United States v. Robinson, 16

• Decision Date: 11 January 1960
• Docket Number: No. 16,16
• Citation: 80 S.Ct. 282,4 L.Ed.2d 259,361 U.S. 220
• Parties: UNITED STATES, Petitioner, v. Troyit ROBINSON et al
• Court: U.S. Supreme Court

361 U.S. 220

80 S.Ct. 282

4 L.Ed.2d 259

UNITED STATES, Petitioner,

v Troyit ROBINSON et al.

No. 16.

Argued Dec. 8, 1959.

Decided Jan. 11, 1960.

Miss Beatrice Rosenberg, Washington, D.C., for petitioner.

Mr. I. William Stempil, Washington, D.C., for respondents.

Mr. Justice WHITTAKER delivered the opinion of the Court.

Respondents were indicted for murder in the District Court for the District of Columbia, and upon a trial were found guilty by a jury of the lesser included offense of manslaughter. After their motions for a new trial were considered and denied, the court entered judgment of conviction on May 7, 1958. Twenty-one days thereafter, on May 28, respondents separately filed in the District Court their notices of appeal. On the same day they each asked, and were granted by the District Court, leave to prosecute their appeals in forma pauperis. On June 30, the Government moved the Court of Appeals to dismiss respondents' appeals for want of jurisdiction, because their notices of appeal were not filed within 10 days after entry of the judgment. In opposition to the motion, affidavits of respondent Travit Robinson, and of counsel for both respondents, were filed in the Court of Appeals. They tended to show that the late filing of the notices of appeal was due to a misunderstanding as to whether the notices were to be filed by respondents themselves or by their counsel.¹

The Court of Appeals, one judge dissenting, held that the notices of appeal, although filed 11 days after expiration of the time prescribed in Rule 37(a)(2) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.,² were sufficient to confer jurisdiction of the appeals if the District Court actually had found, under Rule 45(b), that the failure to file the notices of appeal within 10 days after entry of the judg- ment 'was the result of excusable neglect.' Being unable to determine from the record whether the District Court had so found, the Court of Appeals, on October 2, remanded to the District Court 'for supplementation of the record' on that score, meanwhile holding in abeyance the Government's motion to dismiss. On October 8, the District Court 'ordered that the record reflect that the appeals were allowed and failure to act was due to excusable englect under Rule 45(b) of the Federal Rules of Criminal Procedure.' On November 5, the Court of Appeals en banc, two judges dissenting, denied the Government's petition for rehearing, 104 U.S.App.D.C. 200, 260 F.2d 718. Because of the importance of the question to the proper and uniform administration of the Federal Rules of Criminal Procedure, we granted certiorari. 358 U.S. 940, 79 S.Ct. 347, 3 L.Ed.2d 348.

The single question presented is whether the filing of a notice of appeal in a criminal case after expiration of the time prescribed in Rule 37(a)(2) confers jurisdiction of the appeal upon the Court of Appeals if the District Court, proceeding under Rule 45(b), has found that the late filing of the notice of appeal was the result of excusable neglect.

There being no dispute about the fact that the notices of appeal were not filed within the 10-day period prescribed by Rule 37(a)(2),³ the answer to the question presented depends upon the proper interpretation of Rule 45(b). It provides:

'Enlargement. When an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice, order the period enlarged if application therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion permit the act to be done after the expiration of the specified period if the failure to act was the result of excusable neglect; but the court may not enlarge the period for taking any action under Rules 33, 34 and 35, except as otherwise provided in those rules, or the period for taking an appeal.'

In interpreting that Rule, the Court of Appeals took the view that, although (104 U.S.App.D.C. 200, 260 F.2d 419) 'the District Court has no authority to grant a greater period than ten days for taking an appeal, it may, however, if satisfied that the failure to note an appeal within ten days is excusable, permit late filing.' It thought that there was 'ample justification in reason for different treatment of pre-expiration and post-expiration applications'; that if a defendant 'can make a timely application for an extension of time, he can readily and with less effort file the notice of appeal itself.' But if, 'for some cause amounting legally to 'excusable neglect' the party fails to take any action during the prescribed time, the rule seems plainly to allow the District Court discretion to permit him to file a late notice of appeal.' It thought that so doing would not be to 'enlarge' the period for taking an appeal, but rather would be only to 'permit the act to be done' after expiration of the specified period. This conclusion has, at least, enough surface plausibility to require a detailed examination of the language, judicial interpretations, and history of Rule 45(b) and the related Federal Rules of Criminal Procedure.

