UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
May 14, 1979
UNITED STATES OF AMERICA, APPELLEE,
ANTHONY PROVENZANO A/K/A "TONY PRO" AND ANTHONY BENTRO, APPELLANTS.
Order REMANDING CASE TO DISTRICT COURT FOR LIMITED PURPOSE
After oral argument and while this appeal was pending sub judice in this Court, appellants' counsel having filed a joint motion to supplement the record on appeal with so-called Brady material and to seal the motion papers; and
Government counsel having filed an affidavit suggesting in substance that the instant motion be presented to the District Court; and
This Court having considered the motion papers and the government's affidavit with respect thereto; it is therefore
Ordered as follows:
(1) The motion to supplement the record on appeal in this Court is denied.
(2) The case, however, is remanded to the District Court, Hon. Charles M. Metzner, District Judge, for the limited purpose of allowing appellants to move in the District Court for a new trial based on the ground of newly discovered evidence, Fed. R. Crim. P. 33, and subject to the standards applicable to such a motion.
(3) In the event such motion is granted, Judge Metzner will take appropriate action according to law.
(4) In the event such motion is denied, Judge Metzner's opinion and order will be certified to this Court, together with such documents as Judge Metzner shall certify were relied upon by him in the determination of said motion -- all of which shall constitute a supplemental record on the instant appeal.
(5) The panel which originally heard this appeal retains jurisdiction of the appeal for all purposes.
(6) The request by appellants' counsel that the instant motion papers be sealed is granted, subject to Judge Metzner's determination as to when and under what conditions the papers may be unsealed. Judge Metzner should confer with Hon. H. Curtis Meanor, United States District Judge for the District of New Jersey, with respect to the unsealing of these papers. The instant order of this Court shall be included with the sealed papers to be transmitted to Judge Metzner by the Clerk of this Court.
Dated at New York, N.Y., this 14th day of May, 1979.
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