under Rule 33 to order a new trial, concluding that the entirely circumstantial evidence weighed so heavily against the verdict that there was a “real concern that [Petitioner] is innocent” and that letting his “guilty verdict stand would be a manifest injustice.” On the government’s interlocutory appeal, the Second Circuit reversed, holding that—contrary to the approach taken in every other Circuit—district courts lack discretion to grant a new trial under Rule 33 based on the weight of the evidence unless there is also some evidentiary or instructional error, or “the evidence was patently incredible or defied physical realities.” United States v. Archer, 977 F.3d 181, 188 (2d Cir. 2020) (“Archer I”), annexed as