Dickey v. United States

• Decision Date: 08 July 1964
• Docket Number: No. 18689.,18689.
• Citation: 332 F.2d 773
• Parties: Charles E. DICKEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

332 F.2d 773 (1964)

Charles E. DICKEY, Appellant, v. UNITED STATES of America, Appellee.

No. 18689.

United States Court of Appeals Ninth Circuit.

June 1, 1964.

Rehearing Denied July 8, 1964.

Donald C. Duchow, San Francisco, Cal., D. Wendell Reid, Van Nuys, Cal., for appellant.

Cecil F. Poole, U. S. Atty., Jerrold M. Ladar, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before HAMLEY, KOELSCH and BROWNING, Circuit Judges.

HAMLEY, Circuit Judge.

Charles E. Dickey appeals from his conviction, on a jury verdict, of concealing and facilitating the concealment of narcotic drugs in violation of section 2(c) of the Narcotic Drugs Import and Export Act, as amended, 70 Stat. 570, 21 U.S.C. § 174 (1958).

Dickey contends that the trial court erred in receiving an exhibit in evidence, and in failing to instruct the jury with reference to the inferences to be drawn from a claim of the privilege against self incrimination made by a witness called by Dickey.

The Government has moved to dismiss the appeal on the ground that it was not taken within the time required by Rule 37(a) (2), Federal Rules of Criminal Procedure. It is therein provided that an appeal may be taken within ten days after entry of the judgment or order appealed from but if a motion for a new trial or in arrest of judgment has been made "* * * within the 10-day period * * *" an appeal from a judgment of conviction may be taken within ten days after entry of the order denying the motion.

No notice of appeal was filed within ten days after entry of the judgment of conviction on March 22, 1963. However, on the tenth day, i. e., April 1, 1963, Dickey filed what is conceded to be a motion for a new trial. This motion was denied on April 5, 1963, and the notice of appeal was filed on the same day. Thus, looking only to Rule 37(a) (2), it would appear that the appeal was timely.

But Rule 33, Federal Rules of Criminal Procedure, provides that a motion for a new trial based on any grounds other than that of newly-discovered evidence shall be made within five days after verdict or finding of guilty or within such further time as the court may fix during the five-day period.¹ The motion for new trial made on April 1, 1963, was not on the ground of newly-discovered evidence, it was made more than five days after entry of the jury verdict, and the district court did not, during that five-day period, extend the time for making the motion.

Pointing to these circumstances, the Government contends that, notwithstanding the ten-day period for filing such a motion, apparently provided for in Rule 37(a) (2), Dickey's motion for a new trial was not timely under Rule 33, and therefore did not extend the time for taking an appeal.

The circuits are divided on this question. The Tenth Circuit holds that when the question is the timeliness of the appeal the ten-day period specified in Rule 37(a) (2) governs, notwithstanding the five-day provision of Rules 33 and 34. See Lujan v. United States, 10 Cir., 204 F.2d 171. All of the other circuits which have dealt with the problem, including the Ninth, hold that the five-day limit of Rules 33 and 34 governs.² One of the Fifth Circuit decisions so holding was reviewed by the Supreme Court in Lott v. United States, 367 U.S. 421, 81 S.Ct. 1563, 6 L.Ed.2d 940. But while the Supreme Court reversed the court of appeals, it did so on a different ground and did not reach the question under discussion.³

We need not reëxamine the position the Ninth Circuit has taken on this question for, assuming that the motion for a new trial, filed by Dickey on April 1, 1963, standing alone, did not have the effect of extending beyond that date the time for taking an appeal as prescribed in Rule 37(a) (2), there is another circumstance, now to be discussed, which leads us to believe that this appeal is timely.

Prior to filing his April 1, 1963 motion for a new trial, Dickey, on March 27, 1963, filed a paper denominated "Notice of Motion for New Trial." He therein gave notice that, on April 5, 1963, he would make a motion for a new trial, which motion would be based upon the notice, all other papers and documents theretofore submitted, and papers, documents, affidavits and other evidence to be thereafter submitted. This notice was filed on the fifth day after the entry of the verdict of guilty. Therefore, if regarded as a motion for a new trial, it was timely under Rule 33 and therefore, under Rule 37(a) (2), served to extend the time for taking an appeal until ten days after entry of the order denying the motion.

