BINION v. UNITED STATES

PER CURIAM.

This is a motion to dismiss an appeal from an order or warrant of removal issued pursuant to Rule 40(b)(3) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., providing for removal in cases where the prosecution is by indictment. We have recently held in Meltzer v. United States, 9 Cir., 188 F.2d 916, that an order of removal in such cases is not appealable. In any event, in light of the mandatory provision of the Rule referred to, the appeal is frivolous and is subject to dismissal on that ground.

The appeal is accordingly dismissed.