Alastair Kyle, Petitioner-appellant, v. United States of America, Respondent-appellee, 331 F.2d 286 (2d Cir. 1964)

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US Court of Appeals for the Second Circuit - 331 F.2d 286 (2d Cir. 1964) Argued April 13, 1964
Decided April 17, 1964

Alastair Kyle, New York City, appellant pro se.

Martin R. Pollner, Asst. U. S. Atty., Eastern Dist. of New York, for respondent-appellee.

Before WATERMAN and HAYS, Circuit Judges.


Pursuant to our order of reversal and remand, Kyle v. United States, 297 F.2d 507 (2 Cir. 1961), hearing was held below in the district court as a result of which petitioner's conviction was vacated and a new trial ordered. Petitioner now brings two motions to the court. In the first it would appear that he is desirous of appealing from that portion of the order below that would require him to stand trial anew; and he seeks leave to appeal in forma pauperis and to have counsel assigned to him to represent him on appeal.

After the entry of the order above mentioned the United States Attorney for the Eastern District of New York moved to dismiss the indictment upon which petitioner was convicted and upon which a new trial was ordered. In his other petition, petitioner seeks a stay from us to prevent the Government from proceeding with its motion to dismiss the indictment.

The petitioner objects to the dismissal of the indictment because after his conviction he fully served his sentence, and he is of the opinion that a dismissal of the indictment upon which he was convicted, sentenced, and then served his full sentence, would in some way affect certain collateral civil proceedings that he has brought or intends to bring.

We were informed by the Government that all statutes of limitations have now run on any alleged crime that petitioner could have committed arising out of the facts upon which he was indicted and that, if we deem it advisable so to do, the Government will consent to an order reciting this fact.

Under all these circumstances, therefore, we deny petitioner's application for a stay. We will hold petitioner's application for leave to appeal in forma pauperis and for assignment of counsel until informed that the indictment has been dismissed. We will then dismiss this application as having become moot.