U.S. v. Martinez

• Decision Date: 24 June 1982
• Docket Number: No. 82-1353,82-1353
• Citation: 681 F.2d 1248
• Parties: 10 Fed. R. Evid. Serv. 1626 UNITED STATES of America, Plaintiff-Appellant, v. Franke Eugenio MARTINEZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1248

681 F.2d 1248

10 Fed. R. Evid. Serv. 1626

UNITED STATES of America, Plaintiff-Appellant, v. Franke Eugenio MARTINEZ, Defendant-Appellee.

No. 82-1353.

United States Court of Appeals Tenth Circuit.

June 24, 1982.

Barry R. Elden, Asst. U. S. Atty., Chicago, Ill., Specially appointed to the Dist. of Colo. (Robert N. Miller, U. S. Atty., Denver, Colo., Walter Jones, Jr., Asst. U. S. Atty., Chicago, Ill., Specially appointed to the Dist. of Colo., Robert T. McAllister, Asst. U. S. Atty., Denver, Colo., with him on the brief), for plaintiff-appellant.

Kenneth A. Padilla, Denver, Colo. (Walter L. Gerash, Denver, Colo., with him on the brief), for defendant-appellee.

Before McWILLIAMS, DOYLE and LOGAN, Circuit Judges.

PER CURIAM.

This cause is before us on the appeal of the government from a ruling of the district court on questions of admissibility of evidence. The appeal is prosecuted pursuant to 18 U.S.C. § 3731. The evidence in question, which was excluded, alleged similar offenses by the defendant together with evidence of flight soon after the alleged commission of the offense.

The case has to do with the sending of explosives through the mail contrary to 18 U.S.C. §§ 1716 and 2. Also included are firearm violations under 26 U.S.C. §§ 5861 and 5871. The original indictment which was returned on November 9, 1973, contained seven counts. The allegation was that on November 9, 1973 the defendant sent through the mail three bombs addressed to Robert Crider, a member of the Denver School Board, Carol Hogue, a policewoman, and the Two Wheeler motorcycle shop in north Denver. Prior rulings by the district court required that the defendant be tried separately for each of the three bomb sending incidents.

The subject matter of the present trial is the explosives which were sent to the Two Wheeler motorcycle shop. Prior to the presentation of the present problems the plan was to start the trial March 29, 1982. On January 29, 1982 the defendant filed a motion seeking clarification. He sought to have all of the evidence concerning the bomb which was sent to Crider and explosives which were sent to Carol Hogue excluded from the trial of the Two Wheeler incident.

In two separate orders the trial court ruled that no evidence could be introduced on any counts which were not being tried on March 29, 1982. In a hearing held on February 12th defendant's counsel stated that in one of the two orders of February 4th, on which date the original ruling of the trial judge was given, there was a typographical error which referred to the counts set for trial as "three" counts instead of two. The court corrected the error by interlineation.

Both parties have raised the question of the scope and significance of the February 4th ruling. At its February 12th hearing the court reiterated its position that no evidence of similar acts under Rule 404(b) would be permitted in the prosecution's case or in rebuttal but said that if the defendant opened the door as to similar acts, the government, in fairness, would have the opportunity to rebut it. The trial court made this clarification of the February 4th ruling, but only as an explanation of the opportunity to rebut once the door was opened.

The government filed a motion on March 10, 1982 in which it sought reconsideration by the trial court of its ruling excluding the similar acts. The trial court considered this motion in a hearing on March 12 and denied the motion for reconsideration by a written order on March 16th. On March 24 the judge commented that the government's motion for reconsideration was untimely. The notice of appeal on behalf of the government was filed on March 22, 1982. The certification by the district attorney pursuant to 18 U.S.C. § 3731 was also filed on March 22nd.

THE ISSUE AS TO TIMELINESS OF THE APPEAL

The authorization for the appeal of interlocutory orders in criminal cases is given in 18 U.S.C. § 3731. This provides in pertinent part as follows:

An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.

Also included is the requirement "that the appeal shall be taken within thirty (30) days after the decision, judgment or order has been rendered and shall be diligently prosecuted."

