U.S. v. Hashagen

Decision Date19 August 1986
Docket NumberNo. 86-5145,86-5145
Citation816 F.2d 899
PartiesUNITED STATES of America, Appellee, v. HASHAGEN, Clinton Charles, Appellant. . Submitted Under Third Circuit Rule 12(6)
CourtU.S. Court of Appeals — Third Circuit

Before BECKER, MANSMANN, Circuit Judges, and TEITELBAUM, District Judge. *

Resubmitted In Banc Under Third Circuit Rule 12(6) January 30, 1987.



BECKER, Circuit Judge.

This appeal by Clinton Charles Hashagen from a conviction following a jury trial on two counts of distribution of a controlled substance, 21 U.S.C. 841(a)(1), presents an important question of appellate jurisdiction in criminal cases. Hashagen filed his notice of appeal after he was convicted but two days before he was sentenced and three days before judgment against him was formally entered. The panel to which this case was originally assigned found that the appeal was controlled by United States v. Mathews, 462 F.2d 182, 183-84 (3d Cir.), cert. denied, 409 U.S. 896, 93 S.Ct. 123, 34 L.Ed.2d 153 (1972), in which another panel had interpreted Federal Rule of Appellate Procedure 4(b) 1 to mean that a court of appeals lacks jurisdiction when a defendant files his notice of appeal before pronouncement of sentence. In its internally circulated opinion, see I.O.P. Chapter 9A, the original panel in this case would therefore have dismissed the appeal because of Hashagen's three-day prematurity in filing his notice of appeal. We agree with the panel that the case is in a procedural posture squarely controlled by Mathews, and we have accepted it in banc in order to reconsider the rule Mathews announced.

The Mathews rule is harsh, and other circuits have rejected it. See e.g., United States v. Curry, 760 F.2d 1079 (11th Cir.1985); United States v. Moore, 616 F.2d 1030 (7th Cir.1980). It is also at odds with our jurisprudence in civil cases: "a premature appeal taken from an order which is not final but which is followed by an order that is final may be regarded as an appeal from the final order in the absence of a showing of prejudice to the other party." Richerson v. Jones, 551 F.2d 918, 922 (3d Cir.1977) (emphasis in original). For the reasons that follow, we overrule Mathews and adapt to criminal cases the rule Richerson announced for civil cases: a notice of appeal filed after verdict but before sentence, although premature, ripens into an appealable order when the judgment of sentence is entered. Because we have jurisdiction over Hashagen's premature appeal under this rule, we must reach the merits. Finding no basis for his assignments of trial error, we affirm the judgment of sentence.

A. Procedural History

On December 11, 1985, a jury returned a guilty verdict against Hashagen on both counts of his indictment. Hashagen moved for a new trial, which was denied on February 6, 1986. Twelve days later, on February 18, Hashagen filed a notice of appeal "from the Order denying post-trial motions, and the judgment of conviction upheld thereby." 2

It was not until two days later, on February 20, that the district court sentenced Hashagen to concurrent terms of nine months imprisonment and special parole terms of three years on each count. On the next day, February 21, the sentence was reduced to judgment when a judgment and commitment order was filed. Hashagen filed no subsequent appeal. Therefore, his only notice of appeal was filed three days before formal entry of the judgment.

B. The Language of Rule 4(b)

To determine whether Hashagen's appeal was timely filed, we look to Federal Rule of Appellate Procedure 4(b), see supra n. 1. This rule begins with the command: "In a criminal case, the notice of appeal by a defendant shall be filed in the district court within ten days after the entry of the judgment or order appealed from." It has long been established that "[f]inal judgment in a criminal case means sentence. The sentence is the judgment." Berman v. United States, 302 U.S. 211, 212-13, 58 S.Ct. 164, 165-66, 82 L.Ed. 204 (1937). Therefore, the judgment of sentence is the point from which the ten-day time limitation of Rule 4(b) begins to run.

Hashagen, however, filed his appeal three days before his sentence was formally entered and thus technically before "entry of the judgment or order appealed from." Therefore, the issue presented by Hashagen's appeal concerns the effect of a filing that is three days premature. The second sentence of Rule 4(b) may be construed as addressing this situation. It provides that "[a] notice of appeal filed after the announcement of a decision, sentence or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof."