The Government, however, takes the position that this notice, filed on March 27, 1963, cannot be regarded as a motion for a new trial. It urges that there is a clear distinction between a written motion and a notice of hearing of such a motion, pointing to language in Rule 45(d), Federal Rules of Criminal Procedure, where reference is made to both motions and notices. Moreover, the Government contends, the notice cannot be regarded as a motion for a new trial because it does not, as required by Rule 47, Federal Rules of Criminal Procedure, contain a statement of the grounds upon which it was made.⁴ In support of this proposition, the Government cites United States v. McCurry, E.D.Pa., 146 F.Supp. 109, 111, aff'd on other grounds, 3 Cir., 248 F. 2d 116.⁵

If the problem before us were that of determining whether a document filed within the ten-day period prescribed by Rule 37(a) (2) was a notice of appeal, the past decisions of this court indicate that, in the interests of saving the appeal, we would be most liberal in finding any document filed to constitute such a notice. See Yanow v. Weyerhaeuser Steamship Co., 9 Cir., 274 F.2d 274, 282, and the examples there given of informally drawn papers or improperly labeled documents which have been accepted as a notice of appeal.

The real issue here is essentially the same. The question before us is not whether the "Notice of Motion for New Trial" was inadequate to enable the district court to act thereon as a motion for a new trial, but whether it can be regarded as such a motion for the purpose of saving the appeal. The district court took no action on the notice of March 27, 1963, and while it denied the motion for a new trial filed on April 1, 1963, that action is not before us for review. Thus the insufficiency of the notice is not presented as a reason why the district court should be sustained in denying it, but only as a means of preventing an appeal from the judgment of conviction.

Considered in this context, we see no reason why the sufficiency of the "Notice of Motion for New Trial" should not be regarded with as much latitude as we would regard informally drawn or improperly labeled notices of appeal. In fact, considering the ambiguity created by the apparent inconsistency between Rules 33 and 34 on the one hand, and Rule 37(a) (2) on the other, as pointed out above, there seems to be a special reason for a generous attitude in appraising, for this particular purpose, the sufficiency, as a motion for a new trial, of any document filed within five days of entry of the judgment.

We therefore conclude that the "Notice of Motion for New Trial," filed on March 27, 1963, should be regarded as a motion for a new trial for the purposes of Rule 37(a)(2) and that, so regarded, the time for taking an appeal was extended as provided in that rule. It follows that the notice of appeal, filed on the day the motion for a new trial was denied, was timely under Rule 37(a) (2). Accordingly the motion to dismiss the appeal is denied.

The exhibit which, according to Dickey, was erroneously admitted is a package containing 105 grams of heroin. This exhibit was inadmissible, appellant contends, because it was obtained as a result of an unreasonable search and seizure. The search and seizure were invalid, he argues, because not made pursuant to a search warrant or incident to a lawful arrest. The arrest was unlawful, Dickey asserts, because:

"Use by the federal officers of stealth, subterfuge, and force to gain entry into Appellant Dickey\'s hotel room together with the officer\'s sic failure to comply with the requirements of 18 U.S.C. 3109 violated the Appellant\'s constitutional right against unreasonable searches and seizures."⁶

Dickey's counsel had objected in the trial court to the admission of this evidence, contending there as he does here, that the arrest incident to which the seizure was made was not valid. But the reasons relied upon in the trial court for asserting that the arrest was unlawful were entirely different from those advanced on this appeal. Instead of arguing, as he now does, that the arrest was invalid because of the manner in which Dickey's room was entered, he contended in the trial court that the officers did not have "probable cause" or "reasonable grounds" to make the arrest without a warrant.⁷

Pointing to this disparity of reasons, the Government argues that Dickey should not be permitted to advance here, for the first time, grounds for objection which were not voiced in the trial court. Counsel for Dickey, on the other hand, asks us to consider the new grounds under the "plain error" rule, Rule 52(b), Federal Rules of Criminal Procedure.⁸

In Billeci v. United States, 9 Cir., 290 F.2d 628, 629, where no trial court objection had been made to the introduction of the evidence, and no motion to suppress had been made under Rule 41(e), this court based its conclusion that the search and seizure did not involve "plain error" on the view that the reception of evidence obtained as the result of an unreasonable search and seizure is not the kind of error which could seriously affect the "fairness, integrity or public reputation of judicial proceedings," to use the language of United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555. This disposition of the "plain error" question did not involve any consideration of the lawfulness of the search and...