Page:Ivan Eberhart v. United States.pdf/2

2 that had been published to the jury. Nearly six months later, petitioner filed a "supplemental memorandum" supporting his motion. Two additional grounds appeared in that filing—admission of potential hearsay testimony into evidence, and the District Court's failure to give a so-called "buyer-seller instruction" to the jury. 388 F. 3d, at 1047–1048. Rather than arguing, however, that the untimeliness of the supplemental memorandum barred the District Court from considering the issues it raised, the Government opposed it on the merits.

The District Court granted the motion for a new trial, citing all three grounds raised by petitioner. The judge concluded that "'none of these concerns standing alone or in pairing would cause me to grant a new trial,'" but that taken together, they "'persuade me that the interests of justice require a new trial.'" Id., at 1048. The judge also predicted that "'a new trial will quite likely lead to another conviction.'" Ibid.

On appeal, the Government pointed to the untimeliness of petitioner's supplemental memorandum, and argued that the District Court had abused its discretion in granting a new trial based on the arguments that the memorandum had raised. The Court of Appeals reversed the grant of a new trial, finding that the District Court had lacked jurisdiction to grant one. The Seventh Circuit observed, "The Supreme Court has held that Rule 45(b)'s prohibition on extensions of time is 'mandatory and jurisdictional.'" Id., at 1049 (quoting United States v. Robinson, 361 U. S. 220, 229 (1960), and citing United States v. Smith, 331 U. S. 469, 474, n. 2 (1947)). Based on Robinson and Smith, the Seventh Circuit explained, "'[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.'" 388 F. 3d, at 1049