The Mathews panel found that the second sentence of Rule 4(b) did not support jurisdiction over an appeal filed prematurely. In Mathews, the defendant filed a notice of appeal from a judgment of conviction and denial of post-trial motions five days before sentence was entered. 3 The panel refused to base jurisdiction on that appeal, finding it "premature because '[a]n appeal may not be taken until the pronouncement of sentence....' " 462 F.2d at 183 (quoting Corey v. United States, 375 U.S. 169, 172, 84 S.Ct. 298, 301, 11 L.Ed.2d 229 (1963)). 4 It noted the rule's second sentence but found that it operated only to save a premature appeal where the notice of appeal is filed after the sentence is imposed but before the judgment is formally entered. Id. at 184 n. 2.

The Mathews panel's reading of Rule 4(b) is a plausible one. At least equally as plausible, however, is a reading that interprets this portion of Rule 4(b) to save a premature notice of appeal from a jurisdictional defect. Because the second sentence of Rule 4(b) is written in the disjunctive, this reading resists being constrained by the word "sentence." It finds that a premature notice of appeal is also one that is "filed after the announcement of a "decision" or "order" (i.e., the guilty verdict or the order denying the motion for a new trial) "but before entry of the judgment" (i.e., the entry of the judgment of sentence). Under this reading the notice of appeal should be "treated as filed after such entry and on the day thereof."

Rule 4(b) thus presents the courts with a choice between two viable readings. 5 In deciding between the two, we find interpretive guidance from Federal Rule of Criminal Procedure 52(a), which provides: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Reading Rule 4(b) in conjunction with Rule 52(a), a premature criminal appeal should be operative unless the prematurity impairs substantial rights that Rule 4(b) seeks to protect--substantial rights that can only be ascertained with reference to the policies served by Rule 4(b). Thus, only if a notice of appeal filed after the verdict but before sentence offends the policies behind Rule 4(b) should it be held inoperative. Otherwise, the prematurity is an "irregularity ... which does not affect substantial rights" and ought to "be disregarded." Fed.R.Crim.P. 52(a). 6

C. Policies Attendant to Notices of Appeal

Two policy interests have been identified as the animating forces behind Rule 4(b): "the practical necessities of judicial economy and finality of litigation on the one hand and fundamental notions of fair play on the other." Note, Timely Appeals and Federal Criminal Procedure, 49 Va.L.Rev. 971 (1963) (footnote omitted). Premature criminal appeals may implicate interests in judicial economy because, "until the entry of judgment, orders remain within the control of the district court and can be changed." J. Moore, B. Ward, J. Lucas, Moore's Federal Practice p 204.14 (2d ed. 1986). As a general matter, courts of appeals are hesitant to hear prematurely filed appeals lest they overstep their function of review and interfere with ongoing matters in the district courts. In instances of prematurity such as the one presented in this case, however, the concern with interference would not be implicated by reading Rule 4(b) to hold the appeal operative upon entry of judgment. Because sentence must be imposed and judgment finalized for the notice of appeal to ripen, this court's hearing of the prematurely filed appeal would not interfere with the independent functioning of the district court. The court of appeals would not begin considering the case until the district court ends its involvement by formally entering judgment against the defendant.

Notions of fair play are intimately connected with Rule 4(b)'s requirement that one party notify the other of his intention to appeal. Cf. United States v. Burns, 668 F.2d 855, 858 (5th Cir.1982) ("notice of appeal is literally a 'notice' requirement"). Because a notice of appeal filed by a defendant after conviction but before sentence informs the government of the defendant's intention to challenge his conviction, we believe that anything less than an extraordinarily premature notice of appeal causes no prejudice to the prosecution and should be as effective in triggering an appeal as it is in providing notice to the appellant's adversary. Both because of the proximity in time of the relevant judicial actions (i.e., the "decision" or "order" and the "entry of judgment") and because notices of appeal are intended to benefit the government only in so far as they give notice, we find that notices of appeal filed after verdict but before sentencing allow the prosecution to assess allegations of error without causing prejudice by being...

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