People of Territory of Guam v. Reyes, 86-1084
| Decision Date | 09 September 1986 |
| Docket Number | No. 86-1084,86-1084 |
| Citation | 800 F.2d 940 |
| Parties | PEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellee, v. John N. REYES, aka Johnny N. Reyes, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Elizabeth Beebe Volz, Agana, Guam, for plaintiff-appellee.
Frederick J. Horecky, Agana, Guam, for defendant-appellant.
Appeal from the United States District Court for the Territory of Guam.
Before CHOY, ALARCON and BEEZER, Circuit Judges.
John N. Reyes (hereinafter Reyes) appeals from the order denying his motion to set aside the dismissal of his appeal of judgment of the conviction for manslaughter and possession of a deadly weapon in the Superior Court of Guam. The district court dismissed the appeal because Reyes' appointed counsel failed to require employees of the Clerk of the Superior Court of Guam to prepare the record on appeal in a timely manner as required by Rule 8(f) of the Rules of Appellate Procedure, District of Guam. Reyes seeks reversal on two grounds:
One. The record on appeal was timely filed.
Two. Dismissal was too harsh a sanction under the circumstances of this case.
We discuss each issue and the facts pertinent thereto under separate headings.
The judgment of the Superior Court of Guam was entered on September 16, 1985. Reyes' appointed counsel, Frederick J. Horecky, filed the notice of appeal on September 19, 1985, well within the ten day requirement of Guam R.App.P. 4. An appellant must order a transcript of the proceedings he deems necessary for the disposition of the appeal within ten days of the filing of the notice of appeal. Guam R.App.P. 7(b). On October 1, 1985, Mr. Horecky filed a motion in the Superior Court of Guam to extend the time until October 15, 1985, for the designation of the record on appeal. This request was granted on October 16, 1985. On October 15, 1985, Mr. Horecky filed a designation of record and a separate request for a reporter's transcript. The request for a reporter's transcript makes no reference to any arrangement with the reporter for the payment of the costs. 1
On October 30, 1985, the Clerk of the Superior Court of Guam transmitted the record on appeal except for the reporter's transcript. In the cover letter addressed to the clerk of the district court, the clerk of the superior court informed the court as follows:
On the 15th day of October, 1985, the transcript was ordered by the appellant, who was pursuing his appeal in forma pauperis. As of this date, we have not received Form CJA 24 from your office. The assigned court recorder will not commence said transcript until we received [sic] the CJA Form.
A copy of the cover letter was sent to Mr. Horecky and Deputy Attorney General Thomas J. Lannen.
On October 31, 1985, Reyes filed a motion to proceed in forma pauperis. In support of his motion, Reyes declared that he was not employed and had no income or cash to support himself and four dependents. The motion was granted on November 4, 1985. In addition, and on the same date, Mr. Horecky was appointed to represent Reyes before the district court.
On January 14, 1986, the Clerk of the District Court of Guam informed Mr. Horecky that he had failed to submit a copy of CJA Form No. 24 requesting the approval of the court for payment of the costs of the reporter's transcript from government funds based on Reyes' inability to do so. Mr. Horecky filed a copy of CJA Form No. 24 on January 15, 1986.
On January 14, 1986, the district court ordered a hearing be set on January 31, 1986, for a "status call." On that date, the district court dismissed the appeal on the ground that Mr. Horecky had failed to request a reporter's transcript within ten days of the filing of the notice of appeal. In response to Mr. Horecky's request that he receive an opportunity to review his records, the district court advised him that he file a "motion to set aside the dismissal."
Mr. Horecky filed a motion to set aside the dismissal of the appeal on February 3, 1986. In his declaration in support of this motion, Mr. Horecky advised the district court for the first time that he had obtained an extension of time until October 15, 1985 to file the designation of the record on appeal from the Superior Court of Guam. Copies of the motion for an extension of time to designate the record and the superior court's order were not filed in the district court or served upon opposing counsel.
On February 21, 1986, Mr. Horecky filed a second declaration in which he declared that when he received a copy of the letter from the Clerk of the Superior Court of Guam addressed to the Clerk of the United States District Court of Guam, he believed that his office had previously submitted CJA Form No. 24 to the clerk of the district court. Because the letter indicated that "we have not received Form CJA 24 from your office," it was his belief that, "[s]aid letter did not indicate the need for any action on my part...." No counter declarations were filed by the Attorney General of Guam.
