Before BIGGS, MARIS, GOODRICH, McLAUGHLIN, and O'CONNELL, Circuit Judges.
The petitioner, the United States of America, prays that a writ of mandamus issue directed to the United Ststes District Court for the Middle District of Pennsylvania, the judges of that court and the Honorable William F. Smith, a district judge specially assigned to that court, commanding them to revoke and set aside an order made by Judge Smith on April 8, 1946, wherein he ordered that a judgment theretofore entered in the case of United States v. John Memolo, Criminal Docket No. 11319, March Term 1945, be vacated and the verdict set aside, and that a new trial be granted the defendant; commanding them to reinstate the judgment entered in said case, which judgment was affirmed on January 22, 1946, by this court (152 F.2d 759); and commanding them to proceed with the execution of the judgment and sentence as required by the mandate of this court. The petitioner also prays for the issuance of a writ of prohibition prohibiting them from proceeding further in the case of United States v. Memolo and from exercising jurisdiction under the order of Judge Smith entered April 8, 1946, except as necessary to carry out the mandate of this court.
The following facts are relied upon in support of the petition. On May 23, 1945, a trial jury returned a verdict of guilty against John Memolo upon an indictment for wilfully attempting to evade and defeat his federal income taxes. On May 26, 1945, Memolo filed a motion for a new trial. The motion for a new trial was denied; judgment was entered and sentence imposed on June 19, 1945 by the Honorable William F. Smith, the trial judge. An appeal to this court followed.On January 22, 1946, the judgment of conviction was affirmed by this court.*fn1 On April 4, 1946, this court issued its mandate to the district court affirming the judgment of the district court.
The defendant was taken into custody and on April 8, 1946 was transferred to the Federal Penitentiary at Lewisburg, Pennsylvania. On April 9, 1946, the clerk of the district court received an order from Judge Smith, dated April 8, 1946, in which it was stated that the court having reconsidered the grounds urged in support of the motion it appeared that in the interest of justice a new trial should be granted the defendant. The order directed that the judgment be vacated, the verdict be set aside and a new trial be granted. The warden thereupon relinquished custody of Memolo to the district court which released him on bail. Thereafter the United States petitioned for writs of mandamus and prohibition, Judge Smith filed an answer on his own behalf and on behalf of the District Court for the Middle District of Pennsylvania and the defendant, Memolo, intervened as an interested party.
Before considering the merits of the petition we notice the intervenor's contention that this court has no power to issue the writs requested. The contention cannot be sustained, however. Section 262 of the Judicial Code, 28 U.S.C.A. § 377, provides that:
"* * * The Supreme Court, the circuit courts of appeals, and the district courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law."
The petition sets out facts which the petitioner contends prove conclusively that the district court failed to carry out the mandate of this court. If this be so Section 262 gives us power to issue the writs in aid of our appellate jurisdiction.*fn2 The intervenor urges that the facts show that the district court acted in conformity with our mandate. But this is merely to contend that the petitioner has not made out a case which would justify our issuing the writs. It is well established that a petition for a writ of mandamus is an appropriate method of raising the issue whether the trial court failed to comply with the appellate court's mandate.*fn3
We may, therefore, turn to the primary question for our determination which is whether under the circumstances of this case the trial judge had the power to reconsider his denial of Memolo's motion for a new trial and thereupon to grant the motion. We are not concerned with the question as to the time within which Memolo could have filed his motion for a new trial since he did in fact file that motion within three days after the jury returned its verdict. In this connection it will be noted that all the time limitations which are contained in Criminal Procedure Rule 33,*fn4 the rule which deals with the granting of new trials and motions therefor, relate solely to the time within which motions made be made. The rule does not impose any time limitation upon the power of the trial judge to grant a new trial upon consideration of a timely motion. The broad provision of the rule as to the judge's power is simply that "The court may grant a new trial to a defendant if required in the interest of justice."
Neither the federal statutes*fn5 nor rules which deal with the granting of new trials cast any light upon the power of the trial judge to reconsider his action in denying or granting a motion for a new trial. In the absence of statutory authority we have examined the decided cases and find that the weight of authority is in favor of such power, provided it is exercised within the term.*fn6 So in Fine v. Commonwealth, 1942, 312 Mass. 252, 44 N.E.2d 659, 663, 145 A.L.R. 392, in which the power was sustained, the court said:
"The granting of a motion for a new trial is a matter of sound judicial discretion. But there seems to be no good reason for holding that the power of a judge of the Superior Court with respect to a motion for a new trial in a criminal case is ended when he grants or denies it. If it should be said that once having denied the motion, he could not vacate his order and grant the motion for sufficient cause, it seems apparent that the administration of justice might be impeded, if it did not, in truth, fail."
In State v. Luft, 1919, 104 Kan. 353, 179 P. 553, 555, the state supreme court sustained an order of the trial court setting aside its previous order for a new trial and said:
"The plenary power of the court during the term over its orders and judgments is too well established to need buttressing by authority. The quality of finalty is always conditioned by the possible exercise of this power, and the court may freely return to the proceedings, and correct, revise, amend, or annul them."
Among the cases upholding the power of the trial court in a criminal case to reconsider its ruling upon a motion for a new trial are: Com. v. Miller, 1838, 6 Dana, Ky., 315; Gonzales v. State, 1897, 38 Tex. Cr.R. 62, 41 S.W. 605; Johnson v. State, 1908, 1 Okl.Cr. 321, 97 P. 1059, 18 Ann.Cas. 300; People v. Cimino, 1941, 163 App.Div. 217, 147 N.Y.S. 1079; Hefton v. State, 1934, 206 Ind. 663, 190 N.E. 847; Dimmel v. State, 1935, 128 Neb. 191, 258 N.W. 271; and People v. Beath, 1936, 277 Mich. 473, 269 N.W. 238. Contra: State v. Duncan, ...