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.
331 U. S.
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.
331 U. S. 470,
331 U. S. 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.
331 U. S. 477.
Page 331 U. S. 470
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 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, 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.
Page 331 U. S. 471
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.
Page 331 U. S. 472
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."
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. [
Footnote 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
Page 331 U. S. 473
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,
235 U. S. 67-69.
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. 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, [
Footnote 2] would be that the power of the trial court to
grant new trials on its own
Page 331 U. S. 474
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). 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 defendant might make
on the ground of double jeopardy.
Murphy v. Massachusetts,
177 U. S. 155,
177 U. S. 160;
cf. 85 U. S. 18
Wall. 163. 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
Page 331 U. S. 475
his retrial on the court's own motion would amount to double
jeopardy. [
Footnote 3] That a
serious constitutional issue would be presented by such a procedure
is enough to suggest that we avoid a construction that will raise
such an issue.
For yet another reason, we would be reluctant to hold that the
court has a continuing power on his own initiative to grant what
the defendant has not the right to go into open court and ask. To
approve the practice followed in this case would almost certainly
subject trial judges to private appeals or application by counsel
or friends of one convicted. We think that expiration of the time
within which relief can openly be asked of the judge, terminates
the time within which it can properly be granted on the court's own
initiative. If the judge needs time for reflection as to the
propriety of a new trial, he is at liberty to take it before
denying a timely made motion therefor.
Support for the interpretation urged by respondent rises from
fear of miscarriage of justice. New trials, however, may be granted
for error occurring at the trial or for reasons which were not part
of the court's knowledge at the time of judgment. For the latter,
the Rules make adequate provision. Newly discovered evidence may be
made ground for motion for new trial within two years after
judgment. Rule 33. For the former, habeas corpus provides a remedy
for jurisdictional and constitutional errors at the trial without
limit of time.
Johnson v. Zerbst, 304 U.
S. 458;
Walker v. Johnston, 312 U.
S. 275;
Waley v. Johnston, 316 U.
S. 101;
Adams v. United States ex rel. McCann,
317 U. S. 269.
Possibility of unredressed injustice therefore remains only in
prejudicial happenings during trial. [
Footnote 4] The trial judge is given power by the
Rules
Page 331 U. S. 476
to entertain motions for new trial within five days after
verdict and may extend that time for so long as he thinks necessary
for proper consideration of the course of the trial. But extension
of that time indefinitely is no insurance of justice. On the
contrary, as time passes, the peculiar ability which the trial
judge has to pass on the fairness of the trial is dissipated as the
incidents and nuances of the trial leave his mind to give way to
immediate business. It is in the interest of justice that a
decision on the propriety of a trial be reached as soon after it
has ended as is possible, and that decision be not deferred until
the trial's story has taken on the uncertainty and dimness of
things long past.
A majority of the Court of Appeals thought it a shocking
suggestion that, on mature reflection, a District Judge may not
correct an injustice because his first reaction was different. We
doubt if many cases will occur in which very shocking injustices
will survive after the trial court denies a motion based on
detailed recital of grounds for new trial and a Court of Appeals
affirms. This possibility seems too remote to induce us to hold
that a trial court's denial of a new trial, affirmed on appeal, has
no finality, and that a trial judge may, even after service of a
sentence has begun, set the whole proceedings aside and start over
-- if, indeed, a new start would not also be forbidden. [
Footnote 5]
Page 331 U. S. 477
We hold that the Government was entitled to the relief sought.
The judgment is accordingly reversed with direction that writs
issue to effect vacation of the order for new trial.
Judgment reversed.
[
Footnote 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.
[
Footnote 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 of the Rules was not to extend
power indefinitely, but to confine it within constant time periods.
See Notes to Rules of Criminal Procedure, Rule 45.
[
Footnote 3]
Nor need we decide whether his intervention in this case in
support of the trial judge's power amounts to a consent to a second
trial.
[
Footnote 4]
Although this Court has reserved decision on whether the federal
district courts are empowered to entertain proceedings in the
nature of
coram nobis
"to bring before the court that pronounced the judgment errors
in matters of fact which had not been put in issue or passed upon,
and were material to the validity and regularity of the legal
proceeding itself. . . ."
United States v. Mayer, 235 U. S.
55,
235 U. S. 68, it
is difficult to conceive of a situation in a federal criminal case
today where that remedy would be necessary or appropriate. Of
course, the federal courts have power to investigate whether a
judgment was obtained by fraud, and make whatever modification is
necessary at any time.
Universal Oil Products Co. v. Root
Refining Co., 328 U. S. 575.
[
Footnote 5]
When the draftsmen of the Rules of Civil Procedure, adopted long
before the Criminal Rules, wanted to give the trial judge power to
grant a new trial on his own initiative, they did so in express
words. Rule 59(d), Rules of Civil Procedure.