¶1Maurice D. L. Fuller, Jr., San Francisco, Cal., for appellant.
¶2C. A. Muecke, U. S. Atty., James J. Brosnahan, Jr., Asst. Ü. S. Atty., Phoenix, Ariz., for appellee.
¶3Before MERRILL, BROWNING and DUNIWAY, Circuit Judges.
¶5Appellant has moved for leave to apply to the District Court for new trial on the ground of newly discovered evidence and, in the alternative, for leave to appeal to this court in forma pauperis.
¶6The procedure which this court prefers to follow in cases in which appellant desires to move for new trial on the ground of newly discovered evidence is pointed out in orders entered in Smith v. United States, 9 Cir., 294 F.2d 771, on August 31 and September 14, 1961. Motion for new trial should be filed in the District Court. Motion should then be made to this court to remand the matter to the District Court for its consideration of the motion for new trial. The District Court should then advise this court if it desires to entertain the motion for new trial. Upon receipt of advice from the District Court, this court will then entertain the motion to remand. This procedure has not been followed by the appellant in this case. *
¶7Motion for leave to proceed in forma pauperis should first be made to the District Court. No remand is necessary since the pendency of this appeal does not deprive the District Court from jurisdiction to entertain such an application. Application to the District Court has not been made.
¶8For the above reasons, the motion of appellant is denied.