United States v. Hirsch, Steven ( 2000 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 99-2304
    United States of America,
    Plaintiff-Appellee,
    v.
    Steven Hirsch,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Southern District of Illinois.
    No. 4:96CR40094-002--J. Phil Gilbert, Chief Judge.
    Submitted October 1, 1999--Decided March 23,
    2000
    Before Easterbrook, Ripple, and Kanne,
    Circuit Judges.
    Easterbrook, Circuit Judge. Following a
    guilty plea to drug-related crimes,
    Steven Hirsch was sentenced to 157
    months’ imprisonment. The sentence was
    pronounced on January 29, 1999, and
    docketed on February 3, 1999; any appeal
    was due by February 16. Fed. R. App. P.
    4(b). (February 13 was a Saturday, and
    Monday, February 15, was a holiday.) A
    notice of appeal was filed on May 21,
    1999, more than three months late.
    Counsel’s explanation for this delay, if
    true, is shocking. After imposing
    sentence, a federal judge must inform the
    defendant of his right to appeal and must
    offer an opportunity to have the clerk of
    court file a notice of appeal on
    defendant’s behalf. Fed. R. Crim. P.
    32(c)(5). Hirsch’s lawyer has stated
    that, when asked whether the clerk should
    file an appeal on his behalf, Hirsch
    answered yes. But the clerk did nothing,
    and by the time counsel realized this it
    was too late.
    This is shocking for at least two
    reasons. One is the clerk’s failure to
    perform a ministerial act whose omission
    could have serious adverse consequences
    for a criminal defendant. The other is
    counsel’s failure to ensure that a notice
    of appeal was filed. Defendants have 10
    days to appeal, with an extension to 40
    days available for "excusable neglect or
    good cause". Fed. R. App. P. 4(b)(4). The
    clerk’s failure would have been "good
    cause" for counsel to file a belated
    appeal, so all counsel had to do was
    check the docket any time within 40 days-
    -but Hirsch’s lawyer did not take that
    simple precaution. The absence of a
    docketing notice from this court would
    have put a prudent lawyer on guard. Both
    the Rules of Appellate Procedure and the
    Circuit Rules impose duties on counsel
    that begin with the notice of appeal. For
    example, the appellant’s lawyer must file
    a docketing statement within seven days
    after the notice of appeal. Circuit Rule
    3(c)(1). An appellant must order any
    relevant transcript within 10 days of the
    notice of appeal. Fed. R. App. P.
    10(b)(1). In this circuit, the
    appellant’s brief is due 40 days after
    the appeal is docketed, Circuit Rule
    31(a), so counsel must ascertain the
    docketing date. Had Hirsch’s lawyer taken
    any steps to comply with these rules, he
    would have learned that no notice of
    appeal had been filed. But for
    approximately 100 days after Hirsch’s
    sentencing, his lawyer did nothing.
    Not until May 20, 1999, did Hirsch’s
    lawyer (Douglas A. Forsyth, of St. Louis,
    Missouri) bestir himself on behalf of his
    client. On May 20 he filed in the
    district court a motion for permission to
    take an untimely appeal; the next day
    Forsyth filed a notice of appeal. On June
    11 the district judge entered an order
    granting Forsyth’s motion and stating
    that "the May 21, 1999, Notice of Appeal
    is deemed timely." That decision is
    ineffectual. Appellate Rule 4(b)(4)
    provides that a district court may
    "extend the time to file a notice of
    appeal for a period not to exceed 30 days
    from the expiration of the time otherwise
    prescribed by this Rule 4(b)." Rule
    26(b)(1) adds that a district court lacks
    power to extend the time for a notice of
    appeal, except to the extent provided in
    Rule 4. Thus the maximum lawful extension
    would have been to March 15, 1999, a date
    long gone when Forsyth asked for extra
    time. (The outer limit is March 15,
    rather than March 18, because the extra
    days added to an original period that
    ends on a weekend or holiday are not
    tacked onto the extension period.)
    When purporting to grant Forsyth
    additional time to file a notice of
    appeal, the district court did not make
    findings of fact concerning Forsyth’s
    assertion that Hirsch asked the clerk to
    file a notice of appeal on his behalf. If
    such a request was made, then the
    district court needs to change its
    procedures to ensure compliance with Rule
    32(c)(5). Failure to file a notice of
    appeal, after the defendant so requests
    in open court, is rare and may be unique;
    we have been unable to find any other
    case in which judges have had to ponder
    how to proceed when the clerk does not
    carry out that mechanical step. One
    possibility would be to declare that what
    should have been done will be treated as
    done; then we would proceed as if a
    notice of appeal had been filed on
    January 29, 1999. That approach would
    protect defendants from bureaucratic
    errors, but it could not be reconciled
    with the Rules of Appellate Procedure,
    which require an actual notice of appeal
    rather than a virtual one, or with the
    principle that a timely notice of appeal
    is essential to appellate jurisdiction.
