919 F. 2d 142 - United States v. Varellas

919 F2d 142 United States v. Varellas

919 F.2d 142

UNITED STATES of America, Plaintiff-Appellee,
v.
William John VARELLAS, Defendant-Appellant.

No. 90-1131.

United States Court of Appeals, Sixth Circuit.

Nov. 28, 1990.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before KENNEDY and MILBURN, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

ORDER

1

William John Varellas appeals pro se from the district court's denial of a motion for a new trial that he had filed under Fed.R.Crim.P. 33. His case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, the panel unanimously agrees that oral argument is not needed in this case. Fed.R.App.P. 34(a).

2

In 1986, Varellas was convicted of conspiracy to kidnap, interstate travel in aid of racketeering, and transportation of a firearm with the intent to commit a felony. In his motion, Varellas alleged that the government knowingly used perjured testimony at his trial. On December 29, 1989, the district court entered an order that denied the motion. It is from this order that Varellas now appeals.

3

The affidavit and attachments to Varellas's motion clearly alleged perjury on the part of two prosecution witnesses: Mark Leroy Whiting and Janet Marie Tibbitts. However, the district court's opinion does not mention Tibbitts in any way. A careful reading of the opinion indicates that the court's ruling does not reach Varellas's allegation that Tibbitts had lied at his trial.

4

Accordingly, Varellas's request for counsel is denied without prejudice, the judgment is vacated, and the case is remanded to the district court for further consideration. Rule 9(b)(6), Rules of the Sixth Circuit.