Summary
directing "that consideration and decision of this appeal be held in abeyance until the trial judge certifies to this Court whether he will grant the motion for a new trial or deny the same" where counsel had orally informed court of Rule 33 motion
Summary of this case from U.S. v. QuinnOpinion
No. 15507.
May 1, 1964.
Eugene D. Smith, Cincinnati, Ohio, for appellant.
Arnold Morelli, First Asst. U.S. Atty., Cincinnati, Ohio, for appellee, Joseph P. Kinneary, U.S. Atty., Cincinnati, Ohio, on the brief.
Before MILLER, CECIL and EDWARDS, Circuit Judges.
ORDER.
This cause is pending before this Court on appeal from a judgment of conviction in the United States District Court for the Southern District of Ohio.
Counsel for appellant, Marvin Smith, contends that the Government informer, who was a principal witness against the appellant, was unworthy of belief and that his testimony should be completely disregarded by reason of certain benefits which it is claimed passed from the government to the witness in exchange for his testimony. It is alleged that this information did not come to the attention of counsel for the appellant herein until after this appeal was perfected. No action was taken to bring the matter before the district judge. These claims cannot be considered by this Court on this appeal. The proper procedure for the presentation of the questions raised by these claims is by motion in the District Court for a new trial on the ground of newly discovered evidence.
By reason of the claims of the appellant, as above stated, said appellant is given leave to file a motion for new trial in the District Court within two weeks from the date of this order.
It is hereby ordered that consideration and decision of this appeal be held in abeyance pending the filing of a motion for a new trial in the District Court, and, if such motion is filed, it is further ordered that consideration and decision of the appeal be continued until the trial judge certifies to this Court whether he will grant the motion for a new trial or deny the same if the case is remanded to the District Court for a ruling on the motion. Rule 33, Federal Rules of Criminal Procedure; United States v. West, 170 F. Supp. 200 (N.D. Ohio), aff'd, 274 F.2d 885, C.A.6, cert. den. Haug v. United States, 365 U.S. 811, 819, 81 S.Ct. 688, 701, 5 L.Ed.2d 691, 697; Zamloch v. United States, 187 F.2d 854, C.A.9, cert. den., 343 U.S. 934, 72 S. Ct. 770, 96 L.Ed. 1342; Paddock v. United States, 302 F.2d 514, C.A.9; Metcalf v. United States, 195 F.2d 213, C.A.6; Levinson v. United States, 32 F.2d 449, C.A.6; Hamel v. United States, 135 F.2d 969, C.A.6.