                            NONPRECEDENTIAL DISPOSITION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.
