United States v. Hendrix, Clarence , 280 F. App'x 540 ( 2008 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United
To be citedStates Court
only in accordance of R.Appeals
with Fed. App. P.
32.1Not to be cited per Circuit Rule 53
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 29, 2008∗
Decided June 2, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
KENNETH F. RIPPLE, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 07-2869
UNITED STATES OF AMERICA, Appeal from the United
Plaintiff-Appellee, States District Court for the
Northern District of Illinois,
v. Eastern Division.
CLARENCE HENDRIX, No. 04 CR 757
Defendant-Appellant. James B. Zagel, Judge.
Order
After we affirmed his conviction, 482 F.3d 962 (7th Cir. 2007), Clarence Hendrix
filed in the district court a motion contending that newly discovered evidence calls for a
new trial. The district court denied this motion as untimely, and Hendrix has appealed.
Fed. R. Crim. P. 33(b)(1) allows a defendant “3 years after the verdict or finding
of guilty” to file a motion for a new trial on the ground of newly discovered evidence.
The jury found Hendrix guilty on May 12, 2005. He therefore had until May 12, 2008, to
∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
No. 07-2869 Page 2
file a motion under Rule 33(b)(1). His motion, which was filed on May 16, 2007, is
timely. The district court did not give any reason for its contrary decision, nor does the
prosecutor’s brief on appeal supply one.
The prosecutor contends that the motion is substantively deficient because the
evidence on which Hendrix relies is not newly discovered and would not justify a new
trial even if it were new. But that question should be considered in the first instance by
the district court.
The judgment is reversed and the case remanded for a decision on the merits.