U.S. v. Hitchmon, 77-5587

Decision Date05 January 1979
Docket NumberNo. 77-5587,77-5587
Citation587 F.2d 1357
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John HITCHMON, a/k/a John Ashanti, and Jessie Lee Fussell, Defendants- Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Stephen G. Glucksman, Miami, Fla. (court-appointed), for Hitchmon.

Richard Marx, Miami, Fla. (court-appointed), for Fussell.

Jack V. Eskenazi, U. S. Atty., Miami, Fla., Katherine Winfree, and Robert J. Erickson, James R. DiFonzo, c/o T. George Gilinsky, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

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

Before TJOFLAT and HILL, Circuit Judges, and HIGGINBOTHAM, * District Judge.

TJOFLAT, Circuit Judge:

John Hitchmon and Jessie Lee Fussell appeal judgments of conviction for intimidating an officer of the law in violation of 18 U.S.C. § 111 (1976). These judgments were entered after their second jury trial on these charges, a motion for new trial having been granted after their first convictions were affirmed by this court. We find that we must reverse and remand for yet another trial because the court below was without jurisdiction to try and convict these defendants.

The appellants were indicted on August 14, 1975. The convictions resulting from their first trial were summarily affirmed by this court. United States v. Hitchmon, 536 F.2d 1386 (5th Cir. 1976) (unpublished opinion, 5th Cir. R. 21). The time within which the appellants were to surrender to the marshal was extended, however, pending investigation of their allegation that the Government's witnesses had perjured themselves. A new trial was ordered on April 15, 1977 on grounds of newly discovered evidence, and 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:

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.

. . . .l p

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.

. . . .T:

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.

Record, vol. 6, at 16-19. Whereupon 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 acted upon until May 27, two days after the appellants had been 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." Id., vol. 2, at 262 (emphasis in original). At no time had the appeal been docketed in this court.

The appellants raise a number of claims of error regarding their trial. We need only discuss the jurisdictional issue. The filing of a notice of appeal ousts the district court of jurisdiction over those aspects of the cause involved in the appeal. Kirtland v. J. Ray McDermott & Co., 568 F.2d 1166, 1169 (5th Cir. 1978); Bush v. United Benefit Fire Insurance Co., 311 F.2d 893, 894 (5th Cir. 1963) (alternative holding); 9 J. Moore, Federal Practice § 203.11, at 734 (1977); 16 C. Wright, A. Miller, E. Cooper, E. Gressman, Federal Practice and Procedure § 3949, at 358-59 (1977). The appeal is pending once the notice of appeal is filed, See Fed.R.App.P. 3, and during its pendency the district court has only a very limited power to act with respect to the matters appealed. For example, if the appeal has not been docketed, it may dismiss the appeal upon notice and motion by the appellant or upon the filing of a stipulation signed by all the parties. Fed.R.App.P. 42(a). It may not, however, proceed with plenary trial where, as here, the whole cause has been appealed.

The Government argues that the court's order of May 27, 1977 "nunc pro tunc May 23, 1977" had the effect of dismissing its appeal prior to trial. We cannot agree. Literally translated, the latin phrase "nunc pro tunc" means "now for then." Orders may be entered nunc pro tunc to the end that the record accurately reflect what was actually done on a previous date or to protect the parties from the consequences of delay by the court not attributable to any fault on their part. 1 As recognized long ago by the Fourth Circuit:

The rule is now well established that nunc pro tunc orders cannot operate to modify orders theretofore made or to take the place of Orders intended to be made but omitted. The courts can by such orders supply omissions in the record of what was actually done in the cause at a former time when it was under consideration, and by mistake or neglect not entered in the clerk's minutes or the court's records; but where the court has omitted to make an order which it could have made, and in fact intended to make, it cannot subsequently make the same nunc pro tunc, so as to make it binding upon the parties to the suit from the date when it was so intended to have been entered; and especially is this so in matters relating to criminal proceedings and those involving rules for contempt.

