Writ of Certiorari Granted October 28, 1946. See 67 S.Ct. 125.
MARIS, Circuit Judge.
The petitioner, the United States of America, prays that a writ of mandamus issue directed to the United States District Court for the Middle District of Pennsylvania, the judges of that court and the Honorable William F. Smith, a district judge specially assigned to that court, commanding them to revoke and set aside an order made by Judge Smith on April 8, 1946, wherein he ordered that a judgment theretofore entered in the case of United States v. John Memolo, Criminal Docket No. 11319, March Term 1945, be vacated and the verdict set aside, and that a new trial be granted the defendant; commanding them to reinstate the judgment entered in said case, which judgment was affirmed on January 22, 1946, by this court (152 F.2d 759); and commanding them to proceed with the execution of the judgment and sentence as required by the mandate of this court. The petitioner also prays for the issuance of a writ of prohibition prohibiting them from proceeding further in the case of United States v. Memolo and from exercising jurisdiction under the order of Judge Smith entered April 8, 1946, except as necessary to carry out the mandate of this court.
The following facts are relied upon in support of the petition. On May 23, 1945, a trial jury returned a verdict of guilty against John Memolo upon an indictment for wilfully attempting to evade and defeat his federal income taxes. On May 26, 1945, Memolo filed a motion for a new trial. The motion for a new trial was denied; judgment was entered and sentence imposed on June 19, 1945 by the Honorable William F. Smith, the trial judge. An appeal to this court followed. On January 22, 1946, the judgment of conviction was affirmed by this court.
The defendant was taken into custody and on April 8, 1946 was transferred to the Federal Penitentiary at Lewisburg, Pennsylvania. On April 9, 1946, the clerk of the district court received an order from Judge Smith, dated April 8, 1946, in which it was stated that the court having reconsidered the grounds urged in support of the motion it appeared that in the interest of justice a new trial should be granted the defendant. The order directed that the judgment be vacated, the verdict be set aside and a new trial be granted. The warden thereupon relinquished custody of Memolo to the district court which released him on bail. Thereafter the United States petitioned for writs of mandamus and prohibition, Judge Smith filed an answer on his own behalf and on behalf of the District Court for the Middle District of Pennsylvania and the defendant, Memolo, intervened as an interested party.
Before considering the merits of the petition we notice the intervenor's contention that this court has no power to issue the writs requested. The contention cannot be sustained, however. Section 262 of the Judicial Code, 28 U.S.C.A. § 377, provides that:
"* * * The Supreme Court, the circuit courts of appeals, and the district courts
The petition sets out facts which the petitioner contends prove conclusively that the district court failed to carry out the mandate of this court. If this be so Section 262 gives us power to issue the writs in aid of our appellate jurisdiction.
We may, therefore, turn to the primary question for our determination which is whether under the circumstances of this case the trial judge had the power to reconsider his denial of Memolo's motion for a new trial and thereupon to grant the motion. We are not concerned with the question as to the time within which Memolo could have filed his motion for a new trial since he did in fact file that motion within three days after the jury returned its verdict. In this connection it will be noted that all the time limitations which are contained in Criminal Procedure Rule 33,
Neither the federal statutes
"The granting of a motion for a new trial is a matter of sound judicial discretion. But there seems to be no good reason for holding that the power of a judge of the Superior Court with respect to a motion for a new trial in a criminal case is ended when he grants or denies it. If it should be said that once having denied the motion, he could not vacate his order and grant the motion for sufficient cause, it seems apparent that the administration of justice might be impeded, if it did not, in truth, fail."
In State v. Luft, 1919, 104 Kan. 353, 179 P. 553, 555, the state supreme court sustained an order of the trial court setting
"The plenary power of the court during the term over its orders and judgments is too well established to need buttressing by authority. The quality of finalty is always conditioned by the possible exercise of this power, and the court may freely return to the proceedings, and correct, revise, amend, or annul them."
Among the cases upholding the power of the trial court in a criminal case to reconsider its ruling upon a motion for a new trial are: Com. v. Miller, 1838, 6 Dana, Ky., 315; Gonzales v. State, 1897, 38 Tex. Cr.R. 62, 41 S.W. 605; Johnson v. State, 1908, 1 Okl.Cr. 321, 97 P. 1059, 18 Ann.Cas. 300; People v. Cimino, 1941, 163 App.Div. 217, 147 N.Y.S. 1079; Hefton v. State, 1934, 206 Ind. 663, 190 N.E. 847; Dimmel v. State, 1935, 128 Neb. 191, 258 N.W. 271; and People v. Beath, 1936, 277 Mich. 473, 269 N.W. 238. Contra: State v. Duncan, 1918, 101 Wn. 542, 172 P. 915; People v. Paysen, 1932, 123 Cal.App. 396, 11 P.2d 431; and State v. Lubosky, 1938, 59 R.I. 493, 196 A. 395.
