Summary
In Paddock and Smith we indicated a preference for the former procedure; but the latter procedure is in accord with Rule 33, see J. Moore, supra, and defendant's motion to certify was not improper.
Summary of this case from People of Territory of Guam v. InglettOpinion
Misc. No. 1169.
February 20, 1962.
Maurice D.L. Fuller, Jr., San Francisco, Cal., for appellant.
C.A. Muecke, U.S. Atty., James J. Brosnahan, Jr., Asst. U.S. Atty., Phoenix, Ariz., for appellee.
Before MERRILL, BROWNING and DUNIWAY, Circuit Judges.
Appellant 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.
The 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.
Motion 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.
For the above reasons, the motion of appellant is denied.