U.S. v. Andrews

Citation790 F.2d 803
Decision Date30 April 1986
Docket Number85-1249,Nos. 84-1458,s. 84-1458
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Lee Travis ANDREWS, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Stephanie J. Griffin, Denver, Colo., for defendant-appellant.

Mark D. Jarmie, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., and Presiliano A. Torrez, Asst. U.S. Atty., on brief), Albuquerque, N.M., for plaintiff-appellee.

Before BARRETT and SEYMOUR, Circuit Judges, and GREENE, * District Judge.

BARRETT, Circuit Judge.

In these consolidated appeals, Lee Travis Andrews contends that the district court erred in denying his motion to extend the time for filing a notice of appeal, that the proceedings below violated the Speedy Trial Act, 18 U.S.C. Secs. 3161 et seq. (1982) (the Act), and that his guilty plea was rendered involuntary by his failure to receive effective assistance of counsel.

I. BACKGROUND

Andrews and others were originally charged in a three count indictment with conspiracy to transport stolen goods in interstate commerce (Count I), transporting stolen meat in interstate commerce (Count II), and transporting the stolen trailer truck carrying the meat (Count III). Represented by appointed counsel, Andrews Trial on the superseding indictment was set for November 7, 1983. On that date voir dire was conducted, a jury was selected, and court was adjourned indefinitely. On November 30 Andrews was notified that his trial had been set for January 23, 1984. Andrews filed a motion on December 22 to dismiss under the Speedy Trial Act, which the district court denied on January 3.

was arraigned on October 6, 1983, and pled not guilty. That same day the Government filed a superseding indictment charging Andrews with the same three counts contained in the original indictment and adding a new charge of theft of meat from interstate shipment. 1

Both Andrews and his counsel, Mark Lee, moved the court in early January to allow Lee to withdraw as appointed counsel. Lee represented to the court that he was leaving the practice of law and returning to the University of New Mexico on January 16, 1984, to pursue a degree in the sciences. Lee was concerned that the start of classes on January 16 would conflict with the January 23 trial date. The district judge denied the motions notwithstanding his expectation that the trial would take three or four days.

Andrews, who had remained incarcerated following his original arraignment, appeared with counsel on January 23 and pled guilty to the conspiracy count in the superseding indictment. He also pled guilty to an information filed that day in open court, charging him with misprision of a felony by failing to report that another defendant named in the original and superseding indictments had stolen meat from the interstate shipment. Sentencing was originally set for February 6, but was postponed until February 17 because of Andrews' poor health.

At the sentencing hearing, the court sentenced Andrews to three years on the misprision charge, five years on the conspiracy count, and ordered the terms to run consecutively. The court then stated that it was relieving Lee of any further obligation to represent Andrews, and told Andrews that he had a right both to appeal and to apply as an indigent to the court for appointed counsel. When Andrews asked the court how to proceed, the court did not respond.

After sentencing, Andrews, who remained ill, was incarcerated in the Los Lunas county jail where his symptoms worsened and his medication made him groggy and incoherent. After about a week he was taken to a hospital in Albuquerque and placed in intensive care. A week later he was transported to a federal prison hospital in Springfield, Missouri, where he remained two months. During that time his medication was changed and his condition improved.

Andrews did not receive notification of the entry of judgment. Nevertheless, on March 12, 1984, he wrote a letter stating his wish to appeal and mailed it from the prison hospital mailbox in Springfield to the circuit court in Denver. This letter was not received by the clerk of the Court of Appeals until March 27. It was forwarded to the district court in Albuquerque where it was filed on March 30.

On January 2, 1985, represented by appointed counsel, Andrews renewed a motion filed in August, 1984, requesting an extension of time to file a notice of appeal on the basis of excusable neglect. Andrews attached an affidavit to his motion in which he recounted the circumstances giving rise to his untimely appeal, as outlined above. The district court concluded that Andrews had failed to file his notice of appeal within the thirty day extension period provided by Fed.R.App.P. 4(b), and denied the motion.

II. APPELLATE JURISDICTION

The Federal Rules of Appellate Procedure provide in pertinent part "In a criminal case the notice of appeal by a defendant shall be filed in the district court within 10 days after the entry of the judgment or the order appealed from.... A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket. Upon a showing of excusable neglect the district court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision."

Fed.R.App.P. 4(b).

In United States v. Lucas, 597 F.2d 243 (10th Cir.1979), this court held that a defendant who files a notice of appeal within the Rule 4(b) thirty day extension period may obtain relief by a showing of excusable neglect notwithstanding his failure to file a motion seeking such relief within that same time frame. In the instant case, although the judgment was filed on February 17, it was not entered on the criminal docket until February 22, and the time in which to file an appeal did not begin to run until that date. See United States v. Thoreen, 653 F.2d 1332, 1337-38 (9th Cir.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1428, 71 L.Ed.2d 648 (1982); United States v. Santia-Manriquez, 603 F.2d 575, 577 n. 1 (5th Cir.1979). Because the thirty-day period provided by the Rule did not expire until April 2, Andrews' filing in district court on March 30 was within the extension period. 2 Accordingly, the court erred by not considering Andrews' claim of excusable neglect.

On appeal Andrews contends that the circumstances set out in his affidavit, which the Government does not controvert, establish excusable neglect as a matter of law. We agree. Andrews was seriously ill and heavily medicated during the time in which he was required to appeal. Moreover, Andrews was improperly denied the aid of appointed counsel in pursuing his appeal when the district court dismissed Lee as Andrews' counsel at the sentencing hearing without replacing him.

