Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 CR 946-James B. Zagel, Judge.
The opinion of the court was delivered by: Flaum, Chief Judge.
SUBMITTED DECEMBER 27, 2005
Before FLAUM, Chief Judge, andBAUER and POSNER, Circuit Judges.
Ivan Eberhart was convicted by a jury of conspiring to distribute cocaine in violation of 21 U.S.C. § 846 and acquitted of distributing cocaine in violation of 21 U.S.C. § 841(a)(1). He subsequently moved for a new trial within the time limits of Federal Rule of Criminal Procedure 33. That motion alleged one error on which Eberhart believed a new trial should be granted. In a supplemental memorandum, filed after the Rule 33 deadline, Eberhart alleged two additional errors that he believed entitled him to a new trial. The government did not object to the timeliness of these two additional grounds. The district court granted the motion for a new trial based on all three grounds. On appeal, the government argued that the district court lacked jurisdiction to consider the two grounds raised in the supplemental memorandum, since Rule 33's time limits had expired at the time that memorandum was filed. We agreed. United States v. Eberhart, 388 F.3d 1043, 1049-50 (7th Cir. 2004). The Supreme Court granted certiorari, and held that Rule 33's time requirements are non-jurisdictional claim processing rules, and may be forfeited if not properly contested in the district court. Eberhart v. United States, 546 U.S. ___, 126 S.Ct. 403 (2005) (per curiam). The Court remanded the case so that we might consider the government's appeal with the knowledge that the district court had jurisdiction to review all three claims absent a government objection.
We have considered all three grounds for a new trial that Eberhart proffered and find that none, either alone or in combination, provided a sufficient basis for the district court to grant a new trial. Accordingly, we reverse the district court's decision to grant a new trial.
What follows are the facts of this case that are relevant to our holding today. A more complete version of the facts may be found in our original panel decision, United States v. Eberhart, 388 F.3d 1043 (7th Cir. 2004), rev'd, 126 S.Ct. 403 (2005) (hereinafter Eberhart I).
On Dec. 16, 1998, Drug Enforcement Administration ("DEA") Task Force Officer Daniel Foley and DEA Agent Robert Glynn arrested Charles Bolden for distributing cocaine. After being arrested, Bolden agreed to help the DEA apprehend his drug source, whom he identified as "E." Officer Foley and Agent Glynn directed Bolden to telephone his source, order two kilograms of cocaine, and attempt to arrange an in-person meeting. Bolden then called Eberhart.
This phone conversation, like many others between the two, was recorded.
After several phone calls between Bolden and Eberhart, the two agreed to meet "where [they] met last time." As Eberhart was leaving this meeting, DEA agents arrested him. Although the agents did not discover drugs in Eberhart's possession, Eberhart confessed that he had been distributing between twenty and forty kilograms of cocaine per month, and that Bolden was one of his customers. Eberhart also described his source of drugs to the agents as a man named "Tommy." "Tommy" was never apprehended.
Eberhart was eventually charged and tried for conspiring to distribute cocaine and distributing cocaine. During the course of the trial, transcripts of phone calls between Bolden and Eberhart were introduced into evidence. The jury, however, was instructed that the transcripts were merely aids in interpreting the contents of the tape. Additionally, the district court, over defense counsel's objection, allowed the DEA agents to testify that Bolden had told them that his supplier's name was "E," and that the agents then instructed Bolden to call "E." The jury was instructed that this information was only being introduced to show the course of the investigation, and not for the truth of the statement.
On April 3, 2003, a jury convicted Eberhart of conspiring to distribute cocaine, but acquitted him of the distribution charge. On May 15, 2002, Eberhart moved for judgment of acquittal or, in the alternative, a new trial. Eberhart filed a supplemental memorandum in support of this motion on Oct. 30, 2002.
Although the original motion was timely, the October supplement was outside of the time limits set forth in Federal Rule of Criminal Procedure 33 for motions for a new trial. In his original motion, Eberhart stated only one ground for a new trial: that transcripts introduced into evidence were inaccurate. In the supplement, he raised two additional grounds: (1) that agents were improperly allowed to testify that Bolden identified his supplier as "E" and (2) that the "buyer-seller" instruction had not been given to the jury. The government never objected to these two grounds' untimeliness.
The district court denied the motion for acquittal, but granted the motion for a new trial. Although the court acknowledged that no one of the claimed errors, or even any pair of them, would justify a new trial, the court ruled ...