On its face, Rule 45(b) appears to be quite plain and clear. It specifically says that 'the court may not enlarge * * * the period for taking an appeal.' We think that to recognize a late notice of appeal is actually to 'enlarge' the period for taking an appeal. Giving the words of 45(b) their plain meaning, it would seem that the conclusion of the Court of Appeals is in direct conflict with that Rule. No authority was cited by the Court of Appeals in support of its conclusion, nor is any supporting authority cited by respondents here. The Government insists, it appears correctly, that there is no case that supports the Court of Appeals' conclusion. Every other decision to which we have been cited, and that we have found, holds that the filing of a notice of appeal within the 10-day period prescribed by Rule 37(a)(2) is mandatory and jurisdictional.⁴

It is quite significant that Rule 45(b) not only prohibits the court from enlarging the period for taking an appeal, but, by the same language in the same sentence, also prohibits enlargement of the period for taking any action under Rules 33, 34 and 35, except as provided in those Rules. That language is: '* * * but the court may not enlarge the period for taking any action under Rules 33, 34 and 35, except as otherwise provided in those rules, or the period for taking an appeal.' If, as the Court of Appeals has held, the delayed filing of a notice of appeal—found to have resulted from 'excusable neglect'—is sufficient to confer jurisdiction of the appeal, it would consistently follow that a District Court may, upon a like finding, permit delayed filing of a motion for new trial under Rule 33,⁵ of a motion in arrest of judgment under Rule 34,⁶ and the reduction of sentence under Rule 35,⁷ at any time months or even years—after expiration of the periods specifically prescribed in those Rules.

This is not only contrary to the language of those Rules, but also contrary to the decisions of this Court. In United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610, it was held that the power of the District Court sua sponte to grant a new trial under Rule 33 is limited to the time fixed in that Rule. There, quite like here, it was argued 'that because the literal language of the Rule places the five-day limit only on the making of the motion (for a new trial), it does not limit the power of the court later to grant (a new trial) * * *.' 331 U.S., at page 473, 67 S.Ct. at page 1332. This Court rejected the contention that such power 'lingers on indefinitely,' and pointed out that the Rules, in abolishing the limitation based on the Court Term, did not substitute indefiniteness, but prescribed precise times within which the power of the courts must be confined. 331 U.S. at page 474, 67 S.Ct. at page 1333. See also Marion v. United States, 9 Cir., 171 F.2d 185; Drown v. United States, 9 Cir., 198 F.2d 999. The same rule must apply with respect to the time within which a motion in arrest of judgment may be filed under Rule 34. Similarly, it has been held that a District Court may not reduce a sentence under Rule 35 after expiration of the 60-day period prescribed by that Rule regardless of excuse. United States ex rel. Quinn v. Hunter, 7 Cir., 162 F.2d 644. Cf. Affronti v. United States, 350 U.S. 79, 76 S.Ct. 171, 100 L.Ed. 62.

The right of appeal in criminal cases in federal courts is of relatively recent origin. Carroll v. United States, 354 U.S. 394, 400, 77 S.Ct. 1332, 1336, 1 L.Ed.2d 1442. By the Act of February 24, 1933, 47 Stat. 904 (now 18 U.S.C. § 3772) 18 U.S.C.A. § 3772, Congress first gave this Court authority to promulgate rules regulating the time and manner for taking appeals in criminal cases. One of the principal purposes was to eliminate delays in such appeals. H.R.Rep. No. 2047, 72d Cong., 2d Sess., to accompany S. 4020. The first Criminal Appeals Rules promulgated under that Act were the 13 Rules effective September 1, 1934. 292 U.S. 661 670. Rule III provided a 5-day time limit for the taking of an appeal from a judgment of conviction. It was uniformly held that Rule III was mandatory and jurisdictional, and appeals not taken within that time appear always to have been dismissed regardless of excuse.⁸

From this review, it would seem that there is nothing in the language of Rule 45(b), or in the judicial interpretations of that Rule or its predecessor, which supports the conclusion of the Court of Appeals. We turn, then, to the history of Rule 45(b) to see whether any support for the court's conclusion can be found in that source.

Under the Act of June 29, 1940, 54 Stat. 688, as amended (now 18 U.S.C. § 3771, 18 U.S.C.A. § 3771), this Court was authorized to prescribe Rules of Criminal Procedure to and including verdict, which would become...