Buckley v. United States

• Decision Date: 07 September 1967
• Docket Number: No. 9387.,9387.
• Citation: 382 F.2d 611
• Parties: Gary Stewart BUCKLEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

382 F.2d 611 (1967)

Gary Stewart BUCKLEY, Appellant, v. UNITED STATES of America, Appellee.

No. 9387.

United States Court of Appeals Tenth Circuit.

September 7, 1967.

Harry A. Stewart, Jr., of Stewart & Pickrell, Phoenix, Ariz. (Mitsunaga & Ross, Salt Lake City, Utah, with him on the brief), for appellant.

William T. Thurman, U. S. Atty., Salt Lake City, Utah, for appellee.

Before WILBUR K. MILLER, Senior Circuit Judge,^* and LEWIS and BREITENSTEIN, Circuit Judges.

WILBUR K. MILLER, Senior Circuit Judge:

Gary Stewart Buckley was found guilty by a jury of obstructing justice in violation of 18 U.S.C. § 1503¹ and the court imposed the maximum sentence of five years imprisonment and a fine of $5,000. His motion for a new trial, filed December 30, 1966, was heard and denied on January 20, 1967, and the order of denial was entered by the Clerk of the court on that day. From the verdict and order denying a new trial, appellant filed a notice of appeal on February 1, 1967 — two days after the expiration of the 10-day period within which such a notice may be filed. Rule 37, FED.R.CR.P.

On Febraury 6, 1967, the appellee filed a motion to dismiss the appeal because the notice of appeal was not filed in time, and the appellant filed a motion to extend the time for filing notice of appeal, alleging that his failure to file it within the permitted 10-day period was the result of excusable neglect. In support of his motion, the appellant filed the affidavit of one of his four trial attorneys, a member of a law firm in Phoenix, Arizona, who took upon himself the onus of tardy filing. This affidavit included the following:

"That affiant did not receive a notice from the Clerk of the United States District Court\'s Office sic advising of the docketing of said denial of motion and affiant mistakenly believed the District Clerk\'s procedure to be that he would enter said order in the criminal docket at some later date and counsel would be advised of that date; that affiant was not familiar with local practice, procedure and custom of docketing in the criminal calendar.

"Due to a heavy trial schedule and business out of affiant\'s office in Phoenix, Arizona, on January 30th. and 31st, it did not come to your affiant\'s attention as a matter in affiant\'s office until February 1st that perhaps his time computation was in error; thereupon affiant immediately prepared a Notice of Appeal; dictated the same to the secretary of Gaylen Ross, Associate Counsel in Salt Lake City and requested Mr. Ross to forthwith file the same which was done at 12:10 noon on February 1, 1967."

At the hearing on the motion to extend time, the trial judge commented on the above quotation from counsel's affidavit. He said:

"What your affidavit boils down to is that you say two things: (1) That you didn\'t get a notice from the clerk that the order denying motion for a new trial and judgment had been entered on January 20. The second thing is that you were busy with your practice.

"MR. STEWART attorney for appellant: In essence, that is it, Judge * * *."

In disposing of the matter, the judge expressly held that excusable neglect had not been shown, and so denied the motion for extension of time. Three days later appellant noted an appeal from that order.

Prior to July 1, 1966, Rule 37(a) (2), FED.R.CR.P., provided without qualification that "The notice of appeal by a defendant shall be filed within 10 days after the entry of the judgment or order appealed from." In United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed. 2d 259 (1960), the Supreme Court held that the filing of a notice of appeal in a criminal case after expiration of the time prescribed by this Rule does not confer jurisdiction upon the Court of Appeals; that the filing of the notice within the 10-day period is mandatory and jurisdictional.

After the Robinson decision, Rule 37 (a) (2) was amended as of July 1, 1966, so as to relax the rigidity of the 10-day provision by giving to the District Court discretion to extend the time upon a showing of excusable neglect. The pertinent portion of the amendment reads as follows:

"* * * Upon a showing of excusable neglect, the district court may, before or after the time has expired, with or without motion and notice, extend the time for filing the notice of appeal otherwise allowed to any party for a period not to exceed 30 days from the expiration of the original time prescribed by this paragraph. * * *"

This amendment was not intended to and did not detract from the Robinson ruling that a notice of appeal must be filed within the prescribed period if it is to give the Court of Appeals jurisdiction. Since the amendment, the effect of that decision is that the filing of a notice of appeal within the 10-day period or within any extension thereof is mandatory and jurisdictional; and, of course, if the District Court does not extend the time, a notice of appeal if filed after the 10-day period has expired is wholly ineffective. Thus, one who tardily tenders a notice must bring himself squarely within the amendment to the Rule before the District Court may permit the notice to be filed out of time.

The sole question presented by this appeal is whether the trial judge abused his discretion in denying Buckley's motion for an extension of time within which to note an appeal from his conviction and the denial...