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UNITED STATES v. PROVOO

May 12, 1954

UNITED STATES of America, Plaintiff,
v.
John David PROVOO, Defendant



The opinion of the court was delivered by: NOONAN

The petitioner has been convicted and sentenced by this court, and now seeks an order vacating and setting aside the original and corrected judgments of conviction, and discharging him; or, in the alternative, granting him a new trial. The former request for relief is based on Title 28 U.S.Code, § 2255; the latter is based on Rule 33 of the Federal Rules of Criminal Procedure, Title 18 U.S.Code.

The appropriate portions of Section 2255 read as follows:

 
' § 2255. Federal custody; remedies on motion attacking sentence
 
'A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
 
'A motion for such relief may be made at any time.
 
'Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate. * * *'

 The pertinent provisions of Rule 33 are as follows:

 
'The court may grant a new trial to a defendant if required in the interest of justice. * * * 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.'

 Thus, at the outset, it might be well to point out that, since the case in chief is now pending on appeal, this court is without authority to grant the motion for a new trial based solely on newly discovered evidence. Rule 33. We are limited to indicating our opinion as to the merits of the motion as we do at the conclusion hereof. Smith v. Pollin, 90 U.S.App.D.C. 178, 194 F.2d 349; U. S. v. Minkoff, 2 Cir., 181 F.2d 538. Thus, the jurisdiction of this court to grant the petitioner a new trial must rest on Section 2255.

 The petitioner was convicted of four overt acts of treason committed in places outside of the jurisdiction of any particular state or district of the United States.

 Article 3, Sec. 2, Clause 3 of the Constitution of the United States provides certain privileges, namely that:

 
'The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.'

 Pursuant to this last provision, the First Congress enacted the first Crimes Act, April 30, 1790, c. 9, § 8, 1 Stat. 112, 114, the last part of which reads as follows:

 
' * * * and the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is ...

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