On March 24, 1965, a jury in a federal district court found petitioner guilty of violating the Mann Act, 18 U. S. C. § 2421 (1964 ed.), and a formal judgment was entered against him on the same day. Nine days later,
*60
on April 2, 1965, a new trial motion was filed by petitioner’s counsel alleging various errors at trial. Since Fed. Rule Crim. Proc. 33 expressly requires that a new trial motion not based on newly disсovered evidence be filed within five days of the verdict, petitioner’s motion was untimely and the District Court denied it on April 5, 1965. On April 12, 1965, seven days after the denial of the motion and 19 days after the judgment, petitioner through counsel filed a notice of aрpeal from his conviction. The Court of Appeals for the Sixth Circuit dismissed the appeal as untimely, a ruling in accord with the views of several other circuits but in cоnflict with those of the Tenth Circuit. Compare,
e. g., United States
v.
Bertone,
Federal Rule of Criminal Procedure 37 (a)(2), entitled “Time for Taking Appeal,” provides in relevant part that “[a]n appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from, but if a motion for a new trial or in arrest of judgment has been made within the 10-day рeriod an appeal from a judgment of conviction may be taken within 10 days аfter entry of the order denying the motion.” Plainly petitioner’s appeal was timеly if this Rule is literally read since the appeal was filed within 10 days after denial of а new trial motion itself filed within 10 days of the judgment of conviction. To the contrary, the Gоvernment argues that a new trial motion, not based on newly discovered evidenсe, filed more than five days *61 after the verdict and so destined to be rejectеd as untimely under R.ule 33 should not serve to give defendant an extension of time to aрpeal since there is no possibility the appeal will be avoided by a grаnt of the motion. Further support is found by the Government in a number of courts of apрeals’ decisions adopting this view, in the history of Rule 37 (a)(2), and in a very recent amеndment to that Rule which plainly adopts the Government’s basic approach for the future. *
We believe competing interests outweigh the Government’s arguments. The literal language of Rule 37 (a) (2) sustains petitioner and even a perceрtive reading of Rules 33 and 37 (a)(2) together would not dispel all doubt. A criminal appeal is at stake and under Fed. Rule Crim. Proc. 45 (b) the period for taking it may not be extended, while the rare and relatively brief delay in appeal allowed by petitioner’s construction causes very little injury to the Government. In these circumstances a reading that departs from the literal terms of Rule 37 (a)(2) by constricting the opрortunity to appeal seems to us inappropriate. Because оf our disposition we need not consider a suggestion by the Government, apparently not made to or passed on by the Court of Appeals in this case but first tentatively raised after the *62 grant of certiorari and only later pressed upon us in оral argument, that on the present facts a motion for bail bond filed by petitioner nine days after his conviction may do unintended service as a notice of appeal.
Reversed and remanded.
Notes
The amendment, apprоved by the Court on February 28, 1966, and absent disapproval by Congress effective on July 1, 1966, pertinently provides: “If a timely motion in arrest of judgment or for a new trial on any ground othеr than newly discovered evidence has been made, an appeal frоm a judgment of conviction may be taken within 10 days after the entry of the order denying thе motion.” (Emphasis added.) Thus the effect of the amendment is to embrace prospectively the Government’s view of the interrelationship between Rules 33 and 37 (a)(2). A contemporaneous amendment to Rule 33 would extend the time for filing a new trial motion from five to seven days.