United States v. Smith

Decision Date02 June 1947
Docket NumberNo. 498,498
Citation331 U.S. 469,67 S.Ct. 1330,91 L.Ed. 1610
CourtU.S. Supreme Court

Rehearing Denied Oct. 13, 1947. See 68 S.Ct. 28.

Mr. Douglas W. McGregor, of Washington, D.C., for petitioner.

Mr. Robert T. McCracken, of Philadelphia, Pa., for respondent, John Memolo.

No appearance for Hon. William F. Smith, District Judge.

Mr. Justice JACKSON delivered the opinion of the Court.

The United States in this case sought writs of mandamus and prohibition from the Court of Appeals directed to the judges of the District Court for the Middle District of Pennsylvania to require that an order by which a new trial was granted to one John Memolo be vacated.

Memolo was convicted of tax evasion after jury trial before Judge William F. Smith. Three days later Memolo filed a motion for new trial wnd was given leave to file reasons in its support. He filed 54 reasons such as the trial court's denial of continuance of motion to quash the indictment, of motion for a bill of particulars, and of motion for a directed verdict. He complained also of the court's action in discharging some of the petit jurors, in admission and exclusion of evidence, in instructing the jury, and in conduct toward defendant and his counsel said to have been prejudicial. On the same day Judge Smith denied the motion and sentenced Memolo to three years imprisonment and fines.

Memolo appealed, assigned as errors all of the motion grounds and, in addition, the denial of the motion for new trial. The Court of Appeals for the Third Circuit affirmed with a per curiam opinion declaring that it could perceive no substantial error in the proceedings. United States v. Memolo, 3 Cir., 152 F.2d 759. Petition for certiorari was denied by this Court, Memolo v. United States, 327 U.S. 800, 66 S.t. 902, 90 L.Ed. 1025. Therefore, the Court of Appeals issued its mandate of affirmance and in the conventional form commanded that 'such execution and further proceeding be had in said cause, as according to right and justice, and the laws of the United States ought to be had, the said appeal notwithstanding.' Memolo was then taken into custody and on April 8, 1946, imprisoned in a federal penitentiary.

The following day the Clerk of the District Court received from Judge Smith an order dated April 8th 'that judgment heretofore entered be vacated and that the verdict heretofore returned be set aside, and that a new trial be granted the defendant.' It was accompanied by a 'memorandum' reciting the history of the case and that 'This Court, while the appeal was pending, reconsidered the grounds urged by the defendant in support of his motion for a new trial. It is our opinion upon this reconsideration that in the interest of justice a new trial should be granted the defendant.' It assigned no more particular ground for the order. Memolo was thereupon released from the penitentiary on bail.

On the Government's petition to the Court of Appeals for writs directing that the order be vacated, Memolo was allowed to intervene. Judge Smith also answered asserting that his order 'was in accordance with the mandate of this Court and was authorized by the Rules of Criminal Procedure of 1946, effective March 21, 1946, particularly Rule 33 thereof.' He referred to his memorandum but did not further elucidate his reasons for granting a new trial. On consideration, the court below sitting en banc denied the petition for writs of mandamus and prohibition. 3 Cir., 156 F.2d 642. Two of the five judges dissented.

The mandate which the appellate court returned to the District Court was in the conventional and long-used form adapted to all appealed causes and contained no special directions peculiar to this case. It was neutral on the issues here raised and nothing in its terms either expressly authorized or prohibited the order for new trial. The power of the District Court to make such an order turns entirely on the Rules of Criminal Procedure cited and relied upon by Judge Smith.

Rule 33 provides: 'New Trial. The court may grant a new trial to a defendant if required in the interest of justice. If trial was by the court without a jury the court may vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. 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. A motion for a new trial based on any other grounds shall be made within 5 days after verdict or finding of guilty or within such further time as the court may fix during the 5-day period.' 18 U.S.C.A. following section 687.

The first sentence of this rule is declaratory of the power to grant a new trial 'in the interest of justice' instead of for reasons catelogued as they might have been.1 The generality of the reasons assigned by Judge Smith for the order in question is all that is required. But this sentence says nothing of the time within which the court must act or of the effect of an intervening appeal and affirmance on the power. Such time provisions as there are relate to filing of motions by the defendant.

The last sentence of the rule which puts a five-day limit on motions for new trial on any ground other than newly-discovered evidence was suggested by the law as it stood before adoption of the New Rules. Generally speaking, the power of a court over its judgments at common law expired with the term of Court. United States v. Mayer, 235 U.S. 55, 67—69, 35 S.Ct. 16, 18—20, 59 L.Ed. 129. There was, however, a three-day limitation on the right to move for a new trial. Rule 2, Criminal Appeals Rules of May 7, 1934, 292 U.S. 662, 18 U.S.C. § 688, 18 U.S.C.A. § 688. Rule 33, in its last sentence, extended that period to five days, and otherwise extended the time in which to move for new trial because of newly-discovered evidence. The limitation by expiration of the term was repealed by Rule 45(c).

It is now said that because the literal language of the Rule places the five-day limit only on the making of the motion, it does not limit the power of the court later to grant the motion, and the power survives affirmance of the judgment by appellate courts. Briefly, Judge Smith thought and intervenor argues that the rule prevents a defendant from asking the court to grant a new trial after the times specified, but that it permits the judge to order retrial without request and at any time. The result, in view of annulment of the term limitation,2 would be that the power of the trial court to grant new trials on its own motions lingers on indefinitely. There are several reasons why this construction of the Rules is not acceptable.

It is not the function of appellate courts to review tentative decisions of trial courts. The Circuit Court of Appeals had no jurisdiction to review the denial of the motion for a new trial unless the denial was 'final.' Judicial Code, § 128(a), 28 U.S.C. § 225(a), 28 U.S.C.A. § 225(a). Question of finality would be raised if the trial court, while formally denying the motion for new trial on the record, reserves the right to change its mind after the opinion of an appellate court has been elicited. In this case the Court of Appeals reviewed 54 specifications of error and found none to warrant reversal. All of this was but vain if the trial court was to act as its own reviewing body or if it had not reached a conclusive determination of the orders being appealed. Such a practice would authorize the appellate process to be exercised in an advisory capacity while the trial court, regardless of appellate decision, could set aside all that was the basis of appeal.

Moreover, it would be a strange rule which deprived a judge of power to do what was asked when request was made by the person most concerned, and yet allowed him to act without petition. If a condition of the power is that request for its exercise be not made, serious constitutional issues would be raised. For it is such request which obviates any later objection the defendnt might m ake on the ground of double jeopardy. Murphy v. Massachusetts, 177 U.S. 155, 160, 20 S.Ct. 639, 641, 44 L.Ed. 711; cf. Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872. This intervenor, for example, has been tried, convicted and imprisoned and has served some, although little, time on the sentence of the court. After remand of his case, he made no further motion for a new trial and could make none. It is not necessary for us now to decide whether his retrial on the court's own motion would amount to...

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