Staley, Chief Judge, and McLaughlin and Kalodner, Circuit Judges.
Following a jury trial in June, 1964, defendant was found guilty and sentenced to a 10-year prison term for violation of 18 U.S.C.A. Sections 2 and 2113 upon an indictment which charged him, Bryant T. Hutchins and Jeffrey D. Bujese with robbing the Valley Savings and Loan Association "in the State and District of New Jersey" on July 8, 1963. Defendant filed a timely notice of appeal on August 7, 1964. On June 11, 1965 we entered an Order granting defendant's motion to remand the record to the United States District Court for the District of New Jersey for the purpose of filing a motion for a new trial. Our Order provided in terms that jurisdiction of the appeal would be retained "upon the conditions that if a new trial is denied by the District Court the proceedings subsequent to the remand shall not be involved in this appeal, and that if a new trial is granted the appeal * * * shall be dismissed".
Thereafter, the defendant filed a motion for a new trial in the District Court on August 10, 1965. It was denied, after hearing, on February 15, 1966 and a motion for reconsideration was denied on March 31, 1966. On May 13, 1966 we denied the defendant's petition to modify our Order of June 11, 1965 so as to permit the defendant to include in his pending appeal the District Court's denial of a new trial.
On May 19, 1966 the defendant appealed from the District Court's Order of March 31, 1966. On June 10, 1966 we entered an Order adjudging the May 19, 1966 appeal to have "no effect in conferring jurisdiction upon this court to review the order denying a new trial" for the reason that it had not been filed within the 10-day period provided by Rule 37(a) (2) of the Federal Rules of Criminal Procedure.
On July 19, 1966 -- almost two years after defendant's initial notice of appeal of August 7, 1964 -- defendant's court-appointed counsel filed "Brief for Appellant". The defendant has been incarcerated since his conviction on June 23, 1964 since he has been unable to provide the $25,000 bail set by the District Court. In view of the defendant's election not to serve his sentence, the time he has been incarcerated will not be credited on his 10-year sentence.
The defendant's appeal from his original conviction was argued by his court-appointed counsel on September 12, 1966. At that time we were again requested to review the District Court's denial of the defendant's motion for a new trial in disregard of our earlier stated Orders limiting the scope of our consideration to alleged errors in his original conviction. In support of his request defendant urged that his court-appointed counsel had failed to timely file an appeal from the District Court's denial of his motion for a new trial on the remand and that he should not suffer the consequence of that failure. Leave was granted to the defendant to file a supplemental brief on that score. The supplemental brief was filed on September 23, 1966 and the Government's supplemental reply brief was filed on October 5, 1966.
Since it appears that the failure to file a timely appeal from the District Court's denial of the defendant's motion for a new trial was due to regrettable error on the part of his court-appointed counsel we have considered the defendant's contention with respect to the denial.
We are of the opinion that the points presented by the defendant on the appeal from his conviction are without merit, and that the District Court did not err in denying the defendant's motion for a new trial.
In a four-count indictment returned December 18, 1963, the defendant, his brother Jeffrey D. Bujese and Bryant T. Hutchins, were charged with robbing the federally-insured Valley Savings and Loan Association, on July 8, 1963 "in the State and District of New Jersey," and with committing an assault upon Esther Herrick, a teller employed by the Association, by using a pistol in the course of the robbery.
The three men were arraigned on January 3, 1964. Donald R. Conway, Esq. of the firm of Lucchi and Conway, appeared as their counsel and entered pleas of not guilty as to all three. Thereafter, on March 25, 1964, Lucchi and Conway applied to the District Court to be relieved as counsel for the defendant for failure to pay counsel fees and permission to do so was granted on April 7, 1964.
On June 8, 1964 Herbert Koransky, Esq. filed his appearance for the defendant pursuant to his appointment by the District Court.
On June 17, 1964 the defendant's brother Jeffrey asked for and received a severance. On the same day, Hutchins withdrew his plea of not guilty and pleaded guilty. The defendant was placed on trial on June 18, 1964. Koransky represented him at that trial. Hutchins and Miss Herrick testified as to the defendant's participation in the robbery. Hutchins said that he and the defendant "robbed the bank"; he was armed with a.32 revolver; the proceeds of the robbery "was split up" and that he gave the defendant "a third of it". Miss Herrick testified that when the defendant and Hutchins entered the bank "they had sunglasses on"; Hutchins "pulled out a gun" and said "this is a hold-up -- we want your money"; she gave Hutchins the money which was in a drawer; the defendant pulled out another drawer which was empty and he then told her to unlock a cash box in the vault and after ...