Print Carter O'Neal v. United States , 264 F.2d 809 ( 1959 )

RIVES, Circuit Judge.

A jury returned its verdict finding the appellant guilty of violating certain sections ¹ of the Internal Revenue Code relating to distilled spirits, and the court sentenced him to imprisonment for three years. The present submission is upon the Government’s motion to dismiss the appeal for want of timely notice of appeal.

The date of the judgment of conviction was October 16, 1958. After the jury returned its verdict, the following discourse took place between the district judge and appellant’s counsel:

“Judge Thomas: Is there anything you want to say on behalf of Mr. O’Neal?

“Mr. Johnson: At the proper time we will serve notice of appeal.

“Judge Thomas: I will sentence him now and increase his bond substantially. Is there anything you want to say Mr. O’Neal?

“Mr. Johnson: He has nothing to say.

“Judge Thomas: I have had a pre-sentence report made on you. You have bullied the people up there for years. You have got a terrible reputation as a bootlegger and everything else. It is the judgment of the Court that you be sentenced to the custody of the Attorney General for a period of three years. Now, do you want to give notice of appeal ?

“Mr. Johnson: Yes, sir.”²

On October 22, 1958, the Clerk of the District Court wrote appellant’s counsel a letter with reference to the designation of the record on appeal in which he stated: “On the 16 day of October, 1958, you filed a Notice of Appeal in the above entitled case.” The Clerk sent a copy of that letter to the United States Attorney. On the same date, the Clerk sent appellant’s counsel a copy of a letter to the Clerk of the Court of Appeals enclosing a statement of the docket entries in the case, the last of which was “Oral Notice of Appeal filed in open court on the 16 day of October, 1958.”

In brief, appellant’s two counsel insist that each of them was misled into thinking that the other had filed a written notice of appeal. They did not discover otherwise until October 31, 1958, after the United States Attorney had filed a motion for an order directing appellant to be surrendered to begin serving his sentence. On that date, October 31, 1958, a written notice of appeal from the judgment of conviction was filed and there was also filed a motion for a new trial on the grounds, among others, of newly discovered evidence. The motion for new trial was denied on November 18, 1958. On November 20, 1958, a written notice of appeal from the order denying the motion for new trial was filed. On November 26, 1958, another written notice of appeal from the judgment of conviction was filed.

The method of taking an appeal to a United States Court of Appeals is governed by Rule 37(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. That rule requires a notice of appeal to be filed with the Clerk of the District Court within ten days after the entry of the judgment or order appealed from. If a motion for a new trial has been made within the ten-day period, then an appeal from a judgment of conviction may be taken within ten days after entry of the order denying the motion. All of the parties recognize that the timely filing of notice of appeal with the Clerk of the District Court is jurisdictional and is an essential prerequisite to the perfection of an appeal.³

That requirement has been liberally construed by the courts in connection with Rule 52(a), the harmless error rule.⁴ Such liberality cannot, however, be extended so far as to authorize the Clerk to act for a defendant represented by counsel in the manner that he is required by Rule 37(a) (2) to act upon the request of one not so represented. In fact, the Clerk in his letters did not purport to be acting for the defendant. Nor can the liberality of construction extend so far as to permit the substitution of an oral notice of appeal for the filing of the written notice required by Rule 37.⁵

Rule 33 of the Federal Rules of Criminal Procedure permits a motion for new trial based on the ground of newly discovered evidence to be made “within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case.” That rule provides that a motion for new trial based on any other grounds shall be made within five days after verdict or finding of guilty or “within such further time as the court may fix during the 5-day period.”

The motion for new trial on the ground of newly discovered evidence was made within two years after final judgment and was, therefore, seasonably made. It was not, however, made within ten days after the entry of the judgment of conviction as provided in the rule relating to the time for taking an appeal. Rule 37(a) (2), Federal Rules of Criminal Procedure. To extend the time for taking an appeal, a motion for new trial must be both (a) timely made under Rule 33 and (b) made within ten days after entry of the judgment of conviction under Rule 37(a) (2). See United States v. Bertone, 3 Cir., 1957, 249 F.2d 156.

Appellant insists that if the notice of appeal was not timely filed it was through inadvertence, mistake, or excusable neglect on the part of his attorneys, from which he should be relieved under Rule 60(b), Federal Rules of Civil Procedure, 28 U.S.C.A. Perhaps the Rules of Civil Procedure may be considered when the procedure is not specifically proscribed by the Rules of Criminal Procedure. See Rule 57(b), Federal Rules of Criminal Procedure. If so, however, the governing rule is Rule 73(a), Federal Rules of Civil Procedure, which gives jurisdiction to extend the time for appeal only in the event of excusable neglect based on the failure of a party to learn of the entry of the judgment.⁶ It results that this Court has no jurisdiction of the appeal from the judgment of conviction and said appeal is therefore dismissed.

The Government makes no objection to the written notice of appeal filed November 20 from the judgment of November 18 denying the defendant’s motion for new trial. That appeal will be set for hearing in due course.

Appeal from judgment of conviction dismissed.

1 . Sections 5008(b) and 7203(4) of the Internal Itevenuo Code of 1954, 26 U.S.C.A. §§ 5008(b), 7206(4).

2 . Some confusion may have been occasioned by consideration of one of the alternative methods of appealing in criminal cases in the State Courts of Alabama, which may be in the following manner: “(a) An entry of record that defendant appeals from the judgment with or without suspension of judgment, as ho may elect, to be taken at the time of judgment rendered * * Code of Alabama 1940, Title 15, Sec. 368(a).

3 . Scott v. United States, 10 Cir., 1944, 145 F.2d 405; Lujan v. United States, 10 Cir., 1953, 204 F.2d 171; Wagner v. United States, 4 Cir., 1955, 220 F.2d 513; United States v. Bertone, 3 Cir., 1957, 249 F.2d 156.

4 . Lemke v. United States, 1953, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3; Compare Crump v. Hill, 5 Cir., 1939, 104 F.2d 36; Ward v. Atlantic Coast Line R. Co., 5 Cir., 265 F.2d 75.

5 . United States v. Isabella, 2 Cir., 1938, 251 F.2d 223.

6 . Knowles v. United States, 5 Cir., 1958, 260 F.2d 852, 854; Howard v. Local 54, etc., 7 Cir., 1953, 208 F.2d 930, 932.