U.S. v. Hitchmon, No. 77-5587

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore BROWN, Chief Judge, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, CLARK, RONEY, GEE, TJOFLAT, HILL, RUBIN, VANCE and KRAVITCH; RONEY
Citation602 F.2d 689
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John HITCHMON, a/k/a John Ashanti, and Jessie Lee Fussell, Defendants- Appellants.
Decision Date12 September 1979
Docket NumberNo. 77-5587

Page 689

602 F.2d 689
UNITED STATES of America, Plaintiff-Appellee,
v.
John HITCHMON, a/k/a John Ashanti, and Jessie Lee Fussell,
Defendants- Appellants.
No. 77-5587.
United States Court of Appeals,
Fifth Circuit.
Sept. 12, 1979.

Page 690

Steven G. Glucksman (Court-appointed), Miami, Fla., for John Hitchmon.

Richard B. Marx (Court-appointed), Miami, Fla., for Jessie Lee Fussell.

Jack V. Eskenazi, U. S. Atty., Miami, Fla., Sidney M. Glazer, James R. DiFonzo, Washington D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, CLARK, RONEY, GEE, TJOFLAT, HILL, RUBIN, VANCE and KRAVITCH, Circuit Judges. *

RONEY, Circuit Judge:

A panel of this Court reversed these convictions on the ground that the district court was without jurisdiction to try the defendants because the Government had

Page 691

filed a notice of appeal from an order granting a new trial, which appeal stood undismissed at the time of trial. United States v. Hitchmon, 587 F.2d 1357 (5th Cir. 1979). This Court granted a petition for rehearing En banc, which effectively vacated the panel opinion. Fifth Circuit Local Rule 17. Sitting En banc, we now decide contrary to the panel view and hold that the notice of appeal from a nonappealable order does not render void for lack of jurisdiction acts of the trial court taken in the interval between the filing of the notice and the dismissal of the appeal by either the district court or the appellate court. Thus, the convictions here cannot be reversed on jurisdictional grounds. This being the only issue requiring the attention of the full court, the case is now remanded to the panel for determination of the other issues raised by appeal.

John Hitchmon and Jessie Lee Fussell were convicted of intimidating an officer of the law in violation of 18 U.S.C.A. § 111. Judgments of conviction were entered at a second jury trial. After their first convictions were affirmed by this Court, United States v. Hitchmon, 536 F.2d 1386 (5th Cir. 1976), a motion for new trial had been granted by the district court. The motion alleged that Government witnesses had perjured themselves. A new trial was ordered on April 15, 1977 on grounds of newly discovered evidence. On May 13 the Government filed a notice of appeal from that order. At a conference immediately preceding the start of the retrial on May 23, the following colloquy took place in court:

MR. MARX (defense counsel): Lastly, Your Honor, the Government filed an appeal from your Order granting a new trial. As of this date, I have not seen a dismissal of that appeal. I just want to be sure we are not in the posture of going forward with an appeal pending.

MR. FANNING (special United States Attorney): I have not seen (the notice of appeal). I would have to call and find out.

THE COURT: Go right ahead. We will take a brief recess.

MR. FANNING: (The U.S. Attorney has) advised me that there was a Notice of Appeal filed. . . . I was just advised that the courier is coming over from the United States Attorney's office, or the Clerk's office now with a dismissal of that Notice of Appeal.

THE COURT: Mr. Marx?

MR. MARX: I have nothing further, Judge, if that is the case.

THE COURT: I am prepared to call the jury panel in.

Thereupon, the trial commenced. The motion to dismiss was not actually filed with the court until 12:14 p. m. the same day, by which time the jury had been empaneled and sworn. The motion was not formally acted upon by the court until May 27, two days after the defendants were pronounced guilty, sentenced, and taken into custody. On that date, the court entered an order granting the Government's motion to dismiss the appeal "Nunc pro tunc May 23, 1977." At no time had the appeal been docketed in this Court.

We pretermit the question of whether the colloquy before the court and the action of the court were tantamount to a dismissal of the appeal prior to trial and of whether a written order of dismissal thereafter should have been given Nunc pro tunc effect. Suffice it to say that in the judgment of several members of the court, the situation did not call for the application of the automatic-divestiture-upon-filing-of-notice-of-appeal rule to the facts of this case, even if that were the rule of law to be followed. See Fed.R.App.P. 42(a); Williams v. United States, 553 F.2d 420 (5th Cir. 1977). For the purposes of this decision, however, the Court assumes that the defendants were tried by the district court after the filing of the notice of appeal and before the appeal had been dismissed.

