U.S. v. Patel, 86-3062

• Decision Date: 10 December 1987
• Docket Number: No. 86-3062,86-3062
• Citation: 835 F.2d 708
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bina PATEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 708

835 F.2d 708

UNITED STATES of America, Plaintiff-Appellee, v. Bina PATEL, Defendant-Appellant.

No. 86-3062.

United States Court of Appeals, Seventh Circuit.

Submitted Nov. 4, 1987.

Decided Dec. 10, 1987.

Gerald M. Werksman, Chicago, Ill., for defendant-appellant.

David J. Stetler, Asst. U.S. Atty., Anton Valukas, U.S. Atty., James R. Ferguson, Sheldon T. Zenner, Chicago, Ill., for plaintiff-appellee.

Before POSNER, COFFEY, and FLAUM, Circuit Judges.

POSNER, Circuit Judge.

The government's motion to dismiss this appeal with respect to two counts of an indictment raises potentially recurrent questions not previously decided in a reported opinion.

Count 1 charged Bina Patel with conspiracy to commit arson (18 U.S.C. Sec. 371), Count 2 with arson (18 U.S.C. Sec. 844(i)), and Count 7 with making a false statement to a federal agent (18 U.S.C. Sec. 1001). A jury found Patel guilty on these three counts only. On October 24, 1986, the judge sentenced her on Counts 1 and 2 (to 30 days in prison, and to five years of probation plus 250 hours of community service, respectively), but deferred sentencing her on Count 7 and also entered a stay of execution of the sentences on Counts 1 and 2, saying that he would decide whether to grant bail pending appeal after he disposed of Count 7. Five days later the clerk of the district court docketed the judge's order of October 24 reciting the judgment of conviction and the sentences on Counts 1 and 2. On December 1 the judge sentenced Patel to a term of probation on Count 7 to run concurrently with the sentences on Counts 1 and 2. Later he granted bail pending appeal. On November 21 he had entered a decree against Patel and her husband forfeiting a $200,000 bond, the husband (a defendant with his wife in the criminal case) having become a fugitive from justice.

On December 10, Patel's counsel filed the following notice of appeal:

PLEASE TAKE NOTICE that the defendant Bina Patel appeals to the Circuit [sic] Court of Appeals of [sic] the Seventh Circuit from the bond forfeiture liability judgment of $200,000.00 and her conviction and sentence imposed by the Hon. James Moran in the United States District Court for the Northern District [of Illinois] on December 1, 1986.

Despite the wording of the notice, the brief filed by Patel's counsel challenges Patel's convictions on Counts 1 and 2 as well as on Count 7. When the government received the brief, it asked us to dismiss the appeal with regard to those two counts.

The government makes two arguments. The first is that the sentences meted out on Counts 1 and 2 on October 24 were a final judgment (the sentence in a criminal case is the final judgment, Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L.Ed. 1377 (1956)), so that if Patel wanted to challenge her convictions on those counts she had to file her notice of appeal no later than ten days after October 24. Fed.R.App.P. 4(b). We disagree. This is a single criminal case, not three cases by virtue of the jury's having convicted the defendant of three different counts of the indictment. Not only was there only one indictment, there was only one trial. The proceedings in the district court were not over until the judge completed sentencing on all the counts on which Patel was convicted, and that was not until December 1. To allow separate appeals from each sentence would multiply proceedings in this court--a highly undesirable result in this era of swollen appellate caseloads. We hold that, in the unusual case of piecemeal sentencing of the same defendant under different counts in a single indictment and trial, the time to appeal runs from the entry of the last sentence. (This of course is the rule in civil cases. See Fed.R.Civ.P. 54(b).) Otherwise we might be faced with seriatim appeals involving closely related facts, and both the parties and this court would be burdened for no purpose.

In Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963), which involved the statute (now 42 U.S.C. Sec. 4205(c)) that authorizes the judge to impose the maximum sentence, then...