The Criminal Justice Act of 1964 requires that "[a] person for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance ... through appeal, including ancillary matters appropriate to the proceedings." 18 U.S.C. Sec. 3006A(c) (1982) (emphasis added). The District Court for the District of New Mexico has enacted rules to implement the mandate of the Criminal Justice Act. The New Mexico plan provides:

"Counsel appointed by a judge or the Public Defender Organization attorney shall, unless excused by order of the Court, continue to act for the party throughout the proceedings in this Court. In the event that a criminal defendant enters a plea of guilty or is convicted following trial, counsel appointed hereunder shall advise the defendant of his right to appeal and of his right to counsel on appeal. If requested to do so by such defendant, counsel shall file a timely Notice of Appeal, and he shall continue to represent the defendant unless, or until he is relieved by the Court of Appeals.

"A judge may, in the interest of justice, substitute one appointed counsel for another at any stage of any proceeding in this Court."

N.M.Dist.Ct.R., app. A(l)(3). This rule requires appointed counsel to file a notice of appeal on request. It also contemplates that new counsel will be substituted if the court finds it necessary to excuse appointed counsel.

Tenth Circuit Rules are similar:

"In cases appealed in which an indigent party was represented by counsel appointed by order of the trial court, such appointment remains in full force and effect until appointed counsel is

relieved of the duties of his appointment by order of [the court of appeals]. Counsel's duties under his appointment by the trial court include:

(1) arranging for timely transmission of the record on appeal as provided by Fed.R.App.P. 10 and 11;

(2) filing a docketing statement in accordance with 10th Cir.R. 8;

(3) if requested, filing a memorandum opposing summary disposition; ..."

10th Cir.R. 4(b) (emphasis added). Implicit in the duties of appointed counsel under this rule is the filing of a notice of appeal upon request.

Andrews, who indicated to the court that he wanted to appeal but did not know how, was denied the opportunity to make such a request when the district court incorrectly relieved Lee of any further obligation to represent Andrews without appointing substitute counsel. One of the purposes of the above rules is to prevent the occurrence in this case: failure of an incarcerated indigent defendant to perfect his appeal within the ten day period. Under all of the circumstances present here, none of which are disputed by the Government, we conclude as a matter of law that Andrews has established excusable neglect. Cf. Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). We therefore have jurisdiction to consider the merits of his appeal.

III. SPEEDY TRIAL ACT

Andrews contends that his rights under the Speedy Trial Act were violated by the two and one-half month...

To continue reading

Request your trial
76 cases
  • United States v. Martinez
    • United States
    • U.S. District Court — District of New Mexico
    • 27 Enero 2021
    ...to an information or indictment adding a new charge not required to be brought in the original indictment." United States v. Andrews, 790 F.2d 803, 808 (10th Cir. 1986). "[T]he filing of a superseding indictment," however, "does not serve to toll the speedy trial clock" for the offenses cha......
  • U.S. v. Gomez-Olmeda, CR. 03-073(JAF).
    • United States
    • U.S. District Court — District of Puerto Rico
    • 12 Noviembre 2003
    ...subsequent, gilded charge is subject to the same Speedy Trial Act limitations imposed on the earlier indictment." United States v. Andrews, 790 F.2d 803, 809 (10th Cir. 1986). Because the Superseding Indictment was filed more than thirty days after Defendant's arrest, it violated the STA an......
  • U.S. v. Alvarez
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 20 Octubre 1988
    ...567 F.2d 346, 349 (8th Cir.1977), cert. denied, 435 U.S. 969, 98 S.Ct. 1608, 56 L.Ed.2d 60 (1978); see also United States v. Andrews, 790 F.2d 803, 810 (10th Cir.1986) (applying waiver where defendant pleaded guilty), cert. denied, 481 U.S. 1018, 107 S.Ct. 1898, 95 L.Ed.2d 505 (1987). Mr. H......
  • U.S. v. Abdush-Shakur
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 4 Octubre 2006
    ...re-indicted with the same offense, the new indictment begins a new seventy-day period. See § 3161(c); see also United States v. Andrews, 790 F.2d 803, 809 n. 4 (10th Cir.1986); United States v. Brown, 183 F.3d 1306, 1310 (11th Cir.1999) ("[Section] 3161(d)(1) resets the periods in which a d......
  • Request a trial to view additional results
2 books & journal articles
  • CORPORATE CRIMINAL LIABILITY
    • United States
    • American Criminal Law Review No. 58-3, July 2021
    • 1 Julio 2021
    ...States v. Marino, 654 F.3d 310, 321 (2d Cir. 2011); United States. v. Salinas, 956 F.2d 80, 83 (5th Cir. 1992); United States v. Andrews, 790 F.2d 803, 809 (10th Cir. 1986). 92. See Patel v. Mukasey, 526 F.3d 800, 803 (5th Cir. 2008) (“[U]nder the misprision statute, the defendant must comm......
  • Corporate Criminal Liability
    • United States
    • American Criminal Law Review No. 59-3, July 2022
    • 1 Julio 2022
    ...States v. Marino, 654 F.3d 310, 321 (2d Cir. 2011); United States. v. Salinas, 956 F.2d 80, 83 (5th Cir. 1992); United States v. Andrews, 790 F.2d 803, 809 (10th Cir. 1986). 84. See Patel v. Mukasey, 526 F.3d 800, 803 (5th Cir. 2008) (“[U]nder the misprision statute, the defendant must comm......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT