U.S. v. Podolsky, 98-1284

• Decision Date: 10 September 1998
• Docket Number: No. 98-1284,98-1284
• Citation: 158 F.3d 12
• Parties: UNITED STATES of America, Appellee, v. Stephen PODOLSKY, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 12

158 F.3d 12

UNITED STATES of America, Appellee, v. Stephen PODOLSKY, Defendant, Appellant.

No. 98-1284.

United States Court of Appeals First Circuit.

Heard Sept. 10, 1998.

Decided Oct. 8, 1998.

Michael J. Traft, with whom Janice Bassil and Carney & Bassil were on brief, for appellant.

Jennifer Zacks, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for the United States.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

SELYA, Circuit Judge.

Horace Greeley, who commonly is thought to have originated the hortatory phrase "Go west, young man, go west," recognized that travel can provide a gateway to fame and fortune. ¹ Here, however, inordinately extensive travel proved too much of a good thing for Dr. Stephen Podolsky. In the end, Podolsky's appeal turns not on his peripatetic exploits, but on the barest procedural question. Resolving that question, we conclude that Podolsky, for the most part, did not challenge the district court's rulings in a timely fashion. On the lone issue that is properly before us, his appeal lacks merit.

I. BACKGROUND

Podolsky ran afoul of the law after he planned, orchestrated, and executed an elaborate airline ticket ruse. The scheme operated substantially as follows. Podolsky would purchase a "conjunction" ticket in his own name or that of a family member. Such tickets route the traveler through four or more legs from the start of a journey to the final destination. Airlines package these tickets in at least two separate booklets, each with a cover page listing the itinerary and fare for the entire trip. Podolsky would split the ticket packages to make each of them appear to be a complete conjunction ticket. He then would take each faux ticket (actually a partial ticket) to an airline facility (often using different ticket offices of different airlines in different cities) and secure a refund for the full value of the original ticket. As a variation, Podolsky sometimes would exchange the faux ticket for a new (authentic) conjunction ticket and would use the new ticket to restart the process. Although the parties' estimates of the losses that the airlines suffered differ substantially, Podolsky concedes that he completed hundreds of thousands of dollars in airline transactions in this fashion during the late 1980s and early 1990s.

The scheme came to light in the spring of 1993 and the authorities thereafter recovered several hundred unused airline tickets that were in Podolsky's possession. ² Following a lengthy investigation, a federal grand jury charged Podolsky with numerous counts of mail and wire fraud. See 18 U.S.C. §§ 1341, 1343 (1994). Podolsky pled guilty to eleven counts. At a disposition hearing held on February 20, 1997, the district court departed downward in response to evidence that Podolsky suffered from an obsessive-compulsive disorder. See USSG § 5K2.13 (1997). The court imposed a 36-month term of probation and ordered Podolsky to pay a special assessment of $550 and $77,623 in restitution (the latter amount to be distributed among four airlines).

The restitution figure represented the net difference between credits and debits reflected on twelve credit card accounts in Podolsky's name ($109,678), less the aggregate finance charges reflected on those same account statements ($32,055). Podolsky apparently had other credit card accounts, but no records could be obtained for them. Thus, the district judge left open a window of opportunity at sentencing, stating that the restitution order could be remitted if (and to the extent that) Podolsky submitted to the probation department additional factual evidence suggesting the propriety of such an adjustment. The judgment embodying the sentence was entered on the court docket on March 20, 1997. Podolsky did not appeal.

On August 26, 1997, Podolsky filed a motion for return of property (Motion No. 1). Invoking Fed.R.Crim.P. 41(e), this motion sought recoupment of the unused airline tickets that he earlier had provided to TWA and the FBI. ³ See supra note 2. The government interposed an objection and the court summarily denied the motion on September 23, 1997.

Apparently not realizing that Motion No. 1 already had been decided, Podolsky filed a response to the government's objection on October 17, 1997. He simultaneously filed a motion for review of restitution (Motion No. 2). Upon learning the fate of Motion No. 1, Podolsky's attorney wrote a letter dated November 3, 1997, requesting that the October 17 rejoinder be treated as a motion for reconsideration. The court did not grant the request, nor was it obligated to do so. See Massachusetts Sch. of Law v. American Bar Ass'n, 142 F.3d 26, 45 n. 16 (1st Cir.1998) (explaining that a letter that "does not appear in the docket ... cannot be construed as a motion" for purposes of testing a party's compliance with the court's pretrial scheduling order); cf. Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 528 (1st Cir.1991) (rejecting an appellant's assignment of error when the appellant sought relief below only by means of an undocketed letter). The court did address Motion No. 2, however, denying it in a footnote order entered on February 12, 1998. Podolsky filed his notice of appeal on February 23, 1998.

