                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

Nos. 03-2068 & 04-1377
UNITED STATES OF AMERICA,
                         Plaintiff-Appellant, Cross-Appellee,
                               v.

IVAN EBERHART,
                       Defendant-Appellee, Cross-Appellant.


                        ____________
          Appeals from the United States District Court
              for the Northern District of Illinois.
            No. 98 CR 946—James B. Zagel, Judge.
                        ____________
   ARGUED OCTOBER 1, 2004—DECIDED OCTOBER 28, 2004
                     ____________



  Before FLAUM, Chief Judge, and BAUER and POSNER,
Circuit Judges.
  FLAUM, Chief Judge. Ivan Eberhart was convicted by a
jury of conspiring to distribute cocaine. Eberhart subse-
quently moved for a judgment of acquittal or in the alter-
native for a new trial. The district court denied the motion
for judgment of acquittal, but granted the motion for a new
trial. The government appeals the grant of a new trial, and
Eberhart cross-appeals the denial of the judgment of ac-
quittal. For the reasons stated herein, we reverse the grant
of a new trial, remand for sentencing, and dismiss the cross-
appeal for lack of jurisdiction.
2                                     Nos. 03-2068 & 04-1377

                       I. Background
  On December 16, 1998, Drug Enforcement Agency (“DEA”)
Task Force Officer Daniel Foley and DEA Agent Robert Glynn
arrested Charles Bolden for distributing cocaine. After be-
ing arrested, Bolden agreed to help the DEA apprehend his
drug source, then identified only as “E.” Officer Foley and
Agent Glynn directed Bolden to telephone his source, order
two kilograms of cocaine, and attempt to arrange a meeting
in person. Bolden then called Eberhart:
    BOLDEN:          Hey I need you.
    EBERHART:        Okay. What flavor.
    BOLDEN:          Uh, I need about 2 more.
    EBERHART:        Okay [unintelligible].1
  After several additional phone calls, the two men agreed
to meet at 5:15 P.M. on December 17, 1998, “where we met
at last time [ ] by the state trooper place.” Before the meet-
ing, Foley and Glynn fitted Bolden with an electronic re-
cording and transmitting device. They then followed in a
separate car as Bolden drove to a parking lot outside a
Kentucky Fried Chicken at the intersection of East 83rd
Street and South Martin Luther King Drive in Chicago.2 At
5:15 P.M., Eberhart arrived. Bolden got into Eberhart’s car
and the two drove out of the parking lot. As they drove,
Eberhart repeatedly asked Bolden what had happened to
him while in DEA custody the day before.3 After talking for
several minutes, the men returned to the parking lot. When
Bolden got out of the car, DEA agents arrested Eberhart.


1
  The DEA recorded this and several other conversations between
Bolden and Eberhart.
2
  The parking lot was directly across the street from an Illinois
State Police building.
3
  Just before being arrested on December 16, 1998, Bolden called
Eberhart and alerted him that the DEA was about to arrest him.
Nos. 03-2068 & 04-1377                                        3

  Although no drugs were found on Eberhart, he confessed
that he had been distributing between twenty and forty
kilograms of cocaine per month, that Bolden was one of his
customers, and that he had sold Bolden two kilograms of
cocaine on December 15, 1998. Eberhart also agreed to help
the DEA arrest his source of supply, identified only as
“Tommy.” Defendant gave Foley and Glynn a physical de-
scription of Tommy, his cellular and pager phone numbers,
and the location of a “stash house” out of which Tommy
operated. Eberhart also explained that his standard procedure
for obtaining additional cocaine was to call Tommy, sched-
ule a pick up, and arrive at the stash house at either 6:00
A.M. or 6:00 P.M. to blend in with ordinary commuters.

