U.S. v. Fuentes-Lozano, FUENTES-LOZAN
Decision Date | 07 September 1978 |
Docket Number | No. 78-5202,R,FUENTES-LOZAN,78-5202 |
Citation | 580 F.2d 724 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rodosvaldooman Elias Perez, Antonio Rotella-Galindo, Raul Rodriguez-Pena, Issac Padron-Figueroa, and Daniel Rodriguez, Defendants-Appellants. |
Court | U.S. Court of Appeals — Fifth Circuit |
Henry Gonzalez, Miami, Fla., Frank K. Martin, Columbus, Ga., for defendants-appellants.
Wm. T. Moore, Jr., U. S. Atty., Augusta, Ga., Katherine L. Henry, Asst. U. S. Atty., Savannah, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Georgia.
Before GOLDBERG, AINSWORTH and RUBIN, Circuit Judges.
After being convicted of conspiracy to distribute and import marihuana in violation of 21 U.S.C. §§ 846 and 963, and while their appeal was pending, the defendant-appellants sought a "temporary remand" to allow the trial court to entertain a motion for a new trial. Considered as a motion to remand (without qualification), the motion is appropriate, and it is granted. However, it raises procedural issues that require discussion.
After conviction, new counsel was retained by appellants. In a motion filed in this court, this attorney states that he has interviewed each of the appellants and learned that only one of them, Issac Padron-Figueroa, understands English; Figueroa has only a minimum level of comprehension and neither reads nor speaks English; the other appellants neither read, speak, nor understand it. He alleges that, therefore, the appellants were not able to aid in the preparation of their defense in the trial court, and seeks a remand to the district court to enable it to entertain a motion for new trial and conduct a hearing thereon.
Rule 33, Federal Rules of Criminal Procedure, states in part:
A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. . . .
Thus, the rule prohibits the district court from granting a motion for a new trial after an appeal has been taken. Several circuits have held that the rule does not, however, prohibit the district courts from Entertaining the motion. If upon hearing the motion, the trial court is inclined to deny it, the court may do so; a separate appeal may then be taken from the denial of the motion and consolidated with the pending appeal. On the other hand, if the district court thinks that the motion should be granted, it should certify that determination to the appellate court in order that the appellate court may entertain a motion to remand. See, e. g., United States v. Ellison, 7 Cir. 1977, 557 F.2d 128, 132; United States v. Hays, 9 Cir. 1972, 454 F.2d 274, 275; Rakes v. United States, 4 Cir. 1947, 163 F.2d 771, 772-73, Cert. denied, 1948, 335 U.S. 826, 69 S.Ct. 51, 93 L.Ed. 380.
We have also approved of this procedure. United States v. Smith, 5 Cir. 1970, 433 F.2d 149, 152 ( ); United States v. Hersh, 5 Cir. 1969, 415 F.2d 835, 837 (); Richardson v. United States, 5 Cir. 1966, 360...
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...the motion may be denied but may not be granted without first having the case remanded by the court of appeals. United States v. Fuentes-Lozano, 580 F.2d 724 (5th Cir.1978); see generally C. Wright, Federal Practice and Procedure Sec. 557 For our part, a court of appeals is without authorit......
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...intention to grant the motion to the Court of Appeals, which could then entertain a motion to remand the case. See United States v. Fuentes-Lozano, 580 F.2d 724 (CA5 1978); United States v. Phillips, 558 F.2d 363 (CA6 1977) (per curiam); United States v. Ellison, 557 F.2d 128, 132 (CA7), ce......
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