IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50576 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NICKOLAS ANTONIOUS MELLS,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. W-97-CR-127-1 - - - - - - - - - - February 14, 2001

Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Nickolas Antonious Mells, federal prisoner # 82279-080,

appeals the district court’s denial of his March 14, 2000, motion

for a new trial pursuant to Fed. R. Crim. P. 33. Mells argues

that he is entitled to a new trial based on the Government’s

(1) nondisclosure of Agent Mike Lamberth’s interview notes;

(2) nondisclosure of a cooperation agreement valued at $227,504;

and (3) nondisclosure of Agent Lamberth’s grand jury testimony.

In his Rule 33 motion, Mells raised only the issue whether

he is entitled to a new trial based on the Government’s failure

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-50576 -2-

to provide Agent Lamberth’s interview notes as part of discovery.

Mells’ contention is not based on newly discovered evidence;

therefore, to be timely, he would have had to file his Rule 33

motion within seven days of the guilty verdict. See United

States v. Medina,

(5th Cir. 1997); United

States v. Uglade,

(5th Cir. 1988). Mells was

found guilty on June 26, 1998. He did not file his Rule 33

motion until March 14, 2000. Consequently, Mells’ motion was

untimely, and the district court lacked jurisdiction to rule on

it. See United States v. Brown,

(5th Cir.

1979).

The remaining two issues raised on appeal were not included

in Mells’ March 14, 2000, motion; therefore, this court will not

consider them. See Leverette v. Louisville Ladder Co.,

(5th Cir. 1999)(explaining that this court will not

allow a party to raise an issue for the first time on appeal

merely because it might prevail on a different theory), cert.

denied,

(2000).

The district court’s denial of Mells’ Rule 33 motion is

AFFIRMED. See Bickford v. Int’l Speedway Corp.,

,

1031 (5th Cir. 1981)(this court may affirm on grounds different

from those employed by the district court). Mells’ motion to

supplement the record is DENIED.