  At the direction of Foley and Glynn, Eberhart called Tommy
to attempt to arrange a cocaine sale. On December 19, 1998,
however, Eberhart terminated his cooperation with the DEA.
The sale fell through, and Tommy was never apprehended.
Despite these setbacks, Foley and Glynn searched the stash
house identified by Eberhart, discovering a scale, a firearm,
and two high-speed money counters.
  On March 16, 1999, the grand jury for the Northern District
of Illinois indicted Eberhart on one count of conspiring to
distribute cocaine, and one count of distributing cocaine. At
trial, the government introduced evidence of its investiga-
tion as described above.
  On April 3, 2002, a jury acquitted Eberhart of the distri-
bution charge, but convicted him of the conspiracy charge.
The district court set May 15, 2002 as the deadline for post-
trial motions. On May 15, 2002, Eberhart moved for judgment
of acquittal or, in the alternative, a new trial. On October 30,
2002, Eberhart filed a supplemental memorandum in support
of his motions for judgment of acquittal or a new trial.
  On March 21, 2003, the district court denied the motion
for judgment of acquittal, but granted the motion for a new
trial. It cited three reasons justifying a new trial. First, the
4                                      Nos. 03-2068 & 04-1377

court explained that it was concerned about the accuracy of
a transcript of one of the phone conversations between
Eberhart and Bolden that had been published to the jury.
The transcript at issue (Transcript 7A) reflects the following
exchange:
    BOLDEN:           Okay, so, [unintelligible] we gonna take
                      care of them people? How you wanna do
                      that?
    EBERHART:         I’m gonna, I’m gonna talk to you face to
                      face.
    BOLDEN:           Okay. Alright, I’ll see you then.4
  In closing argument, the government repeatedly emphasized
Eberhart’s desire for a “face to face” meeting, asserting that
this was consistent with the actions of a drug dealer attempt-
ing to avoid having his conversations recorded by law en-
forcement.
   After trial, however, a defense expert opined that Transcript
7A incorrectly quoted Eberhart as calling for a “face to face”
meeting. The expert asserted that, “it is impossible to deter-
mine from the tape what is actually being said. The phrase
‘face to face’ clearly does not fit with the rhythm and articu-
lation of syllables on the tape.”
  The second reason cited by the district court as justifying
a new trial was its belief that it might have erred in al-
lowing potential hearsay testimony into evidence. During
the government’s case-in-chief, Foley testified about his
post-arrest interview with Bolden, despite the fact that
Bolden was not called as a witness. The government asked
Foley who Bolden had identified as his source of supply. Over


4
  Transcript 7A was published to the jury without objection.
Defense counsel later objected to allowing the jury to take all of
the transcripts into the deliberation room. The district court
overruled the objection.
Nos. 03-2068 & 04-1377                                            5

defense counsel’s objection, the district court permitted Foley
to answer, instructing the jurors that they should consider
the testimony only to explain the course of the investigation,
not for its truth. Foley then testified that Bolden “agreed to
make a phone call to ‘E,’ his source of supply, to obtain two
more kilograms of cocaine.” Defense counsel again objected,
and asked that the court strike the testimony “about his
source of supply, with reference to Ivan Eberhart.” The
district court overruled the objection. In granting the motion
for a new trial, the district court reflected that “[w]ere I to
rule on this issue again, I might rule differently.”
  Finally, the district court granted a new trial because it
believed that it had erred by failing to give a buyer-seller
instruction to the jury.5 Defense counsel did not request the


5
    Seventh Circuit Pattern Jury Instruction 6.12 provides:
      The existence of a simple buyer-seller relationship between a
    defendant and another person, without more, is not sufficient to
    establish a conspiracy, even where the buyer intends to resell
    [name the goods.] The fact that a defendant may have bought
    [name of goods] from another person or sold [name of goods] to
    another person is not sufficient without more to establish that
    the defendant was a member of the charged conspiracy.
      In considering whether a conspiracy or a simple buyer-seller
    relationship existed, you should consider all of the evidence,
    including the following factors:
      (1) Whether the transaction involved large quantities of
          [name of goods];
      (2) Whether the parties had a standardized way of doing
          business over time;
      (3) Whether the sales were on credit or on consignment;
      (4) Whether the parties had a continuing relationship;
      (5) Whether the seller had a financial stake in a resale by
          the buyer;
                                                     (continued...)
6                                       Nos. 03-2068 & 04-1377