The order to which the Government's notice of appeal referred was an order granting new trial. It is well established

Page 692

that an order granting new trial is generally nonappealable because it is interlocutory rather than a final judgment under 28 U.S.C.A. § 1291. Wiggs v. Courshon,485 F.2d 1281, 1282 (5th Cir. 1973). The United States cannot appeal in a criminal case without express congressional authorization. United States v. Martin Linen Supply, 430 U.S. 564, 568, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). A Government appeal from an order granting new trial is not authorized. See 18 U.S.C.A. § 3731; United States v. Sisson, 399 U.S. 267, 291-292 n.20, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970); United States v. Alberti, 568 F.2d 617, 621 (2d Cir. 1977); In Re United States, 565 F.2d 173, 177-178 (1st Cir. 1977). Cf. United States v. Lias, 173 F.2d 685 (4th Cir. 1949).

The filing of a timely and sufficient notice of appeal transfers jurisdiction over matters involved in the appeal from the district court to the court of appeals. The district court is divested of jurisdiction to take any action with regard to the matter except in aid of the appeal. Resnick v. La Paz Guest Ranch, 289 F.2d 814, 818 (9th Cir. 1961); 9 Moore's Federal Practice P 203.11 at 734-736 (2d ed. 1975). The district court may dismiss an appeal which has not been docketed upon...

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119 practice notes
  • U.S. v. Khoury, No. 86-5175
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 21, 1990
    ..."that a notice of appeal automatically divests the trial court of jurisdiction" was "explicitly rejected" in United States v. Hitchmon, 602 F.2d 689 (5th Cir.1979) (en banc) and United States v. Dunbar, 611 F.2d 985, 987 (5th Cir.) (en banc), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L......
  • Local P-171, Amalgamated Meat Cutters and Butcher Workmen of North America v. Thompson Farms Co., P-171
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 26, 1981
    ...409 U.S. 1039, 93 S.Ct. 519, 34 L.Ed.2d 488 (1972); Richerson v. Jones, 551 F.2d 918, 923-24 (3 Cir. 1977); United States v. Hitchmon, 602 F.2d 689 (5 Cir. 1979) (en banc) (collecting cases). Indeed, the Fifth Circuit has gone further and ruled that even timely appeals from appealable Page ......
  • Avoyelles Sportsmen's League, Inc. v. Marsh, Nos. 79-2653
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 26, 1983
    ...appears to be simply an example of the exception to the transfer-of-jurisdiction rule for invalid appeals. See United States v. Hitchmon, 602 F.2d 689, 690-91 (5th Cir.1979) (en banc) (appeal from unappealable order does not divest district court of jurisdiction during period that appeal is......
  • U.S. v. Dior, No. 80-1497
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 15, 1982
    ...decided that the Government may not appeal before retrial an order granting a new trial in a criminal case. United States v. Hitchmon, 602 F.2d 689 (5th Cir. 1979); In re United States, 565 F.2d 173 (1st Cir. 1977); United States v. Alberti, 568 F.2d 617 (2d Cir. 6 The Government does not a......
  • Request a trial to view additional results
119 cases
  • U.S. v. Khoury, No. 86-5175
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 21, 1990
    ...of appeal automatically divests the trial court of jurisdiction" was "explicitly rejected" in United States v. Hitchmon, 602 F.2d 689 (5th Cir.1979) (en banc) and United States v. Dunbar, 611 F.2d 985, 987 (5th Cir.) (en banc), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L......
  • Local P-171, Amalgamated Meat Cutters and Butcher Workmen of North America v. Thompson Farms Co., P-171
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 26, 1981
    ...409 U.S. 1039, 93 S.Ct. 519, 34 L.Ed.2d 488 (1972); Richerson v. Jones, 551 F.2d 918, 923-24 (3 Cir. 1977); United States v. Hitchmon, 602 F.2d 689 (5 Cir. 1979) (en banc) (collecting cases). Indeed, the Fifth Circuit has gone further and ruled that even timely appeals from appealable Page ......
  • Avoyelles Sportsmen's League, Inc. v. Marsh, Nos. 79-2653
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 26, 1983
    ...appears to be simply an example of the exception to the transfer-of-jurisdiction rule for invalid appeals. See United States v. Hitchmon, 602 F.2d 689, 690-91 (5th Cir.1979) (en banc) (appeal from unappealable order does not divest district court of jurisdiction during period that appeal is......
  • U.S. v. Dior, No. 80-1497
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 15, 1982
    ...decided that the Government may not appeal before retrial an order granting a new trial in a criminal case. United States v. Hitchmon, 602 F.2d 689 (5th Cir. 1979); In re United States, 565 F.2d 173 (1st Cir. 1977); United States v. Alberti, 568 F.2d 617 (2d Cir. 6 The Government does not a......
  • Request a trial to view additional results

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