U.S. v. Frias

• Decision Date: 31 March 2008
• Docket Number: Docket No. 06-5381-cr.
• Citation: 521 F.3d 229
• Parties: UNITED STATES of America, Appellee, v. Octavio FRIAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

521 F.3d 229

UNITED STATES of America, Appellee, v. Octavio FRIAS, Defendant-Appellant.

Docket No. 06-5381-cr.

United States Court of Appeals, Second Circuit.

Submitted: January 22, 2008.

Decided: March 31, 2008.

Octavio Frias, Lewisburg, PA, pro se.

Michael J. Garcia, United States Attorney for the Southern District of New York, Joshua A. Goldberg, Celeste L. Koeleveld, Assistant United States Attorneys, New York, NY, for Appellee.

Before: CARDAMONE, SACK, and KATZMANN, Circuit Judges.

SACK, Circuit Judge:

Defendant Octavio Frias appeals pro se from an amended judgment of conviction in the United States District Court for the Southern District of New York (John F. Keenan, Judge) for conspiracy to commit murder in violation of 21 U.S.C § 848(e)(1)(A) in connection with a narcotics offense punishable "under 21 U.S.C. § 841(b)(1)(A), which reimposes a sentence of life imprisonment after Booker remand. The government raises no objection to the untimeliness of the defendant's notice of appeal.

We are called upon to decide whether Federal Rule of Appellate Procedure 4(b), which governs the time to appeal from a criminal judgment, requires us to dismiss sua sponte an untimely appeal. We conclude that the time limits of Rule 4(b) are not jurisdictional and are therefore capable of forfeiture by the government. Frias's appeal nonetheless lacks merit. We therefore affirm his conviction and sentence.

I.

Oh January 2, 2003, the defendant, Octavio Frias, was charged by superseding indictment with one count of committing murder while engaged in a conspiracy to distribute and possess with intent to distribute more than one kilogram of heroin and more than five kilograms of cocaine. Viewed in the light most favorable to the government, the evidence at trial established that Frias assisted in a large-scale narcotics and gambling operation run by Roberto Martinez-Martinez, a/k/a "Papito," and Mario Lobo, a/k/a "Alberto Cruz." When Lobo's gambling losses threatened the narcotics business, Martinez-Martinez decided to have Lobo killed. Frias made all the arrangements: he hired gunmen, pointed out Lobo for them on the night of the murder, and paid their travel expenses when the job was successfully completed. On March 12, 2003, the jury returned a verdict of guilty. On July 1, 2004, the court sentenced Frias principally to a term of life imprisonment.¹

Frias appealed. We summarily affirmed his conviction but remanded for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). United States v. Frias, No. 04-4106-cr, slip op. at 3 (2d Cir. Sept. 28, 2005) ("Frias I"). On January 4, 2006, the district court, having conducted sentencing proceedings anew pursuant to our remand, entered an amended judgment again imposing a life sentence.

On September 28, 2006, proceeding pro se, Frias filed a notice of appeal. In his brief on appeal, Frias asserts insufficiency of the indictment, erroneous jury instructions, and various sentencing errors. Frias also concedes that his appeal is untimely, stating that his attorney refused to file an appeal on his behalf after resentencing. The government's brief responds to each of Frias's claims but makes no mention of the appeal's untimeliness.

II.

We consider sua sponte our subject-matter jurisdiction over this appeal, "as we are obliged to do [irrespective of whether either party raises the issue] when it is questionable." Henrietta D. v. Giuliani 246 F.3d 176, 179 (2d Cir.2001). Here, Frias concedes that his notice of appeal was untimely but the government has not asked us to dismiss his appeal for that reason.

We have stated that the time limits prescribed by Federal Rule of Appellate Procedure 4(b), which governs the time to appeal from a criminal judgment, are jurisdictional, barring us from adjudicating the merits of an untimely appeal.² See United States v. Fuller, 332 F.3d 60, 64 (2d Cir. 2003) (although it was undisputed, treating failure to comply with time limits in Rule 4(b) as jurisdictional); United States v. Ferraro, 992 F.2d 10, 11 (2d Cir.1993) (per curiam) ("[T]he requirement of a timely notice of appeal in rule 4(b) is jurisdictional."). More recently, however, we have noted that a series of Supreme Court decisions has "called into question" our previous statements regarding the jurisdictional nature of Rule 4(b). United States v. Moreno-Rivera, 472 F.3d 49, 50 n. 2 (2d Cir.2006) (per curiam). As explained below, we now conclude that Rule 4(b) is not jurisdictional and that we may therefore consider Frias's appeal on its merits.³

In Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004), the Supreme Court held that Rule 4004 of the Federal Rules of Bankruptcy Procedure, which sets a 60-day time limit on the right of a creditor to file a complaint objecting to a debtor's discharge, is not jurisdictional. Id. at 447, 124 S.Ct. 906. Because "[o]nly Congress may determine a lower federal court's subject-matter jurisdiction," id. at 452, 124 S.Ct. 906, the Court reasoned that time limits and filing deadlines originating only in the Bankruptcy Rules, and not in the United States Code, "are claim-processing rules that do not delineate what cases bankruptcy courts are competent to adjudicate," id. at 454, 124 S.Ct. 906. The Court acknowledged that it had sometimes misused the term "jurisdictional" to describe claim-processing rules that are mandatory or inflexible. Id. at 454-55, 124 S.Ct. 906. The distinction is important, however, because

[c]haracteristically, a court's subject matter jurisdiction cannot be expanded to account for the parties' litigation conduct; a claim-processing rule, on the other hand, even if unalterable on a party's application, can nonetheless be forfeited if the party asserting the rule waits too long to raise the point.

Id. at 456, 124 S.Ct. 906.

The Supreme Court revisited questions of subject-matter jurisdiction in Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam), and Bowles v. Russell, ___ U.S. ___, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). In Eberhart, the Court held that Federal Rule of Criminal Procedure 33(a), which sets a seven-day deadline for filing a motion for new trial, was virtually indistinguishable from Bankruptcy Rule 4004 and was therefore not jurisdictional. Eberhart, 546 U.S. at 15-16, 19, 126 S.Ct. 403. In Bowles, by contrast, the Court held that Federal Rule of Appellate Procedure 4(a), which governs the time to appeal in a civil case, is jurisdictional. Bowles, 127 S.Ct. at 2366.

Bowles highlighted "the jurisdictional distinction between court-promulgated rules and limits enacted by Congress." Id. at 2365.. Unlike Bankruptcy Rule 4004 and Criminal Rule 33(a), the Court explained, the time limit in Appellate Rule 4(a) is derived from a federal statute, 28 U.S.C. § 2107(a), which requires parties to file notices of appeal within 30 days of the entry of the judgment.⁴ Id. at 2363-65. Because the 30-day limit was statutory, the Court reasoned, it was properly construed as jurisdictional. Id. at 2365.

The Bowles Court addressed the jurisdictional status of Rule 4(a), which provides the time limit for appealing from a civil judgment. It was not called upon to discuss Rule 4(b), the time for appealing in a criminal case. Several of our sister circuits, applying the principles announced in Kontrick, have concluded that Rule 4(b), unlike Rule 4(a), is not jurisdictional. See United States v. Garduno, 506 F.3d 1287, 1288 (10th Cir.2007); United States v. Martinez, 496 F.3d 387, 388 (5th Cir.) (per curiam), cert, denied, ___ U.S. ___, 128 S.Ct. 728, 169 L.Ed.2d 568 (2007); United States v. Sadler, 480 F.3d 932, 934 (9th Cir.2007). We share their view.

As noted, critical to the Supreme Court's decisions in Kontrick and Bowles were the facts that Appellate Rule 4(a)'s origin is statutory whereas Bankruptcy Rule 4004's is not. See Bowles, 127 S.Ct. at 2364-65; Kontrick, 540 U.S. at 452-54, 124 S.Ct. 906; see also Grullon v. Mukasey, 509 F.3d 107, 112 (2d Cir.2007) ("Bowles emphasized repeatedly that its reasoning was based on the statutory origin of the limitation...."). "`It is axiomatic'" that court-prescribed rules of practice and procedure, as opposed to statutory time limits, "`do not create or withdraw federal jurisdiction.'" Kontrick, 540 U.S. at 452, 124 S.Ct. 906 (brackets omitted) (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 370, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978)). Appellate Rule 4(b), like Bankruptcy Rule 4004, is not based on a statutory prescription. As the historical and statutory notes to 28 U.S.C. § 2107 indicate, the time to file a notice of appeal in both civil and criminal cases was governed by a single statute until 1948, when Congress amended it to cover only civil actions. See Act of June 25, 1948, ch. 646, § 2107, 62 Stat. 869, 963 (codified as amended at 28 U.S.C. § 2107). For criminal cases, the time limit was then set forth in Federal Rule of Criminal Procedure 37(a), and is now covered by Federal Rule of Appellate Procedure 4(b). See 18 U.S.C. § 3732. The time to appeal a criminal judgment, therefore, is set forth only in a court-prescribed rule of appellate procedure. Rule 4(b), unlike Rule 4(a), is not grounded in any federal statute. Accord Garduno, 506 F.3d at 1290; Martinez, 496 F.3d at 388; Sadler, 480 F.3d at 938. It therefore does not withdraw federal jurisdiction over criminal appeals.

United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (I960), does not require us to conclude otherwise. Although Robinson, a criminal case, states that "the taking of an appeal within the prescribed time is mandatory and jurisdictional," id. at 229, 80 S.Ct. 282, the Supreme Court subsequently cited Robinson "as an example of when [it had] been `less than meticulous' in [its] use of the word `jurisdictional.'" Eberhart, 546 U.S. at 18 126 S.Ct. 403 (quoting Kontrick, 540 U.S....