(dissenting).
The majority’s interpretation of Rule 33 of the Rules of Criminal Procedure would authorize the district court to grant a new trial to a convicted defendant at any time. The majority’s view is so broad that even if, as here, a motion for a new trial had been first denied by the trial court, the judgment of conviction affirmed by this court, certiorari denied by the Supreme Court, and execution of judgment of sentence commenced, a new trial may none the less be granted in the discretion of the trial' court.
I do not think that the rule goes so far. Conceding as is necessary that it§ first sentence 1 gives the trial court very broad powers not heretofore conferred upon it,2, 3 the critical point is that when Judge Smith denied Memolo’s motion for a new trial and this court, after careful consideration of the identical grounds urged before the trial judge, affirmed the judgment of conviction, the motion was no longer pending and might not be reconsidered and granted by the trial court upon remand. It has been long settled that a lower court must obey the mandate of the superior tribunal and render judgment in conformity therewith. See Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 780, 83 L.Ed. 1184, wherein Mr. Justice Frankfurter stated, “The general proposition which moved [the District Court] — that it was bound to carry the mandate of the upper court into execution and could not consider the questions which the mandate laid at rest — is indisput*647able.” See also the opinion of Mr. Chief Justice Groner in Mays v. Burgess, 80 U.S.App.D.C. 236, 152 F.2d 123, at page 124, and the numerous authorities cited. True, the decisions cited in this opinion were rendered in civil cases but the principle enunciated in them is clearly applicable by way of analogy to a criminal proceeding.4 The grounds which constituted the basis for the motion fpr a new trial in the District Court were within the scope of our mandate and were controlled by it. The result was that upon affirmance of the judgment of conviction, Memolo’s motion was no longer pending. It was spent, and could not thereafter be acted on validly by the trial court.5
The result of the majority’s interpretation of Rule 33 is attended by unusual consequences. Memolo did not move for reconsideration of his motion for a new trial. Judge Smith undertook the reconsideration sua sponte on the remand of the cause to the lower court. Memolo was tried, found guilty and was sentenced to 18 months imprisonment by a court having jurisdiction of his person and of the offense charged in the indictment. The indictment was sufficient and the evidence offered by the United States was ample to sustain a conviction. Memolo had a fair trial. The judgment of sentence had been carried into execution and Memolo had served about three days of his sentence when the order granting a new trial was filed, thus releasing him from the penitentiary. Under the circumstances there is little doubt but that Memolo might plead and prove former jeopardy if an attempt is made to try him a second time.
I conclude that Rule 33 was intended to allow a district court of the United States very wide discretion in granting a new trial perhaps at any point in time.6 But the power thus conferred is cut off when the grounds on which a motion for a new trial was based have been passed upon by an appellate tribunal, the scope of the mandate of the appellate court covering the precise grounds offered by the defendant in support of the motion for a new trial in the lower court. The decision of the appellate court must be in favor of a new trial or against a new trial. In either event the decision of the appellate court must be deemed to be final and to settle the law of the case. Otherwise there can be no certain end to criminal litigation.
For these reasons I must dissent from the majority view. I am of the opinion that the writs of prohibition and mandamus should issue as prayed for.
I am authorized to state that Judge Mc-LAUGHLIN concurs in the views expressed in this opinion.
As follows: “The court may grant a new trial to the defendant if required in the interest of justice.”
Sec Rule II of the “Rules of Practice and Procedure, after plea of guilty * 18 U.S.C.A. following section 688, 292 U.S. 662, 54 S.Ct. xxxvii.
Cf. The Notes to Rule 33, New York University School of Law, Institute Proceedings, Volume VI, p. 55, which state, inter alia, “[The Rule] substantially continues existing practice.”
No pertinent decision in a criminal case has been cited to us and I can find none. Flowers v. United States, 8 Cir., 86 F.2d 79, cited by the United States, is not apposite. In the cited case the motion for a new trial was made outside the sixty day period provided by Rule II and the term rule was also in effect. Cf. Rule 45(c) of the present rules.
I do not take the position if Memolo’s appeal had asserted as a basis for the reversal of the judgment of conviction other grounds than those on which his motion for a new trial was based, that the court below could not have reconsidered his motion for a new trial and have granted it. Under such circumstances the numerous authorities beginning with Com. v. Miller, 6 Dana, Ky., 315, and ending with State v. Lubosky, 59 R.I. 493, 196 A. 395, cited in the majority opinion, would be pertinent at least by analogy. In those cases courts reversed their positions upon reconsideration of motions before appeals were taken to appellate tribunals.
It might be argued very plausibly by virtue of the first sentence of Rule 33, no appeal being taken, a trial judge might reconsider a motion for a new trial filed by a convicted defendant and grant it after the defendant had served, let us say, three years of a five year sentence. Under such circumstances it might be necessary to hold that the source of the motion was spent after the lapse of a reasonable time. Such a question, however, is not before us in the case at bar.