Howard v. United States

• Decision Date: 03 September 1968
• Docket Number: No. 19104.,19104.
• Parties: Milton HOWARD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

396 F.2d 867 (1968)

Milton HOWARD, Appellant, v. UNITED STATES of America, Appellee.

No. 19104.

United States Court of Appeals Eighth Circuit.

July 11, 1968.

Rehearing Denied September 3, 1968.

Joseph L. Krause, Lincoln, Neb., for appellant.

Theodore L. Richling, U. S. Atty., Omaha, Neb., for appellee.

Before VAN OOSTERHOUT, Chief Judge, HEANEY, Circuit Judge, and REGISTER, Chief District Judge.

VAN OOSTERHOUT, Chief Judge.

The problem here presented is whether this court has acquired jurisdiction to entertain an appeal from defendant Howard's conviction by a jury and the resulting sentence imposed on April 10, 1964, on each of two counts of an indictment charging narcotics violations.

Defendant was represented at the trial by Mr. Guenzel, court-appointed counsel. Mr. Guenzel is an able and experienced lawyer and a member of a prominent and reputable Lincoln law firm. He continued to represent the defendant for some months following the sentence. Nothing which under a liberal interpretation of Rule 37(a), Fed.R.Crim.P., could be considered a written notice of appeal was filed by or on behalf of the defendant within the ten-day period allowed for appeal. Defendant pro se on March 21, 1966, (almost two years after conviction) filed a motion to reactivate his appeal from his conviction. Mr. Krause, who had not previously represented the defendant in this case, was appointed to represent him in his efforts to perfect the appeal. Mr. Krause on June 16, 1967, filed a motion for leave to prosecute the appeal, incorporating the prior motion filed by the defendant, and asserting additional grounds. Evidentiary hearings were held on such motions. Thereafter on November 13, 1967, the trial court, for reasons set out in a well-considered unreported memorandum opinion, denied the motions to reactivate and prosecute the appeal from defendant's conviction. This is an appeal in forma pauperis from such order.

The controlling issue before us is whether this court has acquired jurisdiction to consider defendant's appeal from his conviction. The procedure in effect at the time of defendant's conviction for taking an appeal in a criminal case is set out in Rule 37(a), Fed.R.Crim.P.¹

A notice substantially complying with the rule is a prerequisite to conferring jurisdiction on this court to consider the appeal. United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259; Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012; United States v. Stigall, 6 Cir., 374 F.2d 854, 855; United States v. Temple, 4 Cir., 372 F.2d 795, 797. Defendant concedes that under the rule as interpreted in Robinson, no jurisdiction exists in the trial court to extend the ten-day period allowed for filing notice of appeal for excusable neglect.²

Defendant's position is that he has taken a timely appeal from his conviction. His position is asserted in his brief as follows:

"At the very outset of this brief, the appellant wishes to stress the fact that it is upon the basis of the oral Notice of Appeal, followed by his letters to the District Court that the appellant seeks leave to proceed with his appeal. The request here is not for an extension of time to appeal, rather a request that this Court recognize the oral Notice of Appeal followed by the letters as sufficient notice of appeal for the purposes of satisfying the requirements of Rule 37(a) (2)."

The trial court found as a fact that, "Notice of appeal was not filed within the time required by law. * * * There is, however, nothing in the stenographic record of the court reporter showing that an oral notice of appeal was given." We agree with such findings. The record shows that the court, immediately after sentencing in the presence of defendant and his counsel, stated: "And I believe that if you desire to appeal that probably you should at least arrange about preparing a notice of appeal and the like, then I think the court of appeals take up the question of whether to appoint local counsel or whether to appoint St. Louis counsel." There was further discussion as to whether Mr. Guenzel, court-appointed counsel, was willing to represent the defendant upon appeal. Counsel said he would do so. It may be inferred from the record that an appeal was under consideration but no statement of either defendant or counsel is found in the record which gives notice of an intention to appeal.

Moreover, an oral notice of appeal is not contemplated by the rule. Rule 37(a) provides for the filing of a notice in duplicate, the contents thereof, and for the signing of the notice by defendant or his counsel. Such provisions cannot be complied with in an oral notice of appeal. Defendant has cited no cases holding an oral notice of appeal is sufficient. The decided cases hold that an oral notice of appeal does not comply with the rule. United States v. Temple, supra; O'Neal v. United States, 5 Cir., 264 F.2d 809, 811-812; Durel v. United States, 5 Cir., 299 F.2d 583, 584; United States v. Isabella, 2 Cir., 251 F.2d 223, 226.

Defendant urges that the letters he wrote to the presiding judge constitute a notice of appeal. It is quite true, particularly in cases where the defendant represents himself, that letters addressed to the judge or the clerk within the prescribed time which manifest an intent to appeal, have been held sufficient to constitute a notice of appeal. Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760. Defendant did write numerous letters to the judge, one of which was within the ten-day period allowed for appeal. However, such letter requests a reduction in sentence but contains no mention of an appeal or intent to appeal. The first letter written to the judge which makes any reference to an appeal is one dated June 23, 1964, which was written more than two months after the final judgment.

This case is readily distinguishable factually from Fallen, upon which defendant relies. In Fallen, the letter relied upon states an intent to appeal and such letter was written and delivered to the prison officials for mailing in sufficient time to have reached the court within the ten-day period. The Fallen majority bases its decision on the fact that the defendant was in prison and did all he could to mail the notice in time. Four Justices in an opinion written by Mr. Justice Stewart concur in the result on the basis that the jailer in effect was the clerk of the District Court within the meaning of Rule 37. It is also significant that the Supreme Court affirmed in Berman on the basis of Robinson on the same day that Fallen was decided. A reasonable inference flows from this that the Court majority considered the teaching of Robinson as unaffected by Fallen.

Mr. Guenzel wrote defendant a letter dated April 6, 1964 (prior to sentence) in which he stated he was filing motions to protect the right of an appeal and, "I have not changed my mind with regard to the appeal. Unless you instruct us to the contrary, we will go ahead with an appeal of this case. * * *" At an evidentiary hearing, defendant testified that he had received the letter just described and he...