Peoples v. United States

• Decision Date: 13 October 1964
• Docket Number: No. 7488.,7488.
• Citation: 337 F.2d 91
• Parties: Benny PEOPLES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

337 F.2d 91 (1964)

Benny PEOPLES, Appellant, v. UNITED STATES of America, Appellee.

No. 7488.

United States Court of Appeals Tenth Circuit.

October 13, 1964.

Malcolm E. MacDougall, Denver, Colo., for the appellant.

Jack R. Parr, Asst. U. S. Atty. (B. Andrew Potter, U. S. Atty., with him on brief), for appellee.

Before MURRAH, Chief Judge, and HILL and SETH, Circuit Judges.

MURRAH, Chief Judge.

Peoples was convicted and sentenced pursuant to jury trial on a one-count indictment charging him with unlawfully entering a bank with intent to commit a felony, in violation of 18 U.S.C. § 2113(a). On trial of the case he was represented by retained counsel. He was granted leave to appeal from that judgment in forma pauperis and competent counsel was appointed to represent him. After hearing oral argument on the merits and upon careful consideration of the briefs and record submitted, this Court in a per curiam opinion dismissed the appeal as untimely for failure to comply with the jurisdictional requirements of Rule 37(a) (2), F.R.Crim.P. See: Peoples v. United States (10 CA), 324 F.2d 689, citing United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259. Having granted certiorari, the Supreme Court vacated our judgment of dismissal and remanded the case "for consideration in the light of Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed. 760, decided this date." Peoples v. United States, 378 U.S. 586, 84 S.Ct. 1929, 12 L.Ed.2d 1040. We think this case clearly distinguishable from the facts in Fallen.

In the Fallen case, letters written by the convicted defendant and addressed to the Clerk of the Court "asking for a new trial and for an appeal" were received by the Clerk four days after the expiration of the time for filing notice of appeal prescribed by Rule 37(a) (2). The letters were dated within the ten-day period and if promptly mailed would have been, in the course of normal events, received by the Clerk within the prescribed period. On the basis of the record, there was no reason to doubt that the date on the letters was accurate and that they were deposited with the prison authorities for mailing. In these circumstances, "petitioner had done all that could reasonably be expected to get the letter to its destination within the required 10 days." He was held, therefore, not to be chargeable with the delay. In short, the timely deposit with the prison authorities constituted a timely filing within the spirit and purpose of Rule 37(a) (2). Try as we may, we cannot bring our case within the precepts of the Fallen decision.

Although the convicted defendant in our case stated at sentencing and in the presence of his retained attorney that he would "like to appeal in forma pauperis," nothing was done to effect the appeal for more than two months after imposition of sentence. If the defendant had not been represented by counsel, it would have been the duty of the trial Court to fully advise him of his right to appeal and upon his request, direct the Clerk "to prepare and file forthwith a notice of appeal on behalf of the defendant." Rule 37(a) (2). But, the defendant was represented by retained counsel and according to the record in the case, depended upon this attorney "to perfect this appeal in my behalf." There is nothing in the record to indicate, or from which it can be inferred, that the trial Court, the Clerk or anyone else considered the defendant's statement as "an oral...