Submitted on Petition and Answer.
Van Dusen and Rosen, Circuit Judges, and Layton, District Judge.
VAN DUSEN, Circuit Judge.
This case is before the court on Petition For A Writ of Mandamus to compel the district court to vacate an order granting a new trial in a criminal case on the basis that this order was entered not for reasons in defendant's timely New Trial Motion but on grounds raised by the district court months after such motion, and Answer to such Petition.*fn1
Defendant filed a Motion for New Trial promptly after the jury returned its verdict of guilty, alleging 14 reasons for new trial, and three months later argument was heard on this Motion. Approximately 4 1/2 months later, the district court entered an order providing, inter alia:
". . . the Court being of opinion that the case was ably tried by competent counsel and involved mainly questions of credibility of the sort appropriate for determination by the jury in the exercise of its traditional factfinding function, and that the points urged by defendant in support of a new trial are without merit, . . . but being also of opinion that the defendant may have been harmed by the Court's injudicious indulgence in 'witty diversities,' and that a new trial would involve no substantial delay or additional burden to the prosecution, since most of the same evidence will have to be repeated anyhow in trying the co-defendant Gaca, and that it may be advantageous to the due administration of justice to have the whole picture and the respective roles of each participant clearly placed before a single jury, as was originally intended before the attorney for defendant Newman, then representing both defendants, developed the possibility of a conflict of interests;
"It is ordered that said motion be and the same hereby is granted and a new trial awarded."
Rule 33 of the Rules of Criminal Procedure provides:
"The court on motion of a defendant may grant a new trial to him if required in the interest of justice. . . . A motion for a new trial . . . shall be made within seven days after verdict or finding of guilty. . . .
The amendment to this rule, which became effective July 1, 1966, inserted the words "on motion of a defendant" in the above language and the Advisory Committee on Criminal Rules of the Judicial Conference of the United States stated in its comments on the change:
"The amendments . . . make it clear that a judge has no power to order a new trial on his own motion, that he can act only in response to a motion timely made by the defendant."
At the same time that these amendments were made to the federal criminal rules precluding the district court from granting a new trial on its own motion, that court's power to grant a new trial in civil cases was specifically expanded in F.R.Civ.P. 59(d) to permit a new trial to be granted for "a reason not stated in the motion."*fn2 It would seem clear that the drafters of the Federal Rules (Committee on Rules of Practice and Procedure of the Judicial Conference of the United States) would have inserted comparable language in the Criminal Rules if it had been intended that the district court should have the power to grant a new trial for its own reason not stated in the motion for new trial, which power the nominal respondent exercised in this case. In order for the court to act "on motion of a defendant," the reasons in support thereof must be filed within seven days after verdict (Federal Rules of Criminal Procedure 33 and 45(b) (2)*fn3) and be stated in writing (Federal Rule of Criminal Procedure 47).
At least four district court opinions in this Circuit have held that the reasons relied on by the district court in support of the grant of a motion for new trial must be filed within the seven-day period prescribed in Rule 33 as quoted above, unless there has been an order entered within that period extending the time. See United States v. Kane, 319 F. Supp. 527, 528 (E.D.Pa.1970), aff'd 433 F.2d 337 (3d Cir. 1971); United States v. Kramer, 172 F. Supp. 288, 289 n. 2 (W.D.Pa.1959), aff'd 279 F.2d 754, (3d Cir. 1960), cert. denied, 364 U.S. 879, 81 S. Ct. 167, 5 L. Ed. 2d 101 (1960); United States v. Stirone, 168 F. Supp. 490, 501-502 (W.D.Pa.1957), aff'd 262 F.2d 571, 578 (3d Cir. 1959), reversed on other grounds, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960); United States v. McCurry, 146 F. Supp. 109, 111 (E.D.Pa.1956), aff'd 248 F.2d 116 (3d Cir. 1957). In ...