     Case: 08-60739     Document: 00511092979          Page: 1    Date Filed: 04/27/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            April 27, 2010

                                     No. 08-60739                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

JAMES EDWARD FRYE, also known as Sealed Defendant 2,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 4:01-CR-8-2


Before SMITH, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
        James Edward Frye, federal prisoner # 98362-024, appeals the denial of
his motion for a new trial under Federal Rule of Criminal Procedure 33, which
the district court denied as untimely. Frye was convicted of one count each of
conspiracy, carjacking resulting in death, use of a firearm during and in relation
to a crime of violence, and interstate transportation of a stolen vehicle. The




        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 08-60739   Document: 00511092979      Page: 2   Date Filed: 04/27/2010

                                  No. 08-60739

verdict was affirmed on direct appeal. United States v. Frye, 489 F.3d 201 (5th
Cir. 2007).
      Frye’s motion for a new trial was based on allegedly newly discovered
evidence consisting of an affidavit from his co-defendant, Billy Dewayne Cooper,
who had invoked his Fifth Amendment right not to testify at Frye’s trial. Rule
33 states, “Any motion for a new trial grounded on newly discovered evidence
must be filed within 3 years after the verdict or finding of guilty.” The jury
returned its verdict on February 3, 2005. Frye placed his motion in the prison
mail system on February 7, 2008, more than three years after the verdict. The
district court thus denied the motion as untimely.       In a motion for recon-
sideration, Frye argued that the clerk’s office had led him to believe that the
verdict had been returned on February 18, causing him to miss the deadline.
The district court denied the motion for reconsideration. Frye timely appealed.
He subsequently filed a motion asking this court to remand the case to the
district court for consideration of additional materials he has filed there.
      Frye’s pro se argument that he had been misled as to the date of the
verdict could have been liberally construed as seeking an extension of time due
to excusable neglect under Federal Rule of Criminal Procedure 45(b)(1)(B), or as
seeking equitable tolling. But even if the district court had granted Frye an
extension to February 18, 2008, and thus rendered the Rule 33 motion timely,
it would nonetheless have been appropriate to deny the motion on the merits.
“[T]his court ‘may affirm the district court’s judgment on any basis supported by
the record.’” United States v. Le, 512 F.3d 128, 134 (5th Cir. 2007) (quoting
United States v. Clay, 408 F.3d 214, 218 n.7 (5th Cir. 2005)).
      Although it was based on “newly discovered evidence” in the form of
Cooper’s affidavit, Frye’s Rule 33 motion for a new trial was not accompanied by
that affidavit. Instead, it was accompanied by a motion for an extension of time
to file the affidavit. That motion did not contain any specific reason why Frye

                                        2
   Case: 08-60739   Document: 00511092979     Page: 3    Date Filed: 04/27/2010

                                 No. 08-60739

could not have filed Cooper’s affidavit earlier. The district court therefore did
not abuse its discretion in denying the motion for an extension of time. Frye
eventually filed the affidavit on April 1, 2008, which was unquestionably more
than three years after the verdict had been rendered. Since the affidavit was not
timely filed, Frye’s motion for a new trial was not supported by any newly
discovered evidence. The court therefore did not err in denying the motion.
      The district court’s denial of Frye’s Rule 33 motion for a new trial is
AFFIRMED. Frye’s motion for remand is DENIED.




                                       3
