U.S. v. Marsh, 82-1437

• Citation: 700 F.2d 1322
• Decision Date: 28 February 1983
• Docket Number: No. 82-1437,82-1437
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Albert James MARSH, Defendant-Appellant.

Page 1322

700 F.2d 1322

UNITED STATES of America, Plaintiff-Appellee, v. Albert James MARSH, Defendant-Appellant.

No. 82-1437.

United States Court of Appeals, Tenth Circuit.

Feb. 28, 1983.

James F. Blackmer, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty., Albuquerque, N.M., with him on brief), for plaintiff-appellee.

Michael E. Vigil, Marchiondo & Berry, P.A., Albuquerque, N.M., for defendant-appellant.

Before DOYLE and McKAY, Circuit Judges, and BROWN, Senior District Judge. ^*

WILLIAM E. DOYLE, Circuit Judge.

The question presented is a threshold one. It is whether or not this court has jurisdiction to hear and determine the case, in view of an alleged insufficiency arising under Rule 4(b) of the Federal Rules of Appellate Procedure. The appellant James Marsh was found guilty by a jury in a case in which the charge was conspiracy to import marijuana. Judgment and sentence was entered on December 10, 1981.

Marsh filed a motion for an extension of time in which to file a notice of appeal on December 18, 1981. This was pursuant to Rule 4(b), Federal Rules of Appellate Procedure, asking for a period not to exceed thirty days from the time a motion for a new trial is denied, assuming there has been a denial. The good cause required by the rule, which was set forth in the motion in support of the request for the extension was this; that only two days prior to the time the notice of appeal must be filed, Marsh acquired the name of a witness whom he thought might provide exculpating testimony on Marsh's behalf. Based on that showing the trial court granted the extension of time on December 18, 1981, that is, the same day that the request had been made. On December 21, 1981, Marsh filed a motion for a new trial based upon newly discovered evidence. This motion was denied on February 17, 1982. The district court in its memorandum opinion determined that Marsh had not exercised reasonable diligence in his efforts to locate the witness. The name and address of the witness had been disclosed by the United States at a pretrial in camera meeting of which Marsh's counsel had been notified.

But Marsh's counsel did not attend this meeting and Marsh never renewed his request that the United States disclose the whereabouts of the witness until two days before the notice of appeal had to be filed. The district court also stated that Marsh had not demonstrated that the witness's testimony would be exculpatory. The court concluded that the witness's sister informed the United States that the testimony would incriminate Marsh, and Marsh neither alleged nor offered evidence to the contrary.

The matter of importance is the February 22, 1982 motion on behalf of Marsh seeking reconsideration of the trial court's order denying the motion for a new trial. The claim was that this motion would toll the time for filing the notice of appeal. In the motion for reconsideration, Marsh stated that the witness had been notified, and that the counsel for Marsh believed that the witness would, in fact, produce exculpatory evidence material to issues in the case which could produce an acquittal before the jury.

On March 23, 1982, Marsh submitted to the court additional information in support of his motion for reconsideration of the denial of his motion for a new trial. This information consisted of a statement that since the witness was a paraplegic, and had recently been ill, it would take time to interview him. The request also stated that the witness had been provided a copy of the trial transcript and would read it. Marsh concluded that the witness intended to appear and give testimony in support of Marsh's motion for a new trial. However, on March 29, 1982, the trial court denied Marsh's motion for reconsideration of the prior order entered denying his motion for his new trial. On April 6, 1982, Marsh filed his notice of appeal. A summary of the various dates and the occurrences is set forth in the footnote below. ¹

As mentioned above, the governing rule is 4(b) of the Federal Rules of Appellate Procedure. The question is whether under that rule the motion for reconsideration of the trial court's order denying the new trial tolled the time notice of appeal of the original judgment and sentence should have been filed.

