Christoffel v. United States

• Decision Date: 24 July 1950
• Docket Number: No. 10568.,10568.
• Citation: 88 US App. DC 1,190 F.2d 585
• Parties: CHRISTOFFEL v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

88 US App. DC 1, 190 F.2d 585 (1950)

CHRISTOFFEL v. UNITED STATES.

No. 10568.

United States Court of Appeals District of Columbia Circuit.

Decided July 24, 1950.

Decided May 11, 1951.

O. John Rogge, New York, N. Y., for appellant.

James W. Knapp, attorney, Department of Justice, George Morris Fay, United States Attorney, and Joseph M. Howard, Assistant United States Attorney, for appellee.

Before STEPHENS, Chief Judge, and EDGERTON and PRETTYMAN, Circuit Judges.

PER CURIAM.

The appellant was convicted in the United States District Court for the District of Columbia of perjury as a witness before the Committee on Education and Labor of the House of Representatives. He appealed to this court and his conviction was affirmed. Christoffel v. United States, 84 U. S.App.D.C. 132, 171 F.2d 1004 (1948). The Supreme Court reversed, and remanded the case for proceedings in conformity with its opinion. 338 U.S. 84, 69 S.Ct. 1447, 93 L. Ed. 1826 (1949). The case was then retried in the District Court and the appellant, on March 14, 1950, was again convicted and was sentenced to imprisonment. On the same date he filed notice of appeal in the District Court, and a duplicate of that notice, together with a certified copy of the docket entries in the District Court, was on the same date transmitted by the Clerk of the District Court to the Clerk of this court and duly filed. Also on the same date there was lodged by the appellant with the Clerk of this court, in connection with the petition for bail pending appeal, an official "Transcript of Proceedings" in the District Court.

On April 21, 1950, the District Court, acting pursuant to Rule 39(c) of the Federal Rules of Criminal Procedure, entered an order extending to May 15 the time within which the record might be filed in this Court of Appeals. A certified copy of this order was filed in this court on April 24. On May 15 the District Court approved a stipulation entered into between the appellant and the appellee that the time within which the appellant might file the record with the Clerk of this court should be extended to and including May 29. A certified copy of this order of approval was filed in this court on June 27. On June 29 the first motion presently under consideration, seeking a further extension of time, to July 10, within which to file the record, was filed in this court by the appellant. The motion contains a notation "Consented to" signed by Special Assistants to the Attorney General of the United States. On July 10 appellant filed a second motion — to extend the time for filing the record on appeal to July 15, 1950. This motion also contains a notation "Consented to" signed by a Special Assistant to the Attorney General. On July 15 by a telegram to the court, the appellant requested that the time for filing the record on appeal be extended to a date five days beyond the date of the ruling by the court on the motion of July 10.

Rule 39(c) of the Federal Rules of Criminal Procedure, 18 U.S.C., foll. § 687 provides that the record on appeal shall be filed with the appellate court and the proceeding there docketed within 40 days from the date the notice of appeal is filed in the district court, but that "In all cases the district court or the appellate court . . . may for cause shown extend the time for filing and docketing."

Rule 45(b) of the Federal Rules of Criminal Procedure provides that "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 . . . (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 . . .." (Emphasis supplied)

In this case the time — as extended by the District Court — within which the record should have been filed having expired on May 29, 1950, and the motion for further extension having been filed after the expiration of the specified period — as extended — a showing not only of cause but also of excusable neglect is necessary for a further extension by this court. The motion for further extension is accompanied by an affidavit of O. John Rogge, counsel for the appellant, which in pertinent terms reads as follows:

1. This affidavit is made in support of the motion to extend the time within which the record on appeal may be filed and to open the default of the appeal in the above captioned matter.

2. On information and belief, the time within which the record on appeal was to be filed with the Clerk of the Court of Appeals for the District of Columbia Circuit was heretofore agreed to be extended to June 15, 1950 by consent of both parties.

3. On information and belief, the record on appeal was being prepared by the appropriate persons in the Office of the Clerk of the District Court of the District of Columbia.

4. On information and belief, my associate, Herbert J. Fabricant, thought he was to be notified when the record on appeal was prepared so that it might be physically transferred to the Office of the Clerk of the Court of Appeals for the District of Columbia.

