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331 F.2d 145

Docket No. 15507.

United States v. Smith

Sixth Circuit Court of Appeals

May 1, 1964.

Sixth Circuit Court of Appeals · decided 1964-05-01

4 counsel of record

Key passage — most relied on by later courts

““By necessary implication, Rule 33 of Federal Rules of Criminal Procedure con fers jurisdiction upon the trial court to hear a motion for a new trial on the ground of newly discovered evidence while the case is on appeal from the judgment of conviction. * * * Thus, the trial court had jurisdiction to hear the motion. With respect to the power to act upon the motion, such rule expressly precludes the granting of such a motion absent remand by the appellate court;”

quoted by 1 later decision, including State v. Noriega

“that consideration and decision of this appeal be held in abeyance until the trial judge certifies to this Court whether he will grant the motion for a new trial or deny the same”

quoted by 1 later decision, including United States v. Quinn

Relies on Killian v. United States · Preston v. Texas · Metcalf v. United States

Good law ✅— No negative treatment on recordhow we know

Decided 1964-05-01

How this case has been cited

Cited by 13 later decisions — most recently January 2007

9 federal appellate · 2 district · 1 state decisions

4019641970198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Hopkins, Hopkins, Wilson & Morrissey, on the brief, Cincinnati, Ohio, Scott H. Ray, Jr., Lebanon, Ohio, of counsel, for appellant.

Arnold Morelli, First Asst. U. S. Atty., Cincinnati, Ohio, for appellee, Joseph P. Kinneary, U. S. Atty., Cincinnati, Ohio, on the brief.

Before MILLER, CECIL and EDWARDS, Circuit Judges.

ORDER.

¶1

This cause is pending before this Court on appeal from a judgment of conviction in the United States District Court for the Southern District of Ohio.

¶2

The Court having been orally advised that subsequent to filing a notice of appeal in the District Court, counsel for the appellant filed in the trial court a motion for new trial on the ground of newly discovered evidence.

¶3

It is hereby ordered that consideration and decision of this appeal be held in abeyance until the trial judge certifies to this Court whether he will grant the motion for a new trial or deny the same if the case is remanded to the District Court for a ruling on the motion. Rule 33, Federal Rules of Criminal Procedure; United States v. West, 170 F.Supp. 200 (N.D. Ohio), aff'd, 274 F.2d 885, C.A.6, cert. den. Haug v. United States, 365 U.S. 811, 819, 81 S.Ct. 688, 701, 5 L.Ed.2d 691, 697; Zamloch v. United States, 187 F.2d 854, C.A.9, cert. den., 343 U.S. 934, 72 S.Ct. 770, 96 L.Ed. 1342; Paddock v. United States, 302 F.2d 514, C.A.9; Metcalf v. United States, 195 F.2d 213, C.A.6; Levinson v. United States, 32 F.2d 449, C.A. 6; Hamel v. United States, 135 F.2d 969, C.A.6.

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