instruction, nor did he argue to the jury that Eberhart was
innocent of the conspiracy charge because he and Bolden had a
mere buyer-seller relationship.
  In granting the motion, the district court explained: “none of
these concerns standing alone or in pairing would cause me to
grant a new trial,” but the three issues cumulatively “persuade
me that the interests of justice require a new trial.” The court
also noted, “I believe a new trial will quite likely lead to another
conviction.”
  Of the three grounds cited by the district court, Eberhart’s
initial motion pointed only to the alleged flaw in Transcript 7A
as justifying a new trial. The admission of Bolden’s statement
and the lack of a buyer-seller instruction were first raised in
defendant’s untimely supplemental memorandum. The govern-
ment, however, did not argue to the district court that it lacked
jurisdiction to consider the assertions raised in the supplemen-
tal memorandum.


                          II. Discussion
A. New Trial
  We have jurisdiction to hear an appeal from the grant of a
motion for a new trial under 18 U.S.C. § 3731, and review the
district court’s decision for abuse of discretion. United States v.
Woolfolk, 197 F.3d 900, 904-05 (7th Cir. 1999); United States v.
Boyd, 55 F.3d 239, 242 (7th Cir. 1995).
  Federal Rule of Criminal Procedure 33 provides, in rele-
vant part, that “the court may vacate any judgment and



(...continued)
      (6) Whether the parties had an understanding that the [name
          of goods] would be resold.
      No single factor necessarily indicates by itself that a defen-
    dant was or was not engaged in a simple buyer-seller relation-
    ship.
Nos. 03-2068 & 04-1377                                         7

grant a new trial if the interest of justice so requires.”
“[C]ourts have interpreted [Rule 33] to require a new trial
‘in the interests of justice’ in a variety of situations in which
the substantial rights of the defendant have been jeopar-
dized by errors or omissions during trial.” United States v.
Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989). “A jury verdict in
a criminal case is not to be overturned lightly, and therefore
a Rule 33 motion is not to be granted lightly.” United States
v. Santos, 20 F.3d 280, 285 (7th Cir. 1994) (quoting United
States v. Morales, 902 F.2d 604, 605 (7th Cir. 1990), amended
on other grounds, 910 F.2d 467 (7th Cir. 1990)). “Any motion
for a new trial grounded on any reason other than newly
discovered evidence must be filed within 7 days after the
verdict or finding of guilty, or within such further time as
the court sets during the 7-day period.” Fed. R. Crim. P.
33(b)(2).
  The government contends that the district court abused
its discretion by basing its decision to grant a new trial on
arguments that were not timely raised by Eberhart. The
government correctly points out that Eberhart’s initial mo-
tion did not argue that the district court erred by admitting
Bolden’s statement or failing to give a buyer-seller instruc-
tion. Eberhart counters that the government forfeited its
challenge to the timeliness of his supplemental memoran-
dum by not raising the issue before the district court. See
United States v. Olano, 507 U.S. 725, 731 (1993) (a party
may forfeit a right by failing to timely assert it); EEOC v.
Ind. Bell Tel. Co., 256 F.3d 516, 526 (7th Cir. 2001) (claims
of forfeiture may themselves be forfeited). The government
replies that Rule 33’s time limits are jurisdictional, and,
therefore, may be raised for the first time on appeal. Accord-
ingly, the question becomes whether Rule 33’s time limits
are “jurisdictional.”
  Federal Rule of Criminal Procedure 45(b)(2) provides, in
relevant part, that “[t]he court may not extend the time to
take any action under [Rule 33] . . . except as stated in [that]
8                                    Nos. 03-2068 & 04-1377

