UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
February 22, 1979
UNITED STATES OF AMERICA, APPELLEE,
SEBASTIAN INTERSIMONE, APPELLANT.
Present: Hon. J. Edward Lumbard, Hon. James L. Oakes, Hon. Ellsworth A. Van Graafeiland, Circuit Judges.
Appeal from an order of the United States District Court for the Southern District of New York, Richard Owen, Judge, denying appellant permission to join in or otherwise intervene as a party in a post-trial evidentiary hearing in connection with a motion for a new trial by appellant's codefendant Frank Moten.
Because the order of the district court does not purport in any way to dispose finally of the ultimate relief sought by appellant pursuant to Fed. R. Crim. P. 33 and 28 U.S.C. § 2255, but, on the contrary, the order specifically recognizes that appellant "will have the benefit of anything discovered by Moten without being precluded from introducing new evidence of [his] own" and that "[once] the issues in Moten's case are resolved any codefendant can take appropriate action...," said order is interlocutory and not appealable under 28 U.S.C. §§ 1291 or 1292 and is not an exception to the final judgment rule under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1941).
Accordingly, it is ORDERED that the appeal be and it hereby is dismissed.
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