The district court heard argument on the motion to set aside the order dismissing the appeal on February 21, 1986. There was no appearance from the office of the Attorney General of Guam. After Mr. Horecky advised the court that he had filed the designation of record within the time granted by the Superior Court of Guam, the district court inquired whether counsel had advised the reporter that Reyes was "going to proceed in forma pauperis." Mr. Horecky stated he was not certain whether he "spoke with the court reporter."
The court noted that on November 21, 1984, a memorandum had been sent to all practicing attorneys advising that "[u]pon filing a Notice of Appeal in a pauper case in the District Court, and ensuing the appointment of counsel in forma pauperis, counsel must submit to the judge form CJA-24 requesting for authorization to obtain the necessary transcript on appeal." The district court also observed that after Mr. Horecky was appointed on November 4, 1985, he failed to come to court to request a CJA Form No. 24 and failed to take any action regarding payment of the transcript costs until January 14, 1986.
The court announced its intended decision to deny the motion to set aside the dismissal of the appeal at the close of argument. On February 26, 1986, the district court filed a written order setting forth the bases for the dismissal of the appeal.
The court stated that Reyes had failed to comply with the requirements of Rule 8(e) which compels transmission of the record on appeal to the district court no more than 90 days from the date of the filing of the notice of appeal. The 90th day after the filing of the notice of appeal was December 18, 1985. The reporter's transcript was not transmitted within that time. No motion was made to extend the time for filing the reporter's transcript after that date. The court also noted that under Rule 8(f) it is "the duty of the appellant to make certain that the employees of the Superior Court prepare the record in a timely manner." Guam R.App.P. 8(f).
We agree that Mr. Horecky failed to comply with the rules on appeal for the District Court of Guam. Rule 7(b) provides in pertinent part as follows: "[a]t the time of ordering [the transcript], a party must make satisfactory arrangements with the reporter for payment of the costs of the transcript." Guam R.App.P. 7(b). Mr. Horecky did not make any arrangements for the payment of the reporter. In a forma pauperis case, counsel for the indigent can make arrangements for the payment of the reporter by seeking such authority from the district court. Mr. Horecky failed to do so within the 90 day period set forth in Rule 8(e). He failed to take any action to arrange for the payment of the costs of the transcripts after he received notice that, as of October 30, 1985, the CJA Form No. 24 authorizing such payment at government expense, had not been received. The record supports the district court's finding that Mr. Horecky failed to fulfill his duty to his client and the court to make certain that the reporter's transcript was prepared in a timely manner. Instead, counsel failed initially to make arrangements for the payment of the reporter as required by Rule 7(b) and did nothing when he was made aware that the clerk of the superior court had not received authorization for the preparation of the transcript. Counsel's inaction clearly violated the rules.
We have concluded that Mr. Horecky's delay from October 15, 1986 in making arrangements for the payment of the cost of the reporter's transcript violated Rule 7(b) and 8(f) of the Rules of Appellate Procedure of the United States District Court of Guam. We must now decide whether the sanction of dismissal was too harsh. We review an order dismissing an action as a sanction for lack of prosecution for abuse of discretion. Ash v. Cvetkov, 739 F.2d 493, 495-96 (9th Cir.1984), cert. denied, 470 U.S. 1007, 105 S.Ct. 1368, 84 L.Ed.2d 387 (1985).
Rule 22 of the Rules of Appellate Procedure of the United States District Court of Guam provides in pertinent part as follows: "The Presiding Judge shall have authority to dismiss an appeal for failure to comply with these rules after an appeal has been docketed." We are required to look to the relevant case law of the Ninth Circuit in construing the Rules of Appellate Procedure of the District Court of Guam. Guam R.App.P. 1.
We begin our discussion by noting that the violations of the rules were committed by appointed counsel in a criminal case. There is no evidence that the appellant was responsible or aware of his attorney's failure to make arrangements for the payment of the court reporter or the transmittal of a complete record on appeal. We are also mindful of the fact that failure to file a proper request for the payment of the costs of the reporter until ...
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