United States v. Roth

286 F.2d 635

• Court: Court of Appeals for the Second Circuit
• Decided: January 26, 1961
• Docket: No. 47, Docket 25926
• Status: Published

Opinion

PER CURIAM.

In the light of the facts set forth in Roth’s motion verified December 27,1960, and the reply letter of the United States Attorney dated January 5, 1961, our order of November 23, 1960 in which we dismissed Roth’s appeal on the ground of mootness, is hereby vacated.

Coming then to the merits of Roth’s present appeal, we agree with Judge Cashin that the facts set forth in the moving papers below, as distinguished from assertions of conclusion or suspicion, are insufficient to impeach the original conviction or to warrant a new trial. Accordingly, whether the motion below be deemed one brought under 28 U.S.C. § 2255 or one in the nature of a writ of coram nobis, its denial by the order below is

Affirmed.