United States v. Habib

Decision Date09 July 1934
Docket NumberNo. 487.,487.
Citation72 F.2d 271
PartiesUNITED STATES v. HABIB et al.
CourtU.S. Court of Appeals — Second Circuit

Martin Conboy, U. S. Atty., of New York City (Seymour Miller Klein and Francis A. Mahony, Asst. U. S. Attys., both of New York City, of counsel), for the United States.

Archibald Palmer, of New York City (Harry D. Glicksman, of New York City, on the brief), for appellees.

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

SWAN, Circuit Judge.

On December 1, 1933, the appellees were convicted of frauds against the Bankruptcy Act (11 USCA), and were sentenced to imprisonment in a penitentiary, Habib for two years and Mevorah for a year and a day. They forthwith appealed, and on December 5th their petition for appeal, the court's order of allowance, their assignments of error, and the citation on appeal were filed in the office of the clerk of the District Court. On December 28th they moved for a new trial. The motion was returnable January 2, 1934, and was ordered referred to the trial judge. Thereafter on February 23d Mevorah obtained an order from the District Court allowing him to withdraw his appeal and his motion for a new trial and directing that he be delivered to the penitentiary to serve his sentence. On March 19th Habib's motion for a new trial came on for argument before the trial judge. Without deciding it, he gave leave to both defendants to move for reduction of sentence. Such a motion was subsequently granted by orders filed on April 30th, and modified judgments of commitment were entered on May 2, 1934.

The only question presented is whether the District Court had jurisdiction to enter the judgments reducing the appellees' sentences. It did not. Their own appeal deprived the court below of jurisdiction to make further orders in the appealed cause. Draper v. Davis, 102 U. S. 370, 371, 26 L. Ed. 121; Keyser v. Farr, 105 U. S. 265, 266, 26 L. Ed. 1025; Spirou v. United States, 24 F.(2d) 796, 797 (C. C. A. 2), certiorari denied 277 U. S. 596, 48 S. Ct. 559, 72 L. Ed. 1006; United States v. Radice, 40 F.(2d) 445, 446 (C. C. A. 2); Midland Terminal Ry. Co. v. Warinner, 294 F. 185, 189 (C. C. A. 8).

The appellees concede the principle that perfecting an appeal terminates the power of the trial court, but contend that it is inapplicable because of their alleged voluntary abandonment of their appeal. This abandonment must be inferred, it is asserted, because of their motion for a new trial, and, in the case of Mevorah, his motion for permission to withdraw his appeal. In substance, appellees' argument is that the inferior court which had lost jurisdiction regained it again on the occasion of their moving therein for relief inconsistent with the prosecution of the appellate proceedings. This proposition is clearly inconsistent with the above-cited authorities. Appellees, however, rely upon Evans v. State Nat. Bank, 134 U. S. 330, 10 S. Ct. 493, 33 L. Ed. 917; Midland Terminal Ry. Co. v. Warinner, 294 F. 185 (C. C. A. 8); Gould v. United States, 205 F. 883 (C. C. A. 8). These cases hold that, after an appeal or writ of error has been perfected but "has spent its force" because the term at which the appeal was returnable has elapsed, the trial court may allow another appeal or writ of error if such allowance is still timely. They contain no warrant whatever for the contention that "abandonment" of the kind now relied upon can deprive the appellate court of jurisdiction and revest it in the court below. Nor can the failure to settle the record and file it within the time prescribed by our rules operate as a withdrawal of the appeal. Although ...

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8 cases
  • United States v. Ellenbogen
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 27 Febrero 1968
    ...pendency of an appeal from the conviction. Berman v. United States, 302 U.S. 211, 58 S.Ct. 164, 32 L.Ed. 204 (1937); United States v. Habib, 72 F.2d 271 (2 Cir. 1934); United States v. Grabina, 309 F.2d 783, 785 (2 Cir. 1962), cert. denied 374 U.S. 836, 83 S.Ct. 1885, 10 L.Ed.2d 1057 (1963)......
  • U.S. v. Pastor
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 19 Mayo 1977
    ...States v. Ellenbogen, 390 F.2d 537, 542 (2d Cir.), cert. denied, 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968); United States v. Habib, 72 F.2d 271 (2d Cir. 1934). In United States v. Warren, 453 F.2d 738, 744 (2d Cir.), cert. denied, 406 U.S. 944, 92 S.Ct. 2040, 32 L.Ed.2d 331 (1972), ......
  • U.S. v. Liddy
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 17 Marzo 1975
    ...probation or the reduction or correction of sentence, United States v. Ellenbogen, 390 F.2d 537, 542 (1968). See also United States v. Habib, 72 F.2d 271 (2d Cir. 1934); Spirou v. United States, 24 F.2d 796 (2d Cir.), cert. denied, 277 U.S. 596, 48 S.Ct. 559, 72 L.Ed. 1006 (1928); United St......
  • United States v. Caraway
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 3 Agosto 1973
    ...266, 26 L.Ed. 1025; Spirou v. United States 2 Cir., 24 F.2d 796, 797; United States v. Radice 2 Cir., 40 F.2d 445, 446; United States v. Habib 2 Cir., 72 F.2d 271." See also United States v. Chapman, 3 Cir. 1971, 448 F.2d 1381, 1388 n. 11; United States v. Mack, 1972, 151 U.S. App.D.C. 162,......
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