¶1Archibald Palmer, New York City, for defendant-appellant.
¶2Irving Younger, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty.' for the Southern Dist. of New York, New York City, on the brief), for appellee.
¶3Before LUMBARD, Chief Judge, and GOODRICH* and FRIENDLY, Circuit Judges.
¶6The facts alleged in the affidavits attached to defendant’s notice of motion for a new trial dated April 29, 1961, if believed by a jury as they might well be, would seriously undermine any basis for convicting defendant on Count 2 of the indictment for failure to report the $3,000 payment of July 19, 1954, see 282 F.2d at page 553. Recognizing the limitations upon the scope of our review of an order denying a new trial, United States v. Johnson, 1946, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562, we think nevertheless that under all the circumstances the denial here was erroneous. The new trial will, of course, include Count 1 of the indictment, the conviction on which was previously held to be subject to reversal for failure to furnish defendant with a copy of the grand jury minutes, 282 F.2d 551-552.
¶7The judgment of conviction and the order denying a new trial are reversed and a new trial ordered. The appeal from the order denying a reduction in sentence is thereby rendered moot and the appeal therefrom is dismissed.