Opinion · Court of Appeals for the Sixth Circuit

United States v. Arthur Lawrence Phillips

United States v. Arthur Lawrence Phillips, 558 F.2d 363 (6th Cir. 1977)

Type
Opinion
Court
Court of Appeals for the Sixth Circuit
Jurisdiction
Federal
Date
1977-07-22
Topic
bankruptcy

PER CURIAM. Defendant and appellant Arthur Lawrence Phillips has filed herein his motion to remand the cause to the district court for consideration of a motion for new trial, requesting also a stay of proceedings in this court pending the district court’s disposition of that motion. It appears that Phillips has not yet filed his motion for a new trial in the district court pursuant to Rule 33, Federal Rules of Criminal Procedure. While that rule provides that “if an appeal is pending the court may grant the motion only on remand of the case,” we hold, as we did with respect to civil cases in First National Bank v. Hirsch, 535 F.2d 343, 346 (6th Cir. 1976), that the proper procedure for a party wishing to make a motion for a new trial while appeal is pending is to first file the motion in the district court.

Citator

UpLaw has not yet analyzed United States v. Arthur Lawrence Phillips. The absence of a flag is not a finding that it is good law.

Cited by
15 opinions
UNITED STATES v. PHILLIPS,558 F.2d 363(6th Cir. 1977)
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. ARTHUR LAWRENCE PHILLIPS,
DEFENDANT-APPELLANT.
No. 77-5003.
United States Court of Appeals, Sixth Circuit.
July 22, 1977.
Edward F. Marek, Federal Public Defender, Cleveland, Ohio, for defendant-appellant.

Frederick M. Coleman, U.S. Atty., Cleveland, Ohio, for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Ohio.
Before WEICK, EDWARDS and ENGEL, Circuit Judges.
PER CURIAM.
[1] Defendant and appellant Arthur Lawrence Phillips has filed herein his motion to remand the cause to the district court for consideration of a motion for new trial, requesting also a stay of proceedings in this court pending the district court's disposition of that motion.

[2] It appears that Phillips has not yet filed his motion for a new trial in the district court pursuant to Rule33, Federal Rules of Criminal Procedure. While that rule provides that "if an appeal is pending the court may grant the motion only on remand of the case," we hold, as we did with respect to civil cases inFirstNational Bank v. Hirsch,535 F.2d 343,346(6th Cir. 1976), that the proper procedure for a party wishing to make a motion for a new trial while appeal is pending is to first file the motion in the district court. If that court is inclined to grant the motion, it may then so certify, and the appellant should then make a motion in the court of appeals for a remand of the case to allow the district court to so act.E. g., United States v.Frame,454 F.2d 1136,1138(9th Cir.),cert. denied,406 U.S. 925,92 S.Ct. 1794,32 L.Ed.2d 126(1972);Smith v. UnitedStates,109 U.S.App.D.C. 28,283 F.2d 607,611(1960);accord,Knight v. United States,213 F.2d 699,702(5th Cir. 1954).

[3] Accordingly an order will be entered denying appellant's motion to remand, withoutPage 364prejudice to the resubmission of the same in the event the district court shall indicate that it is inclined to grant such a motion and issues a certificate to that effect.

[4] In connection with its motion for remand, the appellant has moved for a stay of proceedings. Upon consideration, that motion is also denied.Page 818