452
Stevens, J., dissenting
ground that afforded district courts a greater measure of discretion. Ibid.; see also United States v. Anguilo, 755 F. 2d 969, 972 (CA1 1985) (Breyer, J.). Given that Justice Harlan also authored Link, which holds that a procedural rule permitting a dismissal on motion does not preclude a dismissal without motion, I doubt that the majority's attempt to distinguish Fernandez would have been persuasive to its author.
Our decision in United States v. Smith, 331 U. S. 469 (1947), is consistent with our prior cases holding that permissive rules do not withdraw pre-existing inherent powers.10
Although the majority contends that Smith supports the inference that the draftsmen of Rule 29 intended to limit the court's authority to take action in response to a timely motion by counsel, that case actually supports the proposition that the adoption of the Federal Rules of Criminal Procedure did not modify the pre-existing power of the district court to set aside an erroneous judgment while it retains jurisdiction of a case.
The error committed by Judge Smith was his attempt to assert jurisdiction in a criminal case after the judgment of conviction had been affirmed on appeal and even after the defendant had started to serve his sentence. There was not even an arguable basis for suggesting that the judge then had jurisdiction to order a new trial. Id., at 474; see United States v. Mayer, 235 U. S. 55, 70 (1914).11 The only theory that might have justified his action was his lawyer's argument that the Rules had expanded the District Court's jurisdiction beyond the end of the term of court in which the trial
10 That is not to say that permissive rules establish inherent powers. For that reason, the majority's recitation of various permissive rules for which no analogous inherent power exists is quite beside the point. Ante, at 431-432.
11 As the Court pointed out in United States v. Smith, 331 U. S. 469 (1947), new trial orders are particularly problematic because they raise serious double jeopardy concerns. Of course, no such concerns are present here.
Page: Index Previous 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 NextLast modified: October 4, 2007