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OCTOBER TERM, 2005 Syllabus

EBERHART v. UNITED STATES on petition for writ of certiorari to the united states court of appeals for the seventh circuit No. 04–9949. Decided October 31, 2005 On the last day available for post-trial motions after petitioner’s convic­ tion for conspiring to distribute cocaine, he moved for, inter alia, a new trial, raising a single ground for relief. Nearly six months later, he raised two additional grounds in a “supplemental memorandum.” The District Court cited all three grounds in granting his motion. On ap­ peal, the Government argued, for the ﬁrst time, that the District Court had abused its discretion because Federal Rule of Criminal Procedure 33(b)(2) provides that any new trial motion “grounded on any reason other than newly discovered evidence must be ﬁled within 7 days after the verdict or ﬁnding of guilty,” and Rule 45(b)(2) provides that courts “may not extend” that time “except as stated” in Rule 33 itself. The Seventh Circuit reversed, ﬁnding that the District Court had lacked jurisdiction to grant a new trial. It relied on United States v. Robin­ son, 361 U. S. 220, and United States v. Smith, 331 U. S. 469, but ex­ pressed some misgiving that those cases had been undermined by Kon­ trick v. Ryan, 540 U. S. 443, in which this Court construed Federal Rules of Bankruptcy Procedure paralleling Rules 33 and 45 to be nonjurisdic­ tional claim-processing rules that may be forfeited if not properly raised. Held: Because the time prescriptions in Rules 33 and 45 are nonjurisdic­ tional, claim-processing rules, the Government forfeited its untimeliness defense by failing to raise it until after the District Court had reached the merits. It is implausible that the Bankruptcy Rules construed in Kontrick can be claim-processing rules, while virtually identical Rules of Criminal Procedure can deprive federal courts of subject-matter ju­ risdiction. Nothing in Rules 33 and 45 or in this Court’s cases requires such a dissonance. This result does not require the Court to overrule Robinson or Smith, which did not address the effect of untimely argu­ ments in support of a motion for new trial when, as here, the district court is still considering post-trial motions and the case has not yet been appealed. Although its disposition was in error, the Seventh Circuit was prudent in adhering to its understanding of precedent while ex­ pressing grave doubts in light of Kontrick. Certiorari granted; 388 F. 3d 1043, reversed and remanded.