rule[ ].” The Supreme Court has held that Rule 45(b)’s pro-
hibition on extensions of time is “mandatory and jurisdic-
tional.” United States v. Robinson, 361 U.S. 220, 229 (1960);
see also United States v. Smith, 331 U.S. 469, 474 n.2 (1947)
(holding that Rule 33’s time limitations cabin the district
courts’ power to grant a new trial). Following these prece-
dents, “[w]e have previously emphasized that [Rule 33’s] 7-
day period is jurisdictional, and that the court is without
jurisdiction to consider even an amendment to a timely new
trial motion if it is filed outside the seven day period, absent
a timely extension by the court or new evidence.” United
States v. Washington, 184 F.3d 653, 659 (7th Cir. 1999); see
also United States v. Hocking, 841 F.2d 735, 736 (7th Cir.
1988).
  Nevertheless, recent Supreme Court precedent casts doubt
on whether Rule 33’s time limitations are “jurisdictional” in
the sense that they may be raised for the first time on
appeal. In Kontrick v. Ryan, 124 S. Ct. 906, 910 (2004), the
Supreme Court held that Federal Rule of Bankruptcy
Procedure 4004, which governs the time for filing objections
to a debtor’s discharge, was not jurisdictional. The Court
concluded, therefore, that a debtor could not challenge the
timeliness of a creditor’s objection after the objection had
been decided on the merits. Id.
  The Court explained that a rule is jurisdictional only if it
“delineat[es] the classes of cases (subject-matter jurisdic-
tion) [or] the persons (personal jurisdiction) falling within
a court’s adjudicatory authority.” Id. at 915. Mere “claim-
processing rules,” however, are not jurisdictional. Id.
  The reasoning of Kontrick may suggest that Rule 33’s time
limits are merely inflexible claim-processing rules that
could be forfeited if not timely asserted. Kontrick does not,
however, expressly overrule Robinson or Smith. Because we
find these earlier precedents controlling, we are bound to
follow them until expressly overruled by the Supreme
Nos. 03-2068 & 04-1377                                       9

Court. Agostini v. Felton, 521 U.S. 203, 237 (1997) (“[I]f a
precedent of [the Supreme] Court has direct application in
a case, yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the case
which directly controls, leaving to [the Supreme] Court the
prerogative of overruling its own decisions.” (quoting
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S.
477, 484 (1989)). Accordingly, the government may challenge
the timeliness of Eberhart’s supplemental memorandum for
the first time on appeal.
  Having determined that we may reach the issue, we find
that the district court lacked jurisdiction to consider the ar-
guments raised in Eberhart’s supplemental memorandum,
which was filed well after the post-trial motions deadline. See
United States v. Holt, 170 F.3d 698, 702-03 (7th Cir. 1999).
  Eberhart contends, nevertheless, that the arguments raised
in his supplemental memorandum were timely. First,
defendant asserts that his initial motion preserved the ob-
jection to Bolden’s statement by arguing that “the court erred
by overruling defense objections and admitting improper
evidence and argument to the jury on behalf of the govern-
ment.” The supplemental memorandum merely expanded
upon a timely raised argument, Eberhart contends. We dis-
agree. This vague reference did not “apprise[ ] the court of
the precise nature of the alleged error,” United States v.
Davis, 15 F.3d 1393, 1406-07 (7th Cir. 1994).
  Second, defendant asserts that the arguments raised in
his supplemental memorandum relate back to his initial
motion. We previously have rejected this theory: “[defendant’s]
argument that we should allow an amendment or supple-
mental motion to relate back to the original date would defeat
the express language of the rule, and would create a back
door through which defendants could raise additional grounds
for the new trial long after the 7-day period had expired.”
Holt, 170 F.3d at 703.
10                                       Nos. 03-2068 & 04-1377

