Munich v. United States, 18693.
| Decision Date | 16 April 1964 |
| Docket Number | No. 18693.,18693. |
| Citation | 330 F.2d 774 |
| Parties | Anthony Joseph MUNICH, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
S. Carter McMorris, Sacramento, Cal., for appellant.
Cecil F. Poole, U. S. Atty., Alan R. Richfield and Jerrold M. Ladar, Asst. U. S. Attys., San Francisco, Cal., for appellee.
Before HAMLEY, MERRILL and BROWNING, Circuit Judges.
In this proceeding under 28 U.S.C. § 2255 (1958), appellee has moved to dismiss the appeal on the ground that it was not taken within the time prescribed in Rule 73(a), Federal Rules of Civil Procedure, and appellant has moved to augment the record.
The district court, on January 9, 1963, entered a "Memorandum and Order," the last paragraph of which contains a recital to the effect that the motion to set aside and vacate the sentence is denied. If this was a final decision within the meaning of 28 U.S.C. § 1291 (1958), appellant then had sixty days within which to take an appeal, unless the running of the time for appeal was terminated by a timely motion under Rule 52(b), Federal Rules of Civil Procedure (), or under Rule 59(a) (), or Rule 59(e) (). In order to be timely under any of these rules, such a motion must be made not later than ten days after entry of the judgment.
No such motion was made on or before the tenth day following entry of the order of January 9, 1963, nor was an appeal taken within sixty days of the entry of that order.
The order in question, however, contains a final recital reading as follows: "The Government will prepare and lodge appropriate findings and all other documents necessary for the disposition of these proceedings." Appellant apparently understood from this that formal findings of fact and a judgment were to be entered at some later date. This is a reasonable interpretation of the recital and we therefore hold that the order of January 9, 1963 was not a final order.
A form of findings of fact, conclusions of law and order denying the section 2255 motion was thereafter prepared by the Government and lodged with the clerk of the court on February 5, 1963. Appellant apparently then realized that the district court regarded the order of January 9, 1963 as final, and did not intend to sign the newly-lodged documents. Accordingly appellant, on February 6, 1963, filed a motion for a rehearing and a new trial. This motion was denied by an order entered on March 8, 1963. On April 8, 1963 appellant took an appeal from the orders of January 9 and March 8, 1963.
Under the circumstances, the order of March 8, 1963, while in form one denying a motion for a rehearing and a new trial, is to be regarded as a final order denying the section 2255 motion. The appeal taken therefrom, filed on April 8, 1963, was timely. The memorandum and order of January 9, 1963 is in effect an opinion of the court in which findings of fact are stated and legal conclusions are expressed.
On February 3, 1964 appellant moved in this court for an order to augment the record on appeal to include the probation report considered by the sentencing court prior to the pronouncement of sentence upon appellant. Without noting that motion for hearing, however, appellant then proceeded to make a similar motion in the district court, where the motion was heard and denied on March 23, 1963. Appellant then returned to this court, reported the district court action, and filed an affidavit and memorandum in support of his motion here to augment the record. He still did not note the motion for hearing.
The Government then moved to strike the affidavit and memorandum filed by appellant and to dismiss the motion to augment the record. It is the Government's position that the appellant should have asked this court to remand the motion to augment the record to the district court for further proceedings, and that in following a different course the motion to augment became subject to dismissal.
Appellant thereupon noted his motion for hearing in this court and the same has been argued and taken under submission.
Where a difference arises between the parties as to whether the record truly discloses what occurred in the district court the procedure, as prescribed in Rule 75(h), is for the parties to submit the difference to the district court for settlement, so that...
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