decided: January 13, 1964.
UNITED STATES OF AMERICA, APPELLEE,
FIRST NATIONAL CITY BANK, APPELLANT, AND OMAR, S.A., A URUGUAYAN CORPORATION, LAZARD FRERES & CO., LEHMAN BROTHERS, BELGIAN-AMERICAN BANKING CORP., BELGIAN-AMERICAN BANK AND TRUST CO., AND FIRST NATIONAL CITY TRUST CO., DEFENDANTS.
Before LUMBARD, Chief Judge, CLARK, WATERMAN, MOORE, FRIENDLY, SMITH, HAYS and MARSHALL, Circuit Judges.
The court having sat in banc to hear the appeal, with the exception of Judge Kaufman who did not participate, and due deliberation having been had thereon, Judges Lumbard, Waterman, Moore, and Friendly vote to reverse the order of the district court for the reasons set forth in Judge Moore's opinion reported at 321 F.2d 14, and Judges Smith, Hays, and Marshall vote to affirm for the reasons set forth in Judge Hays' opinion reported at 321 F.2d 25. 1 The order of the district court, reported at 210 F. Supp. 773 (1962), is accordingly reversed.
Upon application therefor, the court will grant a stay, pursuant to Rule 28(c), pending application for certiorari to the Supreme Court of the United States. convicted for unlawful possession of narcotics. The judgment was affirmed on appeal, 10 Cir., 255 F.2d 202. The trial court denied relief without a hearing on the grounds that the petition when examined in the light of the transcript of the proceedings on direct appeal presented no new grounds for granting relief. Out of an abundance of precaution an appeal in forma pauperis was granted and counsel was appointed. Counsel has filed a memorandum brief in which he states that the matters presented now under 28 U.S.C. § 2255 were conclusively resolved in the direct appeal.
Upon consideration of the record and files in the case, we agree with the trial court. The judgment is affirmed.
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