The United States in this case sought writs of mandamus and prohibition from the Court of Appeals directed to the judges of the District Court for the Middle District of Pennsylvania to require that an order by which a new trial was granted to one John Memolo be vacated.
Memolo was convicted of tax evasion after jury trial before Judge William F. Smith. Three days later Memolo filed a motion for new trial wnd was given leave to file reasons in its support. He filed 54 reasons such as the trial court's denial of continuance of motion to quash the indictment, of motion for a bill of particulars, and of motion for a directed verdict. He complained also of the court's action in discharging some of the petit jurors, in admission and exclusion of evidence, in instructing the jury, and in conduct toward defendant and his counsel said to have been prejudicial. On the same day Judge Smith denied the motion and sentenced Memolo to three years imprisonment and fines.
Memolo appealed, assigned as errors all of the motion grounds and, in addition, the denial of the motion for new trial. The Court of Appeals for the Third Circuit affirmed with a per curiam opinion declaring that it could perceive no substantial error in the proceedings. United States v. Memolo, 3 Cir., 152 F.2d 759. Petition for certiorari was denied by this Court, Memolo v. United States, 327 U.S. 800, 66 S.t. 902, 90 L.Ed. 1025. Therefore, the Court of Appeals issued its mandate of affirmance and in the conventional form commanded that 'such execution and further proceeding be had in said cause, as according to right and justice, and the laws of the United States ought to be had, the said appeal notwithstanding.' Memolo was then taken into custody and on April 8, 1946, imprisoned in a federal penitentiary.
The following day the Clerk of the District Court received from Judge Smith an order dated April 8th 'that judgment heretofore entered be vacated and that the verdict heretofore returned be set aside, and that a new trial be granted the defendant.' It was accompanied by a 'memorandum' reciting the history of the case and that 'This Court, while the appeal was pending, reconsidered the grounds urged by the defendant in support of his motion for a new trial. It is our opinion upon this reconsideration that in the interest of justice a new trial should be granted the defendant.' It assigned no more particular ground for the order. Memolo was thereupon released from the penitentiary on bail.
On the Government's petition to the Court of Appeals for writs directing that the order be vacated, Memolo was allowed to intervene. Judge Smith also answered asserting that his order 'was in accordance with the mandate of this Court and was authorized by the Rules of Criminal Procedure of 1946, effective March 21, 1946, particularly Rule 33 thereof.' He referred to his memorandum but did not further elucidate his reasons for granting a new trial. On consideration, the court below sitting en banc denied the petition for writs of mandamus and prohibition. 3 Cir., 156 F.2d 642. Two of the five judges dissented.
The mandate which the appellate court returned to the District Court was in the conventional and long-used form adapted to all appealed causes and contained no special directions peculiar to this case. It was neutral on the issues here raised and nothing in its terms either expressly authorized or prohibited the order for new trial. The power of the District Court to make such an order turns entirely on the Rules of Criminal Procedure cited and relied upon by Judge Smith.
Rule 33 provides: 'New Trial. The court may grant a new trial to a defendant if required in the interest of justice. If trial was by the court without a jury the court may vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. 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. A motion for a new trial based on any other grounds shall be made within 5 days after verdict or finding of guilty or within such further time as the court may fix during the 5-day period.' 18 U.S.C.A. following section 687.