
    UNITED STATES of America, Plaintiff-Appellee, v. Clarence HENDRIX, Defendant-Appellant.
    No. 07-2869.
    United States Court of Appeals, Seventh Circuit.
    Submitted May 29, 2008.
    
    Decided June 2, 2008.
    Matthew Getter, Office of the United States Attorney, Chicago, IL, for PlaintiffAppellee.
    Daniel S. Alexander, Chicago, IL, for Defendant-Appellant.
    Before FRANK H. EASTERBROOK, Chief Judge, KENNETH F. RIPPLE, Circuit Judge and DANIEL A. MANION, Circuit Judge.
    
      
       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).
    
   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 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.  