Lott v. United States

• Decision Date: 20 June 1960
• Docket Number: No. 17888.,17888.
• Citation: 280 F.2d 24
• Parties: H. A. LOTT, Lee Blocker and Lorn D. Frazier, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

280 F.2d 24 (1960)

H. A. LOTT, Lee Blocker and Lorn D. Frazier, Appellants, v. UNITED STATES of America, Appellee.

No. 17888.

United States Court of Appeals Fifth Circuit.

June 20, 1960.

Denman Moody, W. V. Ballew, Jr., Walter E. Workman, Houston, Tex., Baker, Botts, Andrews & Shepherd, Houston, Tex., of counsel, for appellant Lott.

John H. Crooker, C. W. Wellen, Joe Moss, William M. Ryan, Houston, Tex., Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Tex., of counsel, for appellants Blocker and Frazier.

William B. Butler, U. S. Atty., Myron M. Sheinfeld, Fred L. Hartman, Asst. U. S. Attys., Houston, Tex., for appellee.

Before CAMERON and JONES, Circuit Judges, and WRIGHT, District Judge.

JONES, Circuit Judge.

The three appellants and two others were charged, in the first count of a five-count indictment, with attempting to evade and defeat income taxes of a named corporation for the year 1951. Three other counts charged the same offense for each of the years 1952, 1953 and 1954. A fifth count of the indictment charged a conspiracy to evade and defeat the corporation's income tax for the years 1951 to 1954, inclusive. The appellants, two of them on March 17, 1959, and the third on March 20, 1959, by leave of court, withdrew pleas of not guilty and tendered pleas of nolo contendere. These pleas were accepted by the court. Sentencing was deferred. During the period of deferment the judge, who had permitted the filing of and had accepted the nolo contendere pleas, presided over the trial of the two others who had been jointly indicted with the appellants. At this trial one of those tried was acquitted and the jury was unable to agree upon a verdict as to the other. Thereafter, on June 19, 1959, the court, with the same judge presiding, called the appellants before him for sentencing. The appellant Blocker was sentenced to three years imprisonment. The appellants Frazier and Lott were each sentenced to two years imprisonment. A fine of $20,000 was imposed upon each appellant. The sentences were pronounced from the bench on June 19, 1959, and the formal written judgments were filed on June 22, 1959. On the following day, June 23, 1959, motions in arrest of judgment were filed by each appellant. These motions were denied on July 13, 1959. The appellant Lott filed notice of appeal on July 15, 1959, and the appellants Blocker and Frazier filed notice of appeal on July 17, 1959.

Although stated in different language, the claims of error made by the appellant Lott and those of the appellants Blocker and Frazier are substantially the same. It is contended that the indictments are insufficient; that the court was without jurisdiction to impose sentences on the pleas of nolo contendere after hearing the evidence adduced at the trial of the others who were jointly indicted; and that the sentences were beyond the jurisdiction of the court. These questions going to the merits are not reached.

The United States has moved to dismiss the appeals on the ground that the notices of appeal were not filed within ten days after the entry of the judgments appealed from as required by Rule 37(a) (2), Fed.Rules Crim.Proc. 18 U.S.C.A.; and that the motions in arrest of judgment did not enlarge the time for giving notice of appeal because, although filed within ten days of the entry of the judgment, the motions were not filed within five days after the determination of guilt as required by Rule 34, Fed.Rules Crim.Proc. 18 U.S.C.A. The appellants suggest that because the Government has designated portions of the record to be brought up on appeal and has filed a brief on the merits its motion to dismiss ought not be entertained. But lack of jurisdiction can be raised at any time and the court is under a duty to notice absence of jurisdiction even though it is not raised by a party. Rule 12(b) (2), Fed.Rules Crim.Proc. 18 U.S. C.A.

The appellants are insistent that under Rule 37(a) (2)¹ an appeal may be taken within ten days after the entry of an order denying a motion in arrest of judgment if such motion was filed within ten days after judgment even though the motion in arrest of judgment was filed out of time and the notice of appeal was not filed until more than ten days had elapsed after judgment. This, the appellants say, is the clear, explicit and unambiguous meaning of Rule 37(a) (2) notwithstanding the provision of Rule 34² requiring the filing of a motion in arrest of judgment within five days after determination of guilt. Support for the appellants' position is found in Lujan v. United States, 10 Cir., 1953, 204 F.2d 171, where the proposition for which appellants contend is adopted and applied. In the Lujan case the motion was for a new trial under Rule 33, Fed.Rules Crim.Proc. 18 U.S.C.A. rather than a motion for arrest of judgment such as is before us. We do not think this difference would call for a distinction.