II. THE JURISDICTIONAL ISSUE

The threshold issue in this appeal concerns the existence vel non of appellate jurisdiction. Because Podolsky's statement of his claims is somewhat muddled, we consider several possibilities.

1. To the extent that Podolsky seeks to appeal the judgment itself (including the order of restitution), his effort fails because he did not notice his appeal until almost a year after the district court entered the judgment. A sentence imposing an order of restitution is a final judgment, regardless of whether the restitution later may be corrected, amended, or adjusted. See 18 U.S.C. § 3664(o) (Supp.1996). A defendant in a federal criminal case must appeal within ten days after the entry of the final judgment or order, see Fed. R.App. P. 4(b), and Podolsky did not do so. Inasmuch as the obligation to notice an appeal within the time prescribed by law is mandatory and jurisdictional, such a failure of compliance typically results in a complete loss of appeal rights. See United States v. Morillo, 8 F.3d 864, 867 (1st Cir.1993). So it is here.

2. Nor do the provisions of Fed. R.App. P. 4(b) redound to Podolsky's benefit. This rule provides in substance that the timely filing of certain post-judgment motions in a criminal case tolls the running of the appeal period, subject to a fresh start after the resolution of the last such motion. However, the motions that Podolsky filed are not among those specifically identified in the rule, ⁴ and, thus, are not of the type or kind that normally suffice to suspend the running of the appeal period.

To be sure, some "[p]ost-judgment motions apart from those expressly enumerated in Fed. R.App. P. 4(b) can have the same suspensory effect." Morillo, 8 F.3d at 867. Yet, even assuming arguendo that one of Podolsky's post-judgment motions was of a suspensory character under the Morillo exception--and we see no basis in the record for any such assumption--the end result would be unaffected. Suspensory motions only extend the appeal period if timely filed, see id. at 869, and timeliness, in this context, requires at a minimum filing within the appeal period. Podolsky's earliest motion was not filed until almost five months after the entry of judgment against him. To allow so belated a motion to have suspensory effect would unreasonably expand the narrow Morillo exception, thus threatening to engulf the rule and undermine the finality of judgments.

3. To the extent that Podolsky's appeal may be understood as an appeal from the district court's denial of Motion No. 1, it is similarly unavailing. Motion No. 1 sought the return, under Fed.R.Crim.P. 41(e), ⁵ of the airline tickets seized from Podolsky by TWA and the FBI. The parties dispute whether Motion No. 1 is merely a garden-variety motion in a criminal case, or, instead, a separate civil complaint. This distinction is potentially important, because the rules governing criminal and civil appeals differ materially. Even so, it is unnecessary for us to resolve the question; Podolsky's attempted appeal of the denial of Motion No. 1 is not timely under either standard. We explain briefly.

If Motion No. 1 is deemed a criminal motion, we lack jurisdiction over this appeal. The district court denied Motion No. 1 on September 23, 1997, and Podolsky did not notice his appeal until February 23, 1998. Thus, Podolsky failed many times over to satisfy the applicable ten-day requirement. See Fed. R.App. P. 4(b).

If, on the other hand, Motion No. 1 was not a motion at all, but, as Podolsky now asseverates, was the functional equivalent of a newly instituted civil action, ⁶ then its denial would be subject to the so-called "separate document" rule, requiring that a judgment in a civil case be recorded on a separate document. See Fed.R.Civ.P. 58 ("Every judgment shall be set forth on a separate document."); see also Fiore v. Washington County Community Mental Health Ctr., 960 F.2d 229, 233-36 (1st Cir.1992) (en banc) (explicating and applying the separate document rule). Nevertheless a district court's failure to memorialize its disposition of a motion on a separate document does not expose its order to appeal in perpetuity. Rather, as we explained in Fiore,

it [is] appropriate, absent exceptional circumstances, to infer waiver where a party fails to act within three months of the court's last order in the case.... A party wishing to pursue an appeal and awaiting the separate document of judgment from the trial court can, and should, within that period file a motion for entry of judgment.

Id. at 236. In this instance, the district court denied Motion No. 1 on September...