24 F.2d 796 (2nd Cir. 1928), 275, Spirou v. United States

Docket Nº:275
Citation:24 F.2d 796
Case Date:March 12, 1928
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 796

24 F.2d 796 (2nd Cir. 1928)




No. 275

United States Court of Appeals, Second Circuit.

March 12, 1928

Henry Amerman, of New York City (J. Bradford Erb, of Chicago, Ill., of counsel), for plaintiff in error.

Charles H. Tuttle, U.S. Atty., of New York City (Alvin Mckinley Sylvester and Hubert T. Delany, Asst. U.S. Attys., both of New York City, of counsel), for the United States.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.


The defendants pleaded guilty to an indictment which charged Spirou and the several other defendants with violation of sections 37 and 215 of the United States Criminal Code (18 USCA §§ 88, 338). There were 15 counts, separately charging conspiracy to defraud the United States, conspiracy to commit offenses against the United States, and unlawful use of the mails. On November 11, 1927, when the court was about to pass judgment and impose sentence, argument as to the length of the sentence having already been heard, Spirou asked leave to be represented by a different attorney, and to withdraw his plea of guilty and plead not guilty. The court stated that the substitution of attorneys might be made in the regular way, and that he would thereafter hear counsel on his motion to withdraw the plea of guilty. A motion in arrest of judgment was made and denied.

Page 797

The court then proceeded to impose a sentence of six years' imprisonment, and granted a stay of execution till November 29th.

Thereafter the substitution of attorneys was made, the motion on the plea was heard, and an order denying leave to change defendant's plea was entered. This order was dated November 28th, but was not entered until November 30th. In the meantime Spirou had petitioned for a writ of error, the writ had been granted, citation issued, and all were filed in the District Court on November 28th. The lodgment of the writ in the clerk's office removed the cause, and deprived the District Court of any further jurisdiction. The order entered November 30th, denying the motion, is, therefore, not before us for review. It may be doubted whether such an order is ever reviewable (Whitworth v. United States, 114 F. 302 (C.C.A. 8); Billingsley v. United States, 249 F. 331 (C.C.A. 9)), but, if it be, and the order were properly before us, we should not hesitate to approve the discretion exercised by the court...

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