Blunt v. United States

• Decision Date: 18 April 1957
• Docket Number: No. 13294-13296.,Misc. 704,13294-13296.
• Parties: Thomas E. BLUNT, Petitioner, v. UNITED STATES of America, Respondent. Thomas E. BLUNT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

100 US App. DC 266, 244 F.2d 355 (1957)

Thomas E. BLUNT, Petitioner, v. UNITED STATES of America, Respondent.

Thomas E. BLUNT, Appellant, v. UNITED STATES of America, Appellee.

Misc. 704; Nos. 13294-13296.

United States Court of Appeals District of Columbia Circuit.

Argued March 18, 1957.

Decided April 18, 1957.

Petition for Rehearing Denied May 14, 1957.

COPYRIGHT MATERIAL OMITTED

Mr. David Lloyd Kreeger, Washington, D. C., appointed by this Court, with whom Mr. Thomas J. Schwab, Washington, D. C., was on the brief for the petitioner in Misc. 704.

Mr. Fred L. McIntyre, Asst. U. S. Atty., with whom Mr. Oliver Gasch, U. S. Atty., and Mr. Lewis Carroll, Asst. U. S. Atty., were on the brief for the respondent in Misc. 704.

Before EDGERTON, Chief Judge, and BAZELON and WASHINGTON, Circuit Judges.

Petition for Rehearing In Banc Denied May 14, 1957.

BAZELON, Circuit Judge.

In July and August 1952, Thomas Blunt, an 18-year old boy, was indicted for five robberies and a housebreaking and larceny, all committed in four weeks of June 1952. At his July 25th arraignment, the court ordered a psychiatric examination pursuant to 18 U.S.C. § 4244.¹ The psychiatrists found that Blunt was of unsound mind, suffering from a psychosis. At a hearing in September 1952, he was judicially found incompetent to stand trial and was committed to St. Elizabeths Hospital. He remained there until the hospital superintendent stated, in a letter dated August 13, 1953, that he was competent to stand trial. In October 1953, without any judicial determination of restored competency, he was tried and convicted on three charges of robbery.² He had theretofore never been convicted of a crime. The trial judge imposed three separate sentences of 32 months to 8 years, to run consecutively.³ Thus Blunt faced 8 to 24 years in prison.

After serving more than two years, Blunt pro se filed a motion in December 1955 to vacate the sentences under 28 U.S.C. § 2255. He alleged that, since there had been no pretrial judicial determination of restored competency, his convictions were defective, citing Gunther v. United States, 1954, 94 U.S. App.D.C. 243, 215 F.2d 493. The motion was heard by the district judge who had tried and sentenced Blunt. He denied it without hearing. He also denied leave to appeal in forma pauperis. Blunt then moved in this court for leave to appeal in forma pauperis and for appointment of counsel.⁴ We granted both requests⁵ since the reasons given by the trial judge for denial of the § 2255 motion without a hearing were plainly erroneous.⁶

Upon examination of the District Court docket entries and other investigation, the counsel we appointed to represent Blunt in his appeals from the denial of his § 2255 motion, discovered the following facts: On October 30, 1953, when Blunt was sentenced, his trial counsel presented to the trial judge an application, in the usual affidavit form, seeking leave to appeal in forma pauperis from the judgments of conviction. The judge indicated orally that he would grant leave to file a notice of appeal without prepayment of costs, but would not order the transcript to be furnished at the expense of the United States. Three days later, when Blunt was in jail and no longer had counsel,⁷ the Clerk of the District Court filed the application with an endorsement by the judge, "Let the defendant file notice of appeal without prepayment of costs." It does not appear that either Blunt or anyone on his behalf was notified of this action.

On the basis of these newly discovered facts counsel immediately petitioned us for leave to prosecute Blunt's appeals from the judgments of conviction, and for an order directing preparation of the trial transcript at Government expense.⁸ We ordered the transcript but, pending its study by counsel for both sides, withheld decision as to allowing prosecution of the appeals from the convictions.⁹ Pursuant to this court's sua sponte order of February 18, 1957, the parties have fully briefed and argued both the question whether the appeals may be prosecuted and the merits of the appeals themselves. We first consider the questions relating to our jurisdiction.

I. Jurisdictional Issues

A. Adequacy of Notice of Appeal.

Though the District Court declined to provide Blunt a transcript at Government expense, it endorsed his application, "Let the defendant file notice of appeal without prepayment of costs." Because Blunt did not within ten days thereafter file a paper formally denominated "notice of appeal," the Government now argues that we have no jurisdiction to entertain his appeals. But Blunt's timely application for leave to appeal in forma pauperis was, in the circumstances, an unequivocal notification of intention to appeal and therefore a "notice of appeal" sufficient to give this court jurisdiction under Rule 37(a), Fed.R.Crim.P. 18 U.S.C. Williams v. United States, 1951, 88 U.S.App.D.C. 212, 188 F.2d 41; Boykin v. Huff, 1941, 73 App.D.C. 378, 121 F.2d 865.

