USA v. Hendrix, Clarence

Filing 34

Opinion

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 To be cited only in accordance with of Appeals United States Court Fed. R. 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, Plaintiff-Appellee, v. CLARENCE HENDRIX, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 CR 757 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.