  Of the justifications for a new trial cited by the district
court, therefore, only the alleged error in Transcript 7A was
within its jurisdiction to consider. Standing alone, this was
insufficient to justify a new trial.6 Even if the transcript
mistakenly quotes Eberhart as calling, in haec verba, for a
“face to face” meeting, undisputed portions of the transcript
make clear that the two men planned to meet in person.7
Eberhart’s exact choice of words was immaterial to the gov-
ernment’s closing argument—that defendant’s plan to meet
in person was consistent with the actions of a drug dealer
trying to evade detection by law enforcement.
  Moreover, the district court instructed the jurors that: (i)
the tape was evidence; (ii) the transcript was not evidence,
but merely a guide to the contents of the tape; and (iii) in
the event of a conflict between the two, the tape controlled.
We presume that jurors follow the instructions given them.
United States v. Linwood, 142 F.3d 418, 426 (7th Cir. 1998).
“[T]his presumption is only overcome if there is an ‘over-
whelming probability’ that the jury was unable to follow the
instruction as given.” Id. (quoting Doe v. Johnson, 52 F.3d
1448, 1458 (7th Cir. 1995)) (alteration in original). Eberhart
offers no evidence to rebut this presumption.
  Eberhart argues that two additional grounds rejected by
the district court justify its decision to grant a new trial.
First, defendant asserts that the introduction of Bolden’s
statement violated his rights under the Confrontation Clause.
This argument was not raised in Eberhart’s initial motion,
and therefore cannot be considered. Were we to reach the


6
  The district court recognized this: “none of these concerns stand-
ing alone or in pairing would cause me to grant a new trial.”
7
  For example, unchallenged portions of Transcript 7A quote
Eberhart as saying, “I’m ready now. If you wanna see me now?”
Moments later, Bolden suggests that they meet “where we met at
last time [ ] by the state trooper place,” to which Eberhart responds,
“Yeah. Okay.”
Nos. 03-2068 & 04-1377                                      11

argument on the merits, it would fail. As discussed, Bolden’s
statement was offered solely to explain the course of the
investigation. The Confrontation Clause “does not bar the
use of testimonial statements for purposes other than estab-
lishing the truth of the matter asserted.” Crawford v.
Washington, 124 S. Ct. 1354, 1369 n.9 (2004). The govern-
ment, moreover, did not dwell on Bolden’s statement. To the
contrary, it was defense counsel who connected the dots,
asserted that “E” meant Eberhart, and revisited the issue of
Bolden’s statement on cross-examination.
  Second, defendant contends that the government violated
his Due Process rights by misrepresenting to the district
court that Bolden was not peculiarly within its power to
produce. Eberhart argues that the district court, based on
this misinformation, denied his request for a missing wit-
ness instruction. Eberhart did not raise a Due Process argu-
ment in his initial motion for a new trial, and fails to point
out any misrepresentation made by the government. This
argument cannot, therefore, justify the district court’s grant
of a new trial.
  The district court cited three alleged errors justifying its
grant of defendant’s motion for a new trial. The first two
were beyond its jurisdiction to consider; the third was not
error. Accordingly, the district court abused its discretion in
granting a new trial.


B. Judgment of Acquittal
  Eberhart cross-appeals the district court’s denial of his
motion for judgment of acquittal. Because the district court
also granted defendant’s motion for a new trial, Eberhart
concedes that the denial of his motion for judgment of ac-
quittal does not “end[ ] the litigation on the merits.” Midland
Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989)
(quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 521
(1988)). Defendant argues, nevertheless, that we have ap-
12                                   Nos. 03-2068 & 04-1377

