This case came on to be heard upon the motion of appellee to dismiss the appeal, the record, and briefs of counsel, and it appearing that the assignments of error not presented on the original appeal herein are foreclosed by the former-judgment of this court, Fleisher v. United States, 91 F. 2d 404, petition for writ of certiorari as to the conviction under Counts 2, 3 and 4 of the indictment not having been granted by the Supreme Court of the United States, Fleisher v. United States, 302 U. S. 673, 58 S.Ct. 29, 82 L.Ed. 520; and it appearing that the fact that appellant was not present when his sentence was diminished by the District Court in compliance with the mandate of the Supreme Court in Fleisher v. United States, 302 U. S. 218, 58 S.Ct 148, 82 L.Ed. 208, in no way prejudiced his substantial rights, and no other substantial question being involved :

The motion to dismiss is sustained.