B. Timeliness of Pursuit of Appeals.

The rules allowed Blunt three days to file a statement that the stenographic transcript had been ordered from the reporter,¹⁰ and forty days to file the record.¹¹ But for more than two years, he did nothing. The Government says he thereby "abandoned" his appeals.¹² We conclude, instead, (1) that Blunt made timely efforts to pursue his appeals; and (2) that, if not, delay was "the result of excusable neglect," Rule 45(b) (2), Fed.R.Crim.P., and pursuit of the appeals must be allowed in the interests of justice.

Blunt, a pauper, could not himself order a transcript. But with the filing of his notice he asked the District Court for a transcript at Government expense. He had no occasion to ask us for a transcript until the District Court had effectively denied his request. The District Court's denial of his request was not entered until November 2, 1953, when Blunt was already in jail and no longer had counsel.

Rule 49(c) of the Federal Rules of Criminal Procedure provides:

"Immediately upon the entry of an order made on a written motion subsequent to arraignment the clerk shall mail to each party affected thereby a notice thereof and shall make a note in the docket of the mailing."

Concerning the similar provision in the Rules of Civil Procedure, the Supreme Court said in Hill v. Hawes, 1944, 320 U.S. 520, 523, 64 S.Ct. 334, 336, 88 L.Ed. 283.

"It is true that Rule 77(d) does not purport to attach any consequence to the failure of the clerk to give the prescribed notice; but we can think of no reason for requiring the notice if counsel in the cause are not entitled to rely upon the requirement that it be given."¹³

Since no notice was sent to Blunt or to anyone on his behalf, the time to take the next step in his appeals did not begin to run until March 1956, when counsel we appointed acquired actual notice, from the District Court files, of the order of November 2, 1953. Lohman v. United States, 6 Cir., 1956, 237 F.2d 645, and cases there cited.¹⁴

We need not consider whether actual notice of the order of November 2, 1953, would have dispensed with the requirement of formal notice of its entry on the docket,¹⁵ for there is no showing that Blunt had actual notice. The transcript shows that on October 30, 1953, when Blunt was sentenced and the application for a transcript was filed, the judge said, in the presence of Blunt and his counsel:

"I will allow you to file a notice of appeal without prepayment of cost, but I will not permit the matter to go further in forma pauperis without a further showing."¹⁶

But the order was not entered by the clerk until November 2, 1953, and it does not appear that the judge signed it earlier. The Government would have us assume that he signed it on October 30 when he stated what he would do. We see no basis for this assumption.¹⁷

C. Excusability of Delay.

If we thought, as we do not, that Blunt's time to take further steps in pursuit of his appeals commenced to run on November 2, 1953, we would hold that the delay until March 1956 was the result of excusable neglect, and would therefore review the convictions.

From the day he was sentenced until March 9, 1956, Blunt was in prison and without counsel. Whether he knew he had been allowed to appeal is very doubtful. The judicial determination, still outstanding, that he was incompetent to stand trial, applies equally to every step involved in prosecuting an appeal. We must conclude that his neglect to do anything until we appointed new counsel was excusable. In the face of the very substantial questions¹⁸ raised by the appeals as to the lawfulness of the convictions, we would defeat the interests of justice if we refused to entertain the appeals. As we said in Christoffel v. United States, 1950, 88 U.S.App.D.C. 1, 6, 190 F.2d 585, 590:

"* * * in a criminal case in which a sentence of imprisonment is involved, there is a public interest against denial of consideration on appeal of substantial questions as to the lawfulness of the conviction. For if the conviction is erroneous it is abhorrent to justice that a defendant shall nevertheless suffer such a penalty for the crime charged.¹⁹"

II. The Substantive Issues

The three taxicab drivers who were victims of the robberies, a jeweler who bought one of the stolen articles, and a policeman to whom Blunt orally confessed were the Government witnesses. Their testimony showed that the three robberies were committed in similar fashion: During the early morning hours, Blunt hired a taxicab and directed the driver to a desolate place; upon arrival, he offered a large bill in payment of the fare and, when the driver produced change, Blunt, by force or threats of force, took the driver's money and valuables and fled.

The defense was insanity. It was sought to be established by the following evidence:

(1) Blunt, the first defense witness, had reasonably clear recollection of events prior to his entry into the Army. He remembered that while in the...