Andrew Pitts v. United States

On December 2, 1955, in the District Court for the Territory of Alaska, Fourth Division, appellant (Andrew Pitts) and Pauline Kay Simon were indicted in six counts. On December 21,, 1955, appellant and Simon were arraigned and pleaded not guilty. On January 28, 1957, Simon withdrew her plea of not guilty and pleaded guilty. Thereafter, on January 28-31, 1957, appellant had a jury trial. At the close of all the evidence, appellant moved for a judgment of acquittal on counts 5 and 6 of the indictment. That motion was granted. Appellant then moved for a judgment of acquittal on counts 1-4. 1 That motion was denied. Thereafter the case was argued, the jury was charged, and on January 31, 1957, a verdict was rendered finding appellant guilty as charged in counts 1-4. On February 5, 1957, within the 5-day period prescribed in Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., 2 appellant made' a motion for a *810 new trial based on grounds other than newly discovered evidence. On February 20, 1957, after the expiration of the 5-day period, appellant made a motion for a new trial purportedly based on the ground of newly discovered evidence. Both motions were heard and…

(concurring).

The final paragraph of the court’s opinion gives an adequate and unanswerable reason for affirming the action of the trial court. The trial judge set forth at length why the so-called newly discovered evidence that the appellant’s courtesan and accomplice was ready to change her story again and absolve appellant was insufficient to persuade the court to take it seriously. He referred to this witness’ “utter unreliability”, her changes of her story again and again, and the fact that the verdict could not be said to be based on her testimony.

I am not quite prepared to say that the many technical defects in the motion for new trial were such that the court could not have granted it, had the judge been impressed by the offered new evidence. In recent years Criminal Rule 52(a) 1 has been given a very broad application.

For this reason I would prefer to base my concurrence on this single ground.

. “Harmless error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”

. For example, see the following cases disapproving actions of this court on the basis of this rule or of the corresponding Civil Rule 61: United…

263 F.2d 808 Andrew PITTS, Appellant, v. UNITED STATES of America, Appellee. No. 15549. United States Court of Appeals Ninth Circuit. Jan. 26, 1959, Rehearing Denied March 12, 1959. T. N. Gore, Jr., Warren William Taylor, Fairbanks, Alaska, Edgar Paul Boyko, Los Angeles, Cal., for appellant. George M. Yeager, U.S. Atty., Jay A. Rabinowitz, Asst. U.S. Atty., Fairbanks, Alaska, for appellee. Before MATHEWS, HEALY and POPE, Circuit Judges. MATHEWS, Circuit Judge. 1 On December 2, 1955, in the District Court for the Territory of Alaska, Fourth Division, appellant (Andrew Pitts) and Pauline Kay Simon were indicted in six counts. On December 21, 1955, appellant and Simon were arraigned and pleaded not guilty. On January 28, 1957, Simon withdrew her plea of not guilty and pleaded guilty. Thereafter, on January 28-31, 1957, appellant had a jury trial. At the close of all the evidence, appellant moved for a judgment of acquittal on counts 5 and 6 of the indictment. That motion was granted. Appellant then moved for a judgment of acquittal on counts 1-4. 1 That motion was denied. Thereafter the case was argued, the jury was charged, and on January 31, 1957, a verdict was rendered finding…