The right to appeal is strictly circumscribed by the statute in question. The question is whether the appeal was taken within thirty days of the interlocutory decision. In addition Rule 4(b) of the Federal Rules of Appellate Procedure supplements § 3731. That provides that the government must file its notice of appeal in the district court "within thirty days after the entry of the judgment or order appealed from. A judgment or order is entered within the meaning of this subsection when it is entered on the criminal docket."

The government contends that it is appealing from the trial court's denial of the motion to reconsider which was entered on March 16. The government asserts that this March 16 order is the only final order on similar acts and its appeal six days later is thus timely. We disagree. Our conclusion is that the final order was entered on February 4th, 1982 and that the time commenced to run on that date.

Appellant also claims that the motion to reconsider tolled the thirty day period because it was filed within thirty days from the time the district court corrected its February 4th order on February 12th. The third point on behalf of the government is that the thirty day limitation in § 3731 is not jurisdictional.

THE FINALITY OF THE ORDER AND LACK OF TIMELINESS

The notice of appeal filed March 22, 1982 is not timely for the reason that the final order was entered on February 4, 1982. There is not the slightest ambiguity with respect to this final order being the first and final order which was entered. The February 4th decision plainly excludes the similar acts evidence.

In the order with the typographical error mentioned above the court stated that "(n)o evidence concerning acts not charged in the specific three counts of the indictment to be tried will be admitted and therefore no instructions will be given to the jury about any matters which are not contained in the evidence." A second order of the same date given by the trial court, in responding to the defendant's motion for clarification stated that "(t)he prosecution is ordered not to mention or otherwise introduce evidence regarding any counts that have been dismissed or any counts which are not being tried at the trial commencing March 29, 1982." This served as an entry of a judgment ruling out the other counts. Because the number "three" was changed to "two" in the first order is not to be considered as a tolling of the notice period until February 12th, at which time the change was made. See United States v. 1,431.80 Acres of Land 466 F.2d 820, 822 (8th Cir. 1972) (per curiam); Albers v. Gant, 435 F.2d 146 (5th Cir. 1970).

The government seeks to overcome this argument. It does so by contending that the trial court was considering "changing its mind" at the hearings of February 12 and March 11 and 12 and that thus the February 4 order was not the order which had to be appealed. The answer to this is that at the February 12th hearing it was defense counsel who pointed up the error in referring to the counts to be tried on March 29th as numbering three instead of two. The government did not claim to have any misunderstanding as to which counts were to be tried and which counts were to be excluded. Furthermore, at this February hearing after the court summarized its ruling of February 4, including the exclusion of similar acts evidence, the government was asked if the summary met with the government's understanding of those orders and the United States attorney who was before him acknowledged his concurrence. So this colloquy did not create a new occasion for the recommencing of the running of the time.

The only colloquy that could remotely be regarded as some kind of reconsideration of the February 4 order occurred over the scope of the exclusion. Counsel for both sides acknowledged that the February 4 order excluded evidence from the case-in-chief. Nevertheless defense counsel wanted an ironclad assurance that such evidence would be excluded from government rebuttal. The court clarified that by saying what is "true in every case", that if the defendant opens the door to the similar acts evidence the government can come forward with rebuttal evidence. This is not a reopening, nor is it an amendment to the earlier order. The court was merely giving an explanation of what counsel on both sides knew from long-established trial practice.

The government is here appealing the trial court's exclusion of the similar acts from its case-in-chief, an order which was plainly made on February 4th. No modification of this occurred on February 12th or any date, including March 11th and 12th or March 16th. From February 4th onward the government reasonably should have been aware that the court intended to keep out evidence of the Hogue and Crider bombs from the March 29th trial. See Moorer v. Griffin, 575 F.2d 87 (6th Cir. 1978). The time to appeal then necessarily ran from the moment the clerk entered judgment and the order, even though the trial court later discussed the matter and clarified the original judgment.

As far as the trial judge was concerned he was free to modify or even reverse his February 4th order. He had the power to reconsider his prior rulings up until and including the trial. The final order had already been...