Syllabus.

UNITED STATES v. SMITH, U. S. DISTRICT JUDGE, ET AL.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.

No. 498. Argued March 11, 1947. Decided June 2, 1947.

1. After a judgment of conviction has been affirmed by the Circuit Court of Appeals (upon an appeal in which the district court's denial of a motion for a new trial was one of the errors assigned) and the defendant has begun service of the sentence, a federal district court is without power under Rule 33 of the Rules of Criminal Procedure to order a new trial sua sponte. Pp. 471–477.

2. Where, in such circumstances, a district court has ordered a new trial, the Government is entitled to writs of mandamus and prohibition from the Circuit Court of Appeals requiring that the order be vacated. Pp. 470,477.

156 F.2d 642, reversed.

The Circuit Court of Appeals denied a petition by the United States for writs of mandamus and prohibition directed to the District Court and the judges thereof. 156 F.2d 642. This Court granted certiorari. 329 U. S. 703. Reversed, p. 477.

Assistant to the Attorney General McGregor argued the cause for the United States. With him on the brief were Acting Solicitor General Washington, Sewall Key and Melva M. Graney.

Robert T. McCracken argued the cause for Memolo, respondent. With him on the brief were Stanley F. Coar and C. Russell Phillips.

No appearance for Smith, United States District Judge, respondent.

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 and was given leave to file reasons in its support. He filed fifty-four 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, 152 F. 2d 759. Petition for certiorari was denied by this Court, Memolo v. United States, 327 U. S. 800. 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.

469

Opinion of the Court.

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. 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:

Opinion of the Court.

331 U.S.

A

"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. 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."

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 catalogued as they might have been.' 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

1 Section 269 of the Judicial Code, 28 U. S. C. § 391, provides less generally that "All United States courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law." That section, like Rule 33, does not expressly put a limit of time on the power granted, yet it was never suggested that it gave district courts power to grant a new trial at any time. It may be said that the term rule applied, but the first sentence of § 269 might as readily have been interpreted as an exception to that rule as the first sentence of the present rule may be construed to be restricted by no period of time.

It may be worthy of note that Rule 33 provides that a court may grant a new trial to a defendant, and does not say that the court may order a new trial.

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 newlydiscovered 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. There was, however, a three-day limitation on the right to move for a new trial. Rule II, Criminal Appeals Rules of May 7, 1934, 292 U. S. 662, 18 U. S. C. § 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

2 Before the new Rules, there was no question that the power of the trial judge to grant a new trial was limited by the duration of the term. United States v. Mayer, supra. If the Rules had extended that power indefinitely, it would seem that considerable comment on this fundamental change would have been called forth. Yet hardly anyone suggested that Rule 33 means what respondent contends it does. But cf. Stewart, Comments on Federal Rules of Criminal Procedure, 8 John Marshall L. Q. 296, 303. The Rules, in abolishing the term rule, did not substitute indefiniteness. On the contrary, precise times, independent of the term, were prescribed. The policy