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UNITED STATES v. ROTH

No. 47, Docket 25926.

286 F.2d 635 (1961)

UNITED STATES of America, Appellee, v. Samuel ROTH, Appellant.

United States Court of Appeals Second Circuit.

Decided January 26, 1961.

Attorney(s) appearing for the Case

Samuel Roth, New York City, pro se.

Alfred Donati, Jr., Asst. U. S. Atty., Southern Dist. of New York, New York City, for appellee.

Before HINCKS, WATERMAN and MOORE, Circuit Judges.

PER CURIAM.

In the light of the facts set forth in Roth's motion verified December 27, 1960, and the reply letter of the United States Attorney dated January 5, 1961, our order of November 23, 1960 in which we dismissed Roth's appeal on the ground of mootness, is hereby vacated.

Coming then to the merits of Roth's present appeal, we agree with Judge Cashin that the facts set forth in the moving papers below, as distinguished from assertions of conclusion or suspicion, are insufficient to impeach the original conviction or to warrant a new trial. Accordingly, whether the motion below be deemed one brought under 28 U.S.C. § 2255 or one in the nature of a writ of coram nobis, its denial by the order below is

Affirmed.

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