NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 4, 2009*
Decided February 5, 2009
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 08‐2531
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 05 CR 30133
JAMES ROLLINS, SR., David R. Herndon,
Defendant‐Appellant. Chief Judge.
O R D E R
While he was represented by counsel, James Rollins filed successively a motion for a
new trial and a motion to reconsider. The district court struck both motions. He appeals
the district court’s orders and we affirm.
After a jury trial, Rollins was convicted in February 2007 of one count of distributing
cocaine, see 21 U.S.C. § 841, and sentenced to 97 months’ imprisonment. In March 2008,
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. FED. R.
APP. P. 34(a)(2).
No. 08‐2531 Page 2
while the direct appeal was pending, see United States v. Rollins, 544 F.3d 820 (7th Cir. 2008),
Rollins filed in the district court a pro se motion for a new trial. In the motion he argued,
among other things, that he had learned only recently of his right to override counsel’s
decision at trial not to call him to testify. In May 2008, the district court, citing United States
v. Gwiazdzinski, 141 F.3d 784 (7th Cir. 1998), struck the motion because Rollins filed it pro se
while represented by counsel. The district court added that the motion was untimely, “far
exceed[ing] the [seven day] filing deadline mandated under Rule 33.” The following
month, the court similarly struck Rollins’s motion to reconsider, which also had been filed
pro se while Rollins was still represented. In any event, the court also noted, a “motion for
reconsideration” is nowhere authorized under the Federal Rules of Criminal Procedure.
On appeal Rollins argues that the district court misinterpreted Gwiazdzinski, which,
he asserts, only prohibits a defendant from filing a pro se brief on appeal while he is
represented by counsel. The case says nothing, he asserts, to bar a pro se motion from being
filed in the district court. Rollins misreads Gwiazdzinski. That case also involved a
motion—a pro se motion to dismiss the indictment—that we declined to accept because the
defendant filed it while represented by counsel. See Gwiazdzinski, 141 F.3d at 787. Rollins
has no right to file a pro se brief or motion in any court while counsel represents him. See
Id.; Hayes v. Hawes, 921 F.2d 100, 101‐02 (7th Cir. 1990).
Rollins also argues that the district court improperly struck his motion for a new trial
because he discovered new evidence—which he describes as his realization that he had a
right to override counsel’s decision to prevent him from testifying. This argument is
frivolous. The discovery of a legal right does not equate with the discovery of new
evidence. Rollins may not have realized the legal significance of counsel’s actions until after
trial, but this information was within his knowledge at the time of trial, and thus was not
newly discovered. See United States v. Gootee, 34 F.3d 475, 479 (7th Cir. 1994); United States v.
Ellison, 557 F.2d 128, 133 (7th Cir. 1977).
AFFIRMED.