It is the contention of Marsh that inasmuch as his motion for reconsideration was filed within the period allowed for filing notice of appeal, the time for filing notice of appeal was tolled until the motion for reconsideration was ruled upon. Marsh relies on U.S. v. Healy, 376 U.S. 75, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964) and U.S. v. Dieter, 429 U.S. 6, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976), per curiam. It is true that the Supreme Court in both Healy and Dieter applied the rule to motions for rehearing. Marsh argues that his motion for reconsideration is, in effect, a motion for rehearing.

The difficulty is that this argument closes its eyes to the fact that in this case a motion for a new trial was filed before the motion for reconsideration was filed, and a motion for a new trial is nothing more than a motion for rehearing, and inasmuch as there is not entitlement to two hearings the motion for reconsideration was denied. This motion is like a rehearing for reconsideration. Thus, it might, in some circumstances, be the same as a motion for rehearing. But it is not valid here. Marsh is not entitled to two bites, so to speak. In other words, he is not entitled to two motions for rehearing, and that is what, in substance, is sought. First he files the motion for new trial, then he files a motion for rehearing of what was in essence a prior motion for rehearing. The Federal Rules of Appellate Procedure, 4(b), govern the time aspects of appealing in criminal cases. It provides, 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 order appealed from * * *. If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of an order denying the motion. A motion for a new trial based on the ground of newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made before or within 10 days after entry of the judgment. * * * 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.

From a reading of Rule 4(b), it is apparent that it gives no comfort either directly or indirectly. The rule is limited to procedure for an extension of time if a motion for a new trial or a motion in arrest of judgment is made. No mention is made of whether a motion for reconsideration of a denial of a new trial motion would similarly toll the running of the notice time until the trial court decides the reconsideration motion. This is not surprising; procedural steps have to come to a close at some time. To continue to grant 30 days extensions would postpone indefinitely the final disposition. The defendant here gained extra time for filing a notice of appeal as provided in the rule based upon excusable neglect; in addition he then obtained an additional extension of time by filing the motion for a new trial. After that, he maintains that he was entitled to and obtained 30 days in addition by filing a motion to reconsider. We reject that argument. The rule contains the procedure for an extension of time if a motion for new trial or a motion in arrest of judgment is made. But no provision is made for additional reconsideration. There has been a sufficiency of delay. Healy and Dieter are not in point. They arise under different facts. In Healy, the ruling appealed from was the dismissal of the government's indictment, and so it was from a government standpoint. Only one rehearing was sought. Dieter challenged the same kind of order, that is, the dismissal of the indictment. In Healy the challenge to the trial court's decision was a petition for rehearing; in Dieter it was a simple motion to set aside the order of dismissal. That is in sharp contrast to our case in which the double effort was plain. Healy and Dieter were not seeking two rehearings.

In the case of U.S. v. Rothseiden, 680 F.2d 96 (11th Cir.1982), the trial court had dismissed the government's indictment against two defendants based upon Speedy Trial violations. The government promptly filed a motion to reconsider these two dismissals. This the trial court denied. Without any further motions being filed the trial court entered a second order denying " 'the United States of America's motion to Reconsider Order of Dismissal with prejudice,' " 680 F.2d at 97, apparently quoting from the trial court's second order. After this second denial, the government filed its notice of appeal from the second order. Appellee-defendants argued that the notice of appeal was untimely. The notice of appeal was filed twelve days after the second denial of its motion to reconsider but thirty-eight days after the first denial and sixty-one days after the original dismissal of the indictment. Applying Rule 4(b) and other authorities, the Eleventh Circuit found that the notice of appeal was untimely, stating that "[t]he subsequent denial of the same motion could not restart the running of the period, for such successive tolling of the appeal period is not allowed." 680 F.2d at 98, citation omitted.

The facts in Rothseiden are not identical to the Marsh facts. In Rothseiden the government had not filed a second motion to reconsider; the court acted on its own in denying the reconsideration a second time. But if Marsh's second motion is characterized as merely...