Rakes v. United States
| Decision Date | 13 October 1947 |
| Docket Number | No. 5614-5620.,5614-5620. |
| Parties | RAKES v. UNITED STATES, and six other cases. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Stuart B. Campbell, of Wytheville, W. R. Ashburn, of Norfolk, Va., R. H. McNeill, of Washington, D. C., J. B. Morgan, of Leesburg, Va., W. R. Allcott, of Richmond, Va., C. Carter Lee, of Rocky Mount, Va., and Leith S. Bremner and Robert Lewis Young, both of Richmond, Va., for appellants.
Harry H. Holt, Jr., U. S. Atty., of Hampton, Va., and George R. Humrickhouse, Asst. U. S. Atty., of Richmond, Va., for appellee.
Before PARKER, SOPER and DOBIE, Circuit Judges.
This is an appeal from a judgment and sentence for violation of the provisions of the National Banking Act, 12 U.S.C.A. § 21 et seq. Pending the appeal a motion was made by defendants to remand the cause to the District Court in order that that court might pass on a motion for new trial made on the ground that evidence had been discovered since the trial that an attempt had been made to bribe one of the jurors. We denied the motion to remand but in the order denying it pointed out that motion might be made before the trial judge under Federal Rules of Criminal Procedure, rule 33, 18 U.S.C.A. following section 687, pending the appeal but might not be granted except upon remand. Defendants accordingly filed such a motion before Hon. J. Waties Waring, the Judge who tried the case, and in addition filed an affidavit asking that he disqualify himself from the hearing of the motion. Judge Waring withdrew from the hearing of the motion and, with the consent of all parties but without certification or order by the Senior Circuit Judge, it was heard before Hon. Sterling Hutcheson, a Judge of the District present at the time. Judge Hutcheson has filed an order and memorandum opinion, 74 F.Supp. 645, finding that a new trial should be granted on defendants' motion, and the matter is again before us on motion to remand in order that the motion for new trial may be granted by Judge Hutcheson.
The purpose of the provision of Rule 33, which permits the hearing, but not the granting of the motion, in a case in which an appeal has been taken, is to expedite proceedings. Our object in pointing out the procedure was to avoid delay. Now that the procedure has been availed of and the District Judge has heard the motion and found that it should be granted, the orderly course is to remand the cause in order that the motion may be granted unless we are prepared...
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United States v. Cronic, 82-660
...(per curiam), later proceeding, 193 F.2d 889, cert. denied, 343 U.S. 934, 72 S.Ct. 770, 96 L.Ed. 1342 (1952); Rakes v. United States, 163 F.2d 771, 772-773 (CA4 1947) (per curiam), later proceeding, 169 F.2d 739, cert. denied, 335 U.S. 826, 69 S.Ct. 51, 93 L.Ed. 380 (1948); 8A J. Moore, Moo......
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...his counsel, and counsel for the government was sufficient to perform, in effect, the office of such an order. See, Rakes v. United States, 4 Cir., 1947, 163 F.2d 771. Further, such conduct was sufficient to invest the judge below with that element of good faith required for invocation of t......
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...331 F.2d 145 (6th Cir. 1964) (2 cases); United States v. Minkoff, 181 F.2d 538 (2d Cir. 1950) (per curiam); Rakes v. United States, 163 F.2d 771 (4th Cir. 1947) (per curiam); 2 C. Wright, Federal Practice and Procedure § 557, at 534-35 ...
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...v. Frame, 454 F.2d 1136, 1138 (9th Cir. 1972); Richardson v. United States, 360 F.2d 366, 368 (5th Cir. 1966); Rakes v. United States, 163 F.2d 771, 772 (4th Cir. 1947). It is only after a trial judge has heard a motion for a new trial and decided to grant it that he must seek remand. In ef......