Ex parte Buskirk, 72 F. 14, 20-21 (4th Cir. 1896) (citations omitted) (emphasis added). In this case, the U.S. Attorney may have intended to move for dismissal of the appeal prior to trial, and the court may have intended to grant the motion at that time, but neither of these actions was actually taken. On this record, the court's May 27 order can be given no nunc pro tunc effect. Accordingly, the court was without jurisdiction to try and convict these defendants. 2

REVERSED AND REMANDED.

JAMES C. HILL, Circuit Judge, concurring:

I concur in Judge Tjoflat's Opinion for the Court and also in the remarks of Judge Higginbotham in his concurring opinion.

PATRICK E. HIGGINBOTHAM, District Judge, concurring:

In concurring in this reversal I bow to the control of earlier panel decisions but write separately to question their wisdom. We hold today that the filing of a notice of appeal of an unappealable order automatically divests the trial court of all jurisdiction. We reach a conclusion whose impact on criminal justice can only be described as Sisyphean. A second criminal trial and conviction is held for naught because a notice of appeal that no one intended to pursue was not timely and formally abandoned. The untoward consequence of this rigidity is plain. If this were a clean slate or if earlier and differently focused decisions were distinguishable I would take a less rigid view of the concept of jurisdiction and hold that the filing of a notice of appeal of an unappealable order does not render void acts of the trial court taken in the interval between that filing and the determination by the court of appeals that it lacks jurisdiction.

A different result in this case would be reached by the Eighth, Ninth and Tenth Circuits. 1 If free I would follow their lead in full measure; that is, without ascribing to them a limited function of avoiding abuse by one litigant to another's right to continuing trial court jurisdiction. But this panel is not free to do so. Bush v. United Benefit Fire Insurance Co., 311 F.2d 893 (5th Cir. 1963); Kirtland v. J. Ray McDermott & Co., 568 F.2d 1166 (5th Cir. 1978). 2

The Tenth Circuit in Euziere v. United States, 266 F.2d 88 (10th Cir. 1959), Vacated on other grounds, 364 U.S. 282, 80 S.Ct. 1615, 4 L.Ed.2d 1720 (1960) observed:

(A)ll of the cases hold that an appeal divests the trial court of jurisdiction over the case, but that presupposes that there is a valid appeal from an appealable order. . . . An attempt to appeal a nonappealable order remains just that, an attempt. It is a nullity and does not invest the appellate court with jurisdiction, and consequently does not divest the trial court of its jurisdiction. Id. at 91.

The Tenth Circuit view in its essentials was followed by the Ninth Circuit in Ruby v. Secretary of the United States Navy, 365 F.2d 385 (9th Cir. 1966) En banc. Both Ruby and Euziere recognized that an appellate court can possess the power to determine whether it has jurisdiction at the same time that a trial court possesses jurisdiction over the case, at least where the effort is to appeal from a clearly unappealable order.

Judge Tjoflat does suggest a possible exception to the rule of automatic loss of jurisdiction. He urges that the primary rationale for Ruby and Euziere is deterrence of ". . . abuse of the appeal right by preventing a party from interrupting his opponent's entitlement to continuing trial court jurisdiction by filing a premature appeal." 3 But finding no such abuse here, the court concludes that the notice of appeal of the motion for new trial divested the trial court of jurisdiction. This proffered exception, by attempting to mitigate the harshness of complete divestiture of jurisdiction, travels in the correct direction but is an incomplete draw upon the benefits of the rule that a notice of appeal of an unappealable order does not divest a trial court of jurisdiction. An important virtue of the Ruby and Euziere decisions is that they draw a clearly defined line between those notices of appeal that divest a trial court of jurisdiction and those that do not. The same cannot be said of our prior reasoning. Recognizing trial court jurisdiction after a notice of appeal is filed only when there is abuse would leave district...

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