772 F.2d 1496 (9th Cir. 1985), 84-3730, Yasui v. United States
|Citation:||772 F.2d 1496|
|Party Name:||Minoru YASUI, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.|
|Case Date:||October 04, 1985|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued May 7, 1985.
Submitted May 29, 1985.
Peggy Nagae, Eugene, Or., Clayton C. Patrick, Salem, Or., for petitioner-appellant.
Victor D. Stone, Dept. of Justice, Washington, D.C., for respondent-appellee.
Appeal from the United States District Court for the District of Oregon.
Before KILKENNY, WALLACE, and SNEED, Circuit Judges.
SNEED, Circuit Judge:
Defendant-petitioner Minoru Yasui appeals from an order of the district court vacating his conviction, dismissing his indictment, and dismissing his petition for a writ of error coram nobis. We hold that the appeal is untimely and remand the case to the district court for a determination of whether the time for appeal should be extended because of excusable neglect.
On April 22, 1942, Minoru Yasui was indicted in the United States District Court for the District of Oregon under the Act of March 21, 1942, Pub.L. No. 77-503, 56 Stat. 173, for violating a wartime curfew order. The curfew order, Public Proclamation No. 3 of the Western Defense Command, 7 Fed.Reg. 2543 (1942), was issued by General John L. DeWitt on March 24, 1942, and required all persons of Japanese ancestry in certain far western states to be in their homes between the hours of 8:00 PM and
6:00 AM. On November 16, 1942, Yasui was convicted and sentenced to one year in prison and a $5,000 fine. United States v. Yasui, 48 F.Supp. 40 (D.Or.1942). The United States Supreme Court affirmed the conviction, but remanded the case to the district court for resentencing. Yasui v. United States, 320 U.S. 115, 63 S.Ct. 1392, 87 L.Ed. 1793 (1943). On remand the sentence was reduced to 15 days imprisonment. United States v. Yasui, 51 F.Supp. 234 (D.Or.1943).
On February 1, 1983, Yasui petitioned the district court for a writ of error coram nobis. He alleged that the government had suppressed and manipulated evidence in order to create the false impression of a serious wartime threat from Japanese Americans. In his petition he requested that the district court declare unconstitutional the curfew order that he had been convicted of violating and that the court dismiss his indictment and vacate his conviction based on a new consideration of the evidence.
In response to Yasui's petition, the government moved to dismiss Yasui's indictment, vacate his conviction, and dismiss his petition for writ of error coram nobis. Yasui opposed the government's motion. He claimed that he was entitled to a finding that his constitutional rights had been violated, and he argued that a simple dismissal of his indictment and vacation of his conviction without such a finding provided him insufficient relief. On January 26, 1984, the district court granted the government's motion. 1
On March 2, 1984, Yasui filed in this court a Notice of Appeal of the district court's order. On June 25, 1984, the government moved to dismiss the appeal as untimely.
The time allowed for filing a notice of appeal differs between civil and criminal cases. Under Rule 4(a) of the Federal Rules of Appellate Procedure, a notice of appeal in a civil case to which the United States is a party must be filed within 60 days after the date of entry of the judgment or order appealed from. Under Rule 4(b), a notice of appeal by the defendant in a criminal case must be filed within 10 days. The district court may, however, "[u]pon a showing of excusable neglect," extend the time for filing a notice of appeal in a criminal case for up to an additional 30 days.
Yasui filed his notice of appeal 36 days after the entry of the district court's order granting the government's motion and dismissing his petition. He did not request...
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