We are in accord with the view that a trial judge, to whose discretion is entrusted the duty of determining whether a new trial should be granted, should be free to change his ruling if upon further and more mature deliberation he concludes that justice so requires. Certainly the administration of the criminal law is not directed toward the retention of a conviction at the cost of a miscarriage of justice. When in the deliberate and mature opinion of the judge who presided at the trial of the case the proceedings at the trial or the atmosphere which surrounded it were such as to require correction, it is a shocking suggestion that such correction becomes impossible because the judge's first reaction was different.
The petitioner calls attention to the fact that the Rules of Criminal Procedure do not contain any provision such as Rule 59(d) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which expressly provides that a court of its own initiative may order a new trial within ten days after judgment for any reason for which it might have granted a new trial on motion of a party. It seeks to draw an inference therefrom that the Rules of Criminal Procedure were not meant to confer upon the court such power in criminal cases. This may well be. We are, however, not called upon in this case to consider that question since, as we have seen, Memolo did file a motion for a new trial and the trial judge acted not upon his own initiative but upon a reconsideration of this motion.
The petitioner contends that the trial judge lost his authority to grant a new trial (except on the ground of newly discovered evidence) as soon as an appeal had been taken. It is of course true that when the record has been removed to the appellate court there is nothing before the trial judge upon which he can act. In this case, however, the trial judge took no action while the matter was pending upon appeal. It was not until our mandate went down to the district court that the trial judge made his order.
There remains for consideration the petitioner's final contention that the action of the trial judge is inconsistent with and prohibited by the mandate of this court. As we have seen, that mandate ordered and adjudged that the judgment of the district court be affirmed. An examination of the record filed upon Memolo's appeal to this court discloses that he urged as grounds for the reversal of the judgment the same errors which he urged in support of his motion for a new trial. Therefore, says the petitioner, when this court found no reversible error those issues had been decided adversely to the defendant and could not be reconsidered by the district court. For, the petitioner argues, if the trial judge is at liberty to set aside the decision of the appellate court by granting a new trial on issues already litigated, the trial judge is exercising appellate power.
We think the petitioner misconceives what was before us upon the appeal and what was adjudicated by us in our judgment affirming the judgment of the district court. We there examined the errors assigned and concluded that none required reversal. Among them were the following two assignments of error:
"57. The Court below abused its discretion in refusing to grant a new trial for the reason that right and justice require that defendant be granted a new trial on account of the many errors committed by the Trial Judge as above indicated in these assignments and also because of the very prejudicial manner in which the Trial Judge interfered with the examination and cross examination of witnesses and ridiculed and belittled counsel for the defendant and otherwise prejudicially affected defendant's case with the jury."
Ordinarily the granting or refusal of a new trial rests in the discretion of the trial judge.
We conclude that the petition for writs of mandamus and prohibition must be denied.
BIGGS, Circuit Judge (dissenting).
The majority's interpretation of Rule 33 of the Rules of Criminal Procedure would authorize the district court to grant a new trial to a convicted defendant at any time. The majority's view is so broad that even if, as here, a motion for a new trial had been first denied by the trial court, the judgment of conviction affirmed by this court, certiorari denied by the Supreme Court, and execution of judgment of sentence commenced, a new trial may none the less be granted in the discretion of the trial court.
I do not think that the rule goes so far. Conceding as is necessary that its first sentence
The result of the majority's interpretation of Rule 33 is attended by unusual consequences. Memolo did not move for reconsideration of his motion for a new trial. Judge Smith undertook the reconsideration sua sponte on the remand of the cause to the lower court. Memolo was tried, found guilty and was sentenced to 18 months imprisonment by a court having jurisdiction of his person and of the offense charged in the indictment. The indictment was sufficient and the evidence offered by the United States was ample to sustain a conviction. Memolo had a fair trial. The judgment of sentence had been carried into execution and Memolo had served about three days of his sentence when the order granting a new trial was filed, thus releasing him from the penitentiary. Under the circumstances there is little doubt but that Memolo might plead and prove former jeopardy if an attempt is made to try him a second time.
I conclude that Rule 33 was intended to allow a district court of the United States very wide discretion in granting a new trial perhaps at any point in time.
For these reasons I must dissent from the majority view. I am of the opinion that the writs of prohibition and mandamus should issue as prayed for.
I am authorized to state that Judge McLAUGHLIN concurs in the views expressed in this opinion.