United States v. John Hitchmon, A/K/A John Ashanti, and Jessie Lee Fussell, Defendants , 587 F.2d 1357 ( 1979 )

TJOFLAT, Circuit Judge:

John Hitchmon and Jessie Lee Fussell appeal judgments of conviction for intimidating an officer of the law in violation of 18 U.S.C. § 111 (1976). These judgments were entered after their second jury trial on these charges, a motion for new trial having been granted after their first convictions were affirmed by this court. We find that we must reverse and remand for yet another trial because the court below was without jurisdiction to try and convict these defendants.

The appellants were indicted on August 14, 1975. The convictions resulting from their first trial were summarily affirmed by this court. United States v. Hitchmon, 536 F.2d 1386 (5th Cir. 1976) (unpublished opinion, 5th Cir. R. 21). The time within which the appellants were to surrender to the marshal was extended, however, pending investigation of their allegation that the Government’s witnesses had perjured themselves. A new trial was ordered on April 15, 1977 on grounds of newly discovered evidence, and on May 13 the Government filed a notice of appeal from that order. At a conference immediately preceding the start of the retrial on May 23, the following colloquy took place:

MR. MARX [defense counsel]: Lastly, Your Honor, the Government filed an appeal from your Order granting a new trial. As of this date, I have not seen a dismissal of that appeal. I just want to be sure we are not in the posture of going forward with an appeal pending.

MR. FANNING [special United States Attorney]: I have not seen [the notice of appeal]. I would have to call and find out.

THE COURT: Go right ahead. We will take a brief recess.

MR. FANNING: [The U.S. Attorney has] advised me that there was a Notice of Appeal filed. ... I was just advised that the courier is coming over from the United States Attorney’s office, or the Clerk’s office now with a dismissal of that Notice of Appeal.

THE COURT: Mr. Marx?

MR. MARX: I have nothing further, Judge, if that is the case.

THE COURT: I am prepared to call the jury panel in.

Record, vol. 6, at 16-19. Whereupon trial commenced. The motion to dismiss was not actually filed with the court until 12:14 p. m. the same day, by which time the jury had been empaneled and sworn. The motion was not acted upon until May 27, two days after the appellants had been pronounced guilty, sentenced, and taken into custody. On that date, the court entered an order granting the Government’s motion to dismiss the appeal “nunc pro tunc May 23, 1977.” Id., vol. 2, at 262 (emphasis in original). At no time had the appeal been docketed in this court.

The appellants raise a number of claims of error regarding their trial. We need only discuss the jurisdictional issue. The filing of a notice of appeal ousts the district court of jurisdiction over those aspects of the cause involved in the appeal. Kirtland v. J. Ray McDermott & Co., 568 F.2d 1166, 1169 (5th Cir. 1978); Bush v. United Benefit Fire Insurance Co., 311 F.2d 893, 894 (5th Cir. 1963) (alternative holding); 9 J. Moore, Federal Practice § 203.11, at 734 (1977); 16 C. Wright, A. Miller, E. Cooper, E. Gressman, Federal Practice and Procedure § 3949, at 358-59 (1977). The appeal is pending once the notice of appeal is filed, see Fed.R.App.P. 3, and during its pendency the district court has only a very limited power to act with respect to the matters appealed. For example, if the appeal has not been docketed, it may dismiss the appeal upon notice and motion by the appellant or upon the filing of a stipulation signed by all the parties. Fed.R.App.P. 42(a). It may not, however, proceed with plenary trial where, as here, the whole cause has been appealed.

The Government argues that the court’s order of May 27, 1977 “nunc pro tunc May 23, 1977” had the effect of dismissing its appeal prior to trial. We cannot agree. Literally translated, the latín phrase “nunc pro tunc” means “now for then.” Orders may be entered nunc pro tunc to the end that the record accurately reflect what was actually done on a previous date or to protect the parties from the consequences of delay by the court not attributable to any fault on their part.¹ As recognized long ago by the Fourth Circuit:

The rule is now well established that nunc pro tunc orders cannot operate to modify orders theretofore made or to take the place of orders intended to be made but omitted. The courts can by such orders supply omissions in the record of what was actually done in the cause at a former time when it was under consideration, and by mistake or neglect not entered in the clerk’s minutes or the court’s records; but where the court has omitted to make an order which it could have made, and in fact intended to make, it cannot subsequently make the same nunc pro tunc, so as to make it binding upon the parties to the suit from the date when it was so intended to have been entered; and especially is this so in matters relating to criminal proceedings and those involving rules for contempt.

Ex parte Buskirk, 72 F. 14, 20-21 (4th Cir. 1896) (citations omitted) (emphasis added). In this case, the U.S. Attorney may have intended to move for dismissal of the appeal prior to trial, and the court may have intended to grant the motion at that time, but neither of these actions was actually taken. On this record, the court’s May 27 order can be given no nunc pro tunc effect. Accordingly, the court was without jurisdiction to try and convict these defendants.²

REVERSED AND REMANDED.

1 . As to the latter point, see, e.g., Mitchell v. Overman, 103 U.S. 62, 64-65, 26 L.Ed. 369 (1880) (entry of judgment nunc pro tunc upheld where plaintiff had died after the case was argued and submitted to lower court but before actual rendition of judgment).

2 . Ordinarily, the granting of a motion for new trial is not an appealable order. See United States v. Sisson, 399 U.S. 267, 289-92 & n.20, 90 S.Ct. 2117, 2129-31, 26 L.Ed.2d 608 (1970); United States v. Bendicks, 439 F.2d 1120 (5th Cir. 1971); Oksanen v. United States, 362 F.2d 74, 77 (8th Cir. 1966). It has been held in civil cases that an appeal that is clearly defective, either because of untimeliness or because taken from an unappealable order, does not divest the district court of jurisdiction. Ruby v. Secretary of United States Navy, 365 F.2d 385, 389 (9th Cir. 1966), cert. denied, 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442 (1967); Turner v. HMH Publishing Co., 328 F.2d 136 (5th Cir. 1964). Assuming, without deciding, that this rule applies equally to criminal appeals, it would not apply to this case. The primary rationale for the rule is to deter abuse of the appeal right by preventing a party from interrupting his opponent’s entitlement to continuing trial court jurisdiction by filing a premature appeal. Kirtland v. J. Ray McDermott & Co., 568 F.2d 1166, 1170 n.7 (5th Cir. 1978). No such abuse appears here, nor did the district court purport to proceed on the basis that the appeal was premature.