U.S. v. Blanton
| Decision Date | 10 January 1983 |
| Docket Number | No. 82-5091,82-5091 |
| Citation | 697 F.2d 146 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Leonard Ray BLANTON, Clyde Edward Hood, Jr. and James M. Allen, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John S. McLellan, Kingsport, Tenn., for Blanton.
Alfred Knight, Robert Delaney, William R. Willis, Nashville, Tenn., for Hood.
Tyree B. Harris, Nashville, Tenn., for Allen.
Joe B. Brown, U.S. Atty., Aleta G. Arthur, John Philip Williams, Nashville, Tenn., for plaintiff-appellee.
Before ENGEL and KEITH, Circuit Judges; and GIBSON, * Senior Circuit Judge.
Defendants appeal the district court's order denying their request that it certify that it is inclined to grant their motion for a new trial based on newly discovered evidence. We conclude that the district court's order denying certification of an inclination to grant that motion for a new trial is an unappealable order.
Defendants moved for a new trial on the basis of newly discovered evidence pursuant to Fed.R.Crim.P. 33. The notices of appeal from the judgments of conviction had already been filed, so the district court did not have power to grant the motion absent a remand. Fed.R.Crim.P. 33. Hence, the defendants moved the district court pursuant to the procedure delineated in United States v. Phillips, 558 F.2d 363 (6th Cir.1977). That case allows a district court to certify to the appellate court that it is inclined to grant the motion for a new trial so that the appellate court can consider a remand to the district court. Id. at 363.
This circuit allows considerable discretion in the district judge in ruling on such motions. While under Rule 33, he may not grant a motion for new trial without a remand, he nevertheless has three choices. First, if he deems it likely that he would grant a new trial he may so certify. Id. The court of appeals can then, in its good judgment, determine whether the ends of justice would be most efficiently served by proceeding first to determination of the merits of the appeal as it then stands, or whether to terminate the appeal altogether and remand for a new trial. 1 Second, if the trial judge is satisfied that he would not grant the motion for new trial in any event, he may deny the motion outright. In that case, an immediate appeal may be taken and consolidated with the pending appeal. United States v. Lee, 428 F.2d 917 (6th Cir.1970), cert. denied, 404 U.S. 1017, 92 S.Ct. 679, 30 L.Ed.2d 665 (1972); Ashe v. United States, 288 F.2d 725, 733 (6th Cir.1961). As a third option, and we believe the one which was exercised here, the trial judge may merely decline to certify, i.e., decline to rule with finality on the motion until after the appeal is concluded. Since this is not a final order and hence is not appealable, the motion may be reasserted, under Rule 33, when the case returns from the court of appeals.
There are many circumstances in which this third option may in fact be the desired course. For example, the trial judge may wish to know the outcome of the pending appeal before ruling with finality since the resulting appellate decision, especially if it deals with the admissibility and weight of the evidence, may well affect his judgment, if it does not moot it altogether. Second, it may simply be more efficient, from the standpoint of judicial economy, to permit the appeal to come to a decision, especially where it may have been pending for some time before the motion was filed. Finally, the district court may find it difficult to decide the motion without the trial record, which will already be in the court of appeals in most cases. 2
In summary, the procedure for filing a motion for a new trial based on newly discovered evidence while an appeal is pending is for the appellant to first file the motion in the district court. 3 If the district court is inclined to grant the motion, it may so certify, and the appellant should move the appellate court to remand the case to the district court so that the district court can grant the motion. If the court believes the motion should be denied, it may issue an order denying the...
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