5. On information and belief, no notice that the record on appeal had been prepared was given prior to June 15, 1950.

6. It was intended to move to extend the time within which the record on appeal might be filed, and the present motion is made with the Government's consent.

Wherefore it is respectfully prayed that the time within which the record on appeal may be filed with the Clerk of the Court of Appeals for the District of Columbia Circuit be extended to and including July 10, 1950 and that the default be opened.

The statements in the affidavit do not constitute excusable neglect for the failure to apply within time for a further extension of the time within which to file the record. The consent of the Government to affirmative action on the pending motions is not binding upon the court in respect of a showing by the appellant of excusable neglect in failing to comply with the Federal Rules of Criminal Procedure. In respect of the effect of an agreement with opposing counsel, cf. Citizens' Protective League, Inc. v. Clark, 85 U.S. App.D.C. 282, 178 F.2d 703 (1949). That was a civil proceeding. But Rule 32(b) of Title II (Civil Cases from the District Court) of the General Rules of the United States Court of Appeals for the District of Columbia Circuit contains a provision in respect of enlargement of time where a motion for enlargement is made after the expiration of the specified period in the same words as Rule 45(b) of the Federal Rules of Criminal Procedure above quoted. Rule 33(e) of Title III (Criminal Cases from the District Court) of the General Rules of the United States Court of Appeals for the District of Columbia Circuit provides that where not inconsistent with the Federal Rules of Criminal Procedure, or with Rule 33(e), the provisions of Title II of the Rules, so far as applicable, shall also govern appeals in criminal proceedings.

Motions denied.

On Reconsideration of Appellant's Motions to Extend Time to File Record on Appeal, Time Having Expired, and on Consideration of Appellee's Motion to Dismiss. Appeal.

O. John Rogge, New York, N. Y., for appellant.

John S. Pratt, Special Assistant to the Attorney General, of the Bar of the Supreme Court of Ohio, pro hac vice, by special leave of court, for appellee.

George Morris Fay, United States Attorney, Joseph M. Howard, Assistant United States Attorney, and James W. Knapp, Attorney, Department of Justice, also appeared for appellee.

Before STEPHENS, Chief Judge, and EDGERTON and PRETTYMAN, Circuit Judges.

STEPHENS, Chief Judge.

After the entry of the court's order denying, pursuant to our opinion in this case filed July 24, 1950, the appellant's motions to extend the time to file record on appeal, the appellant filed a petition for reconsideration of the court's ruling and the Government filed a motion to dismiss the appeal. An affidavit of Mr. O. John Rogge was filed in support of the petition for reconsideration and over the objection of the Government, based upon an affidavit of Special Assistant to the Attorney General John S. Pratt, we granted the petition for reconsideration and allowed oral argument. Such argument was made on October 16, 1950 by Mr. Rogge for the appellant and Mr. Pratt for the Government. Thereafter we took under advisement the motions to extend time and the motion to dismiss and we now render decision thereon as follows:

As appears from our previous opinion, the critical date on or before which it was the duty of counsel for the appellant either to file the record on appeal in this court, or, if that was for sufficient reason not possible, to apply, under Rule 39(c) of the Federal Rules of Criminal Procedure, 18 U.S.C. foll. § 687 for an extension of time for cause shown, was May 29, 1950. That was the date to which, upon application by the appellant's counsel, time had already been extended by the District Court. But counsel for the appellant failed on or before that date either to file the record or to make application for an extension of time within which to file it. For that failure, later motions must, if favorable action under Rule 45(b) (2) of the Federal Rules of Criminal Procedure is to be granted, show excusable neglect.

The showing attempted upon the rehearing was as follows: (1) Prior to March 4, 1950, Rogge, because of other activities in which he was engaged and which required his presence from time to time in Europe, delegated to his law partner, Herbert J. Fabricant, Esquire, of New York City, the duty "to prepare and file . . . the record . . .."¹ (2) Fabricant, on June 2, in New York, wrote Pratt in Washington enclosing a motion for an extension to June 15 and requesting Pratt to sign (Pratt having on the same day agreed to do so) a consent to the motion and to file the motion thus consented to. This letter was received in Washington by Pratt on June 6, and the...