Bruno v. United States, 10260
| Decision Date | 23 January 1950 |
| Docket Number | No. 10260,10261.,10260 |
| Citation | 86 US App. DC 118,180 F.2d 393 |
| Parties | BRUNO v. UNITED STATES. SKEENS v. UNITED STATES. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Joseph M. Howard, Assistant United States Attorney, Washington, D. C., with whom Messrs. George Morris Fay, United States Attorney, and Arthur J. McLaughlin, Assistant United States Attorney, Washington, D. C., were on the brief, for appellee. Mr. L. Clark Ewing, Assistant United States Attorney, Washington, D. C., also entered an appearance for appellee.
Before EDGERTON, WILBUR K. MILLER and PROCTOR, Circuit Judges.
The appellants, John J. Bruno and James T. Skeens, were indicted on March 7, 1949, by a grand jury of the District of Columbia for assault with a dangerous weapon and for carrying an unlicensed pistol. According to an order entered on April 11, 1949, in the United States District Court, the appellants appeared that day in person and by attorney and, with the approval of the court and the consent of the attorney for the United States, waived the right to a trial by jury and submitted themselves to trial by the court. Thereupon Judge Henry A. Schweinhaut, before whom the appellants appeared, after hearing the evidence, found Bruno guilty of simple assault and carrying an unlicensed pistol and found Skeens guilty as charged. Their sentences, pronounced on April 29, 1949, were filed on May 2, 1949. Notices of appeal to this court were filed on May 7.
Thereafter the appellants obtained new counsel who filed in the District Court on May 16, 1949, a motion to vacate and set aside the judgment and to award a new trial before a jury, on the ground there had been no valid waiver of the right to a jury trial. This motion came on for hearing on May 24, 1949, before Judge Schweinhaut, who heard evidence thereon until it became apparent that it might be necessary for him to testify; whereupon he certified the motion to Chief Judge Bolitha J. Laws of the District Court.
The motion was fully heard on June 23, 1949, by Judge Laws, who filed the following memorandum on June 28:
The appellants did not appeal from the order, entered pursuant to the foregoing memorandum, which denied the motion to vacate their sentences. They were content simply to add to the transcript of the proceeding in which they were convicted, and with respect to which they had already appealed, a transcript of the proceeding had in connection with the motion to vacate the sentences. Thus the appellants assumed that their motion to vacate was a part of the original criminal proceeding. Whether this assumption was correct is the question before us.
A motion for a new trial in a criminal case under Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., is a part of the original proceeding, as is the district court's ruling thereon. But such a motion, unless it be on the ground of newly discovered evidence, must be made within five days after verdict or finding of guilty or within such further time as the court may fix during the five-day period.
Appellants' motion to vacate which is now under consideration was not on the ground of newly discovered evidence. It was not made within five days after the finding of guilty, and the District Court did not enlarge the time during the five-day period. The motion to vacate, therefore, was not a motion for a new trial under Rule 33. It was made too late to be received as such a motion and indeed did not purport to be such.
The motion to vacate was permitted, however, under a Code provision (28 U.S. C.A. § 2255), which is, in pertinent part, as follows:
To continue reading
Request your trial
-
Hayman v. United States
...in its nature. In this we are in agreement with the decision of the Court of Appeals of the District of Columbia, Bruno v. United States, 86 U.S.App.D.C. 118, 180 F.2d 393, 395. A civil subpoena would be valueless to the pauper Hayman to bring either himself or his witnesses to the district......
-
United States v. Anthony
...33, 45(b), United States v. Smith, 1947, 331 U.S. 469, at pages 475, 476, 67 S. Ct. 1330, 91 L.Ed. 1610; Bruno v. United States, 1950, 86 U.S.App.D.C. 118, 180 F.2d 393, at page 394; Marion v. United States, 9 Cir., 1948, 171 F.2d 185; United States v. Bloom, 2 Cir., 1947, 164 F.2d 556; Luj......
-
Green v. United States
...6 of § 2255 itself so provides. See F.R.C.P., Rule 81(a) (2), 28 U.S. C.A.; Mercado v. United States, supra; Bruno v. United States, 86 U.S.App.D.C. 118, 180 F.2d 393, 395. Perhaps the Rules of Civil Procedure apply to other aspects of the proceedings. See Moore's Federal Practice, 2nd ed.,......
-
U.S. v. Shaffer
...assertion ignores the fact that these two remedies are separate and distinct means of attacking a judgment. Bruno v. United States, 180 F.2d 393, 394-95 (D.C.Cir.1950); United States v. Ostrer, 422 F.Supp. 93, 95-6 (S.D.N.Y.1976). Consequently, we reject the government's argument that the d......