United States of America, Plaintiff-appellee, v. Arthur Lawrence Phillips, Defendant-appellant, 558 F.2d 363 (6th Cir. 1977)

Defendant and appellant Arthur Lawrence Phillips has filed herein his motion to remand the cause to the district court for consideration of a motion for new trial, requesting also a stay of proceedings in this court pending the district court's disposition of that motion.

It appears that Phillips has not yet filed his motion for a new trial in the district court pursuant to Rule 33, Federal Rules of Criminal Procedure. While that rule provides that "if an appeal is pending the court may grant the motion only on remand of the case," we hold, as we did with respect to civil cases in First National Bank v. Hirsch, 535 F.2d 343, 346 (6th Cir. 1976), that the proper procedure for a party wishing to make a motion for a new trial while appeal is pending is to first file the motion in the district court. If that court is inclined to grant the motion, it may then so certify, and the appellant should then make a motion in the court of appeals for a remand of the case to allow the district court to so act. E. g., United States v. Frame, 454 F.2d 1136, 1138 (9th Cir.), cert. denied, 406 U.S. 925, 92 S. Ct. 1794, 32 L. Ed. 2d 126 (1972); Smith v. United States, 109 U.S.App.D.C. 28, 283 F.2d 607, 611 (1960); accord, Knight v. United States,213 F.2d 699, 702 (5th Cir. 1954).

Accordingly an order will be entered denying appellant's motion to remand, without prejudice to the resubmission of the same in the event the district court shall indicate that it is inclined to grant such a motion and issues a certificate to that effect.

In connection with its motion for remand, the appellant has moved for a stay of proceedings. Upon consideration, that motion is also denied.