pellate jurisdiction over his cross-appeal under the collateral
order doctrine or the doctrine of pendent appellate jurisdic-
tion. We disagree.
  An order may be appealed under the collateral order
doctrine only if it: (i) conclusively determines a disputed
question; (ii) resolves an important issue separate from the
merits of the action; and (iii) is effectively unreviewable on
appeal from a final judgment. United States v. Rinaldi, 351
F.3d 285, 288 (7th Cir. 2003). The order at issue does not
satisfy the latter two elements. First, a motion for judgment
of acquittal requires a court to evaluate whether a reason-
able jury could convict the defendant, and therefore is tied
intimately to the merits. See United States v. Ferguson, 246
F.3d 129, 138 (2d Cir. 2001). Second, Eberhart’s motion does
not seek to vindicate a right that will be lost irreparably if
the case is retried. Cf. Abney v. United States, 431 U.S. 651,
662 (1977). Thus, the ruling is effectively reviewable on
appeal from a final judgment.
  Nor is the denial of Eberhart’s motion for judgment of ac-
quittal appealable under the doctrine of pendent appellate
jurisdiction. “That doctrine allows a court of appeals ‘to re-
view an otherwise unappealable interlocutory order if it is
inextricably intertwined with an appealable one.’ ” Montaño v.
City of Chicago, 375 F.3d 593, 599 (7th Cir. 2004) (quoting
Jones v. InfoCure Corp., 310 F.3d 529, 536 (7th Cir. 2002)).
  It is doubtful that pendent appellate jurisdiction is avail-
able in criminal cases. In Abney, the Supreme Court held that
a defendant could immediately appeal, under the collateral
order doctrine, the denial of a motion to dismiss raising a
Double Jeopardy defense. 431 U.S. at 662. The Court cau-
tioned that its holding was “based on the special consider-
ations permeating [Double Jeopardy claims].” Id. at 663.
“[O]ther claims presented to, and rejected by, the district
court in passing on the accused’s motion to dismiss . . . . are
appealable if, and only if, they too fall within [the] col-
Nos. 03-2068 & 04-1377                                       13

lateral-order exception to the final-judgment rule.” Id.
Cases interpreting Abney appear to categorically foreclose
pendent appellate jurisdiction in criminal cases. See United
States v. MacDonald, 435 U.S. 850, 857 n.6 (1978); United
States v. Bloom, 149 F.3d 649, 657 (7th Cir. 1998); Ferguson,
246 F.3d at 138; United States v. Hsia, 176 F.3d 517, 526
(D.C. Cir. 1999); Robertson v. Mullins, 29 F.3d 132, 136 n.6
(4th Cir. 1994); United States v. Garner, 632 F.2d 758, 763
n.2 (9th Cir. 1980). But see United States v. Van Engel, 15
F.3d 623, 629 (7th Cir. 1993) (suggesting that pendent
appellate jurisdiction may be available in criminal cases);
United States v. Zafiro, 945 F.2d 881, 885 (7th Cir. 1991)
(same).
  We need not decide, however, whether a litigant may ever
invoke the doctrine in a criminal case, because it does not
apply to Eberhart’s cross-appeal. For pendent appellate
jurisdiction to apply, “it must be practically indispensable
that we address the merits of the unappealable order in
order to resolve the properly-taken appeal.” Montaño, 375
F.3d at 600 (quoting United States ex rel. Valders Stone &
Marble, Inc. v. C-Way Constr. Co., 909 F.2d 259, 262 (7th
Cir. 1990)). “We can review an unappealable order only if it
is so entwined with an appealable one that separate con-
sideration would involve sheer duplication of effort by the
parties and this court.” qad. inc. v. ALN Assocs., Inc., 974
F.2d 834, 836 (7th Cir. 1992) (quoting Patterson v. Portch,
853 F.2d 1399, 1403 (7th Cir. 1988)).
  The two orders at issue in this case are not so closely re-
lated that they satisfy this test. To the contrary, “[a] plethora
of courts have recognized a fundamental distinction in the
standards governing these two motions.” Washington, 184
F.3d at 657. A court considering a motion for judgment of
acquittal must view the evidence in the light most favorable
to the government, and only grant the motion if no rational
jury could find guilt beyond a reasonable doubt. Id. By
contrast, a court evaluating a motion for a new trial may
14                                  Nos. 03-2068 & 04-1377

weigh evidence, evaluate credibility, and grant the motion
if “the substantial rights of the defendant have been jeopar-
dized.” Kuzniar, 881 F.2d at 470. Because the standards
governing the two motions are distinct, we may not exercise
pendent appellate jurisdiction over defendant’s cross-
appeal.


                     III. Conclusion
  For the reasons stated herein, we find that the district
court abused its discretion in granting a new trial. We
therefore REVERSE the district court’s grant of a new trial
and REMAND for sentencing. We DISMISS the cross-appeal
for lack of jurisdiction.


A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—10-28-04