The doctrine of Lujan was expressly rejected in United States v. Bertone, 3 Cir., 1957, 249 F.2d 156. There the defendant was convicted on March 28, 1957, sentenced in open court on April 12, 1957, and a judgment of sentence and commitment was entered on April 18, 1957. On April 22, 1957, the defendant filed motions for a new trial and in arrest of judgment. On August 9, 1957, an order was entered denying the motions. On August 19, 1957, the defendant gave notice of appeal from the judgment and sentence of April 18, 1957, and from the August 19, 1957, order. The motions were filed within ten days after the entry of the judgment as is the case here. The appeal was taken within ten days after the entry of the order denying the motions as is the case here. The motions were not timely filed as was the case in Lujan, and as is the case here unless, of course, the entry of the pleas of nolo contendere did not result in determinations of guilt within the meaning of Rule 34. In the Bertone case it was held that the appeal was not taken in time. The same conclusion, upon a similar factual situation, was reached in Marion v. United States, 9 Cir., 1948, 171 F.2d 185, certiorari denied 337 U.S. 944, 69 S.Ct. 1500, 93 L. Ed. 1747.

We are in agreement with the Third Circuit that the rule announced in the Lujan case is unsound and ought not to be followed. To hold, as Lujan holds, that the untimely filing of a motion for a new trial or in arrest of judgment will toll the running of the time in which an appeal may be taken, although the motion could not be considered on its merits, produces a result which we think was not intended. It does not seem that the Supreme Court, in framing the rules, had the design of permitting a convicted defendant to file out of time a motion which the court could not have given him leave to file after the time for filing had expired,³ and so obtain an extension of the time for taking an appeal even though the court itself was powerless to grant such an extension.

This Court has, heretofore considered the question and has adopted the rule announced in Bertone, citing that opinion with approval. This Court has succinctly stated the principle in this language:

"To extend the time for taking an appeal, a motion for new trial must be both (a) timely made under Rule 33 and (b) made within ten days after entry of the judgment of conviction under Rule 37(a) (2)."

O\'Neal v. United States, 5 Cir., 1959, 264 F.2d 809, 812. Cf. Massicot v. United States, 5 Cir., 1958, 254 F.2d 58.

If the pleas of nolo contendere and the acceptance of them were determinations of guilt it follows that the motions in arrest of judgment were filed too late, the time for appeal was not tolled, and the appeals were not taken in time. If, on the other hand there was no determination of guilt, as that phrase is used in Rule 34, until the judgment and sentence, then the motions were timely made and the appeals were timely taken.

After a jury trial a determination of guilt has been made when a verdict of guilty has been returned by the jury and accepted by the court. Drown v. United States, 9 Cir., 1952, 198 F.2d 999; Finn v. United States, 4 Cir., 1958, 256 F.2d 304. A determination of guilt has been made when a plea of guilty has been entered. Marteney v. United States, 10 Cir., 1954, 216 F.2d 760. The appellants urge that a plea of nolo contendere is a plea in avoidance without a confession and that it does not result in a determination of guilt. It is, so appellants say, only an implied confession of guilt, a mere statement of unwillingness to contest, and no more. The federal courts, however, have long held that the legal effect of a plea of nolo contendere is the same as a plea of guilty for all purposes so far as regards proceedings on the indictment. United States v. Hartwell, Cir.Ct.Mass.1869, 3 Cliff. 221, 26 Fed.Cas. p. 196. A leading case is United States v. Lair, 8 Cir., 1912, 195 F. 47, where it is said:

"In fact, the defendant admitted that he committed the offense charged within that district; for his plea of nolo contendere is in effect a plea of guilty to every essential element of the offense well pleaded in the charge against him, and warrants his conviction thereof without more." 195 F. 47, 52.

On the question of guilt or innocence, the Supreme Court has held that the plea of nolo contendere is as conclusive as a plea of guilty would have been, and after such a plea nothing is left but to render judgment. United States v. Norris, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076. See also Hudson v. United States, 272 U. S. 451, 47 S.Ct. 127, 71 L.Ed. 347; United States v. Frankfort Distillers, 324 U. S. 293, 65 S.Ct. 661, 89 L.Ed. 951. The well settled principle that, for the purposes of the case, the plea of nolo contendere is the equivalent of a plea of guilty has been recognized and applied by this Court. Fransworth v. Zerbst, 5 Cir., 1938, 97 F.2d 255. Cf. Piassick v. United States, 5 Cir., 1958, 253 F.2d 658; Mickler v. Fahs, 5 Cir., 1957, 243 F.2d 515. The state courts, generally, are in...