466 F2d 496 United States v. Driver

466 F.2d 496

UNITED STATES of America,
Plaintiff-Appellee,
v.
James Albert DRIVER, Defendant-Appellant.

No. 72-1719 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

July 26, 1972.
Rehearing Denied Aug. 22, 1972.

Mattox S. Hair, Jacksonville, Fla. (court-appointed, not under ACT), for defendant-appellant.

John L. Briggs, U.S. Atty., Rudy Hernandez, Asst. U.S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Before BELL, DYER and CLARK, Circuit Judges.

PER CURIAM:

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1

James Albert Driver was convicted of falsely and fraudulently completing, forging, or uttering various postal money orders in violation of 18 U.S.C.A. Sec. 500. Pending an appeal of his conviction, subsequently affirmed by this court, 462 F.2d 808 (5th Cir. 1972), Driver made a motion for new trial based on newly discovered evidence. Fed.R.Crim.P.33. From a denial of that motion, the present appeal is taken. The district judge quite properly considered the motion even though appeal of the conviction was pending, United States v. Smith, 433 F.2d 149, 152 (5th Cir. 1970), and finding no abuse of discretion in his denial thereof, we affirm. United States v. Stephenson, 448 F.2d 768 (5th Cir. 1971); United States v. Crane, 445 F.2d 509, 516 (5th Cir. 1971).

2

Affirmed.

*

Rule 18, 5th Cir.; see Isbell Enterprises Inc. v. Citizens Casualty Co. of N.Y., 431 F.2d 409, Part I (5th Cir. 1970)