Brant v. United States

¶4PER CURIAM.

¶5Appellant’s motion in the district court, filed August 8, 1952, purported to be a motion for new trial based on newly discovered evidence. He had pleaded! guilty to an' indictment in two counts. charging violations of the bank robbery statute, Title 18, § 2113(a) and (d), United States Code, and had been sentenced to serve five years on Count 1 and seven years on Count 2 of the indictment, the sentences to run consecutively.: The judgment of conviction and sentence had been entered on March 1, 1950, more than two years before the filing of the motion. The district judge recog-' nized the two year limitation prescribed by Rule 33, Federal Rules of Criminal. Procedure, 18 U.S.C.,1 but considered the; motion on its merits because he said,. “The same rule provides that the court may grant a new trial to a defendant if, such is required in the interest of justice.”2 In a full opinion entered on November 4, 1952, the district judge expressed his reasons for denying the motion on its merits. Further, treating" the motion as brought also under Section 2255 of Title 28, United States Code,3*471and hence timely made, the district court held that there existed no ground for relief under that section. A further motion for new trial based on alleged additional newly discovered evidence was filed on November 21, 1952 and denied on March 2, 1953. Notice of appeal was filed April 29, 1953.

¶6The foregoing statement of the case results in its disposition here for the notice of appeal was filed too late to vest this Court with jurisdiction. Rule 37(a) (2), Federal Rules of Criminal Procedure; 4 Huff v. United States, 5 Cir., 192 F.2d 911, 913, 914; McIntosh v. United States, 5 Cir., 204 F.2d 545; United States v. Bloom, 2 Cir., 164 F.2d 556; Crow v. United States, 9 Cir., 203 F.2d 670; cf. Wallace v. United States, 8 Cir., 174 F.2d 112, 114, and cases there cited. The appeal is, therefore,

¶7Dismissed.