    Browder v. Director, Department of
    Corrections, 
    434 U.S. 257
    , 264 (1978).
    Treating as done whatever should have
    been done would demolish the Rules’
    timetables. It would, for example, treat
    a client’s request to his lawyer to file
    a notice of appeal as getting the appeal
    under way, whether the lawyer filed the
    notice or not. Even limiting the approach
    to public officials would require many
    rules and doctrines to be rewritten.
    Consider, for example, Fed. R. Crim. P.
    29(c), which limits to seven days the
    time a defendant has to file a motion for
    acquittal (and also limits the period
    within which the judge may extend that
    time). Carlisle v. United States, 
    517 U.S. 416
     (1996), holds that the court
    lacks authority to grant a motion filed
    one day late, even on the assumption that
    it should have been filed earlier and
    that the delay did not cause prejudice. A
    principle that the court will treat a
    motion (or notice of appeal) as filed
    when it should have been filed would
    require a different outcome in Carlisle
    and many similar cases. Even the "unique
    circumstances doctrine," an approach that
    treats some steps in the appellate
    process as if they had been done on time,
    applies only when a court expressly
    assures counsel or a litigant that a step
    has been taken correctly, Osterneck v.
    Ernst & Whinney, 
    489 U.S. 169
    , 178-79
    (1989), and no express assurance is
    evident here.
    Unsettling as it is to disadvantage
    Hirsch because of what may have been a
    clerical error, we have no choice but to
    dismiss this appeal. But just as in
    United States v. Marbley, 
    81 F.3d 51
     (7th
    Cir. 1996), dismissal does not bring
    proceedings to a close; quite the
    contrary. Strict enforcement of a rule
    meant to expedite appellate resolution
    will breed delay, for Hirsch is not out
    of options. He may now file a motion
    under 28 U.S.C. sec.2255, contending that
    Forsyth’s failure to ensure that the
    clerk followed through deprived Hirsch of
    the assistance of counsel guaranteed by
    the sixth amendment. See Roe v. Flores-
    Ortega, 
    68 U.S.L.W. 4132
     (U.S. Feb. 23,
    2000); United States v. Nagib, 
    56 F.3d 798
     (7th Cir. 1995); Castellanos v.
    United States, 
    26 F.3d 717
     (7th Cir.
    1994). If the district court finds that
    Forsyth was asleep on the job, then the
    court must vacate the judgment and
    reimpose the sentence to permit an
    appeal.
    Of course, the judge cannot overlook the
    possibility that Hirsch did not make a
    timely request for an appeal on his
    behalf. If he did not make a request in
    open court, or to counsel within 10 days,
    then relief is not available under
    sec.2255. See United States v. Nagib, 
    44 F.3d 619
     (7th Cir. 1995); United States
    v. Mosley, 
    967 F.2d 242
     (7th Cir. 1992).
    The transcript of the sentencing
    proceedings, which was prepared at our
    request, does not jibe with
    Forsyth’srepresentations to the district
    court (or to us). The district judge
    informed Hirsch: "If you so request, a
    notice of appeal will be docketed by the
    clerk at this time. Do you understand
    that?" Hirsch answered "yes" but did not
    go on to make the request. If the
    transcript is in error and Hirsch did
    make a timely request in open court, or
    if he asked Forsyth within 10 days to
    file an appeal, then Hirsch has received
    ineffective assistance of counsel. But if
    there was no request within 10 days in or
    out of court, then Hirsch cannot change
    his mind later and blame his lawyer. See
    Flores-Ortega, 68 U.S.L.W. at 4133-35.
    We observed in Marbley that this multi-
    step process poorly serves the interests
    of both defendants and the judicial
    system. We are sending this opinion to
    the Judicial Conference’s Standing
    Committee on Rules of Practice and
    Procedure so that the bodies charged with
    proposing changes to the federal rules
    may consider whether it would be prudent
    to amend either Criminal Rule 32(c)(5) or
    Appellate Rule 4(b)(4) to provide for the
    possibility that the clerk will fail to
    comply with a request to file a notice of
    appeal. Perhaps it would be beneficial to
    amend Appellate Rule 4(b)(4) to provide
    that an appeal is timely if, within 10
    days after being sentenced, a criminal
    defendant informs either court or counsel
    of his desire to appeal. Our function
    today, however, is not to draft new rules
    but to implement the rules as they exist.
    Under those rules, Hirsch’s appeal must
    be dismissed for want of jurisdiction.