U.S. v. Roberts

Decision Date18 March 1985
Docket NumberNo. 83-3294,83-3294
Citation749 F.2d 404
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Fred ROBERTS, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Andrea L. Davis, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Allen E. Shoenberger, Chris Hurley, Law Student, Chicago, Ill., for defendant-appellant.

Before CUMMINGS, Chief Circuit Judge, CUDAHY, Circuit Judge, and GORDON, Senior District Judge. *

CUDAHY, Circuit Judge.

Appellant Fred Roberts appeals from an order of the district court under which he is required to forfeit a 1935 Packard automobile pursuant to 18 U.S.C. Sec. 1963. The forfeiture was agreed to in a plea bargain Roberts struck with the government in April, 1983. He now argues that the Packard was not subject to forfeiture, and that nothing he agreed to establishes either that it was purchased with profits from an illegal enterprise, or that it was part of the assets of an illegal enterprise.


On May 4, 1982, a grand jury returned a seven count indictment charging the defendant Fred Roberts with mail fraud in violation of 18 U.S.C. Sec. 1341 and with making false statements in an application for a loan from the Small Business Association, in violation of 18 U.S.C. Sec. 1001. The defendant entered a plea of not guilty. A thirty-four count superseding indictment was returned on August 3, 1982, in which the defendant was charged with mail fraud, bankruptcy fraud, obstruction of justice and racketeering, in violation of 18 U.S.C. Secs. 1341, 153, 152, 1501, 1503 and 1962. On August 16, 1982, the defendant again entered a plea of not guilty.

On April 7, 1983, pursuant to a written plea agreement, Roberts pleaded guilty in federal district court to one count of mail fraud and one count of activity in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1961 et seq. He was sentenced to five years imprisonment, and, under 18 U.S.C. Sec. 1963, was to forfeit two video games, forty thousand dollars 1 and a 1935 Packard automobile said to be worth $30,000.

The Packard was apparently to be forfeited as an asset of one of the illegal enterprises, although the agreement is not explicit on this point. According to the plea agreement, Roberts had paid $26,000 toward the purchase price of the car with checks drawn on the corporation the assets of which are to be forfeited; he did this before the time of any of the illegal activity mentioned in either the indictment or the plea agreement. In addition, just before the filing of that corporation's bankruptcy petition Roberts paid the final installment with a corporation check for $2,319.81. 2 Neither the agreement nor anything else in the record before this court indicates whether the Packard's title is in Roberts' name or in the name of the corporation.

Judgment was entered on the docket on June 23, 1983. Because the bankruptcy trustee claimed an interest in the Packard, the forfeiture order on it was delayed and was not entered on the docket until November 30, 1983. On November 21, 1983, just before the forfeiture order was entered, Roberts filed various pro se motions. The motion identified in the docket as motion # 13 was a motion to withdraw the plea made pursuant to Rule 32(d). After the entry of the forfeiture order Roberts wrote to the district court asking whether his motions had been considered before the order was entered. The clerk of the district court responded, in a letter apparently received on December 14, 1983 at the prison at which Roberts was being held, that the court had had Roberts' motions before it when it entered the order. On December 22, 1983, the defendant, acting pro se, filed a notice of appeal.

After entry of the forfeiture order, the court gave the government until December 13, 1983 to respond to defendant's post-trial motions. The record shows no response by the government on or before December 13. In January, 1984, the government's motion to file a late response (blaming its tardiness on a busy schedule) was filed and granted, and the government filed its response. On February 14, 1984, Roberts' post-trial motions 14, 15, 16, 17 and 19 were denied and the government was given until March 30, 1984 to file an additional response to motion # 13, which the district court had decided to treat as a petition under 28 U.S.C. Sec. 2255. The government filed its supplemental response on April 5, 1984.

Motion # 13 is apparently the only motion before the district court at the present time. While there is no jurisdictional bar to the district court's acting on such a motion, it is appropriate for that court to withhold action until this appeal has been disposed of. United States v. Davis, 604 F.2d 474, 482-83 (7th Cir.1979).


The government argues that this court has no jurisdiction to hear this appeal because Roberts' notice of appeal was untimely. Rule 4(b) of the Federal Rules of Appellate Procedure sets a limit of ten days from the entry of judgment, or of the order appealed from, in which to file notice of appeal, in a criminal case. On a showing of excusable neglect made during or after the ten-day period the district court may extend the time for filing for another thirty days. The order appealed from here was entered on November 30, 1983; without an extension Roberts would have had until December 12 to file his appeal. 3 He did not request such an extension; on December 22, 1983, ten days late, he filed, and the district court entered, his notice of appeal.

Although a timely notice of appeal is not jurisdictional in the same sense in which subject matter is jurisdictional United States v. Ford, 627 F.2d 807, 809 (7th Cir.), cert. denied, 449 U.S. 923, 101 S.Ct. 324, 66 L.Ed.2d 151 (1980); 9 MOORE'S FEDERAL PRACTICE p 204.02, the rules governing notice are mandatory, so that this court will not take jurisdiction where they have not been substantially complied with. Where there is no good reason for allowing an appellant the extension of time he neglected to ask for below, the court will not allow such an extension.

On the other hand, we cannot, especially when dealing with prisoners filing on their own behalf, read the details of compliance inflexibly. Where there is good reason for allowing an extension, and the notice has been filed within the forty-day outer limit, we are not obliged to insist upon perfect compliance. In the Notes to the present Rules 3 and 4, the Advisory Committee on Appellate Rules said:

Because the timely filing of a notice of appeal is "mandatory and jurisdictional," ... compliance with the provisions of those rules is of the utmost importance. But ... decisions under the present rules [the former Fed.R.Civ.P. 5(e), 73; Fed.R.Crim.P. 37] which dispense with literal compliance in cases in which it cannot be fairly exacted should control interpretation of these rules.

(Citing Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964); Richey v. Wilkins, 335 F.2d 1 (2d Cir.1964); Halfen v. United States, 324 F.2d 52 (10th Cir.1963); Riffle v. United States, 299 F.2d 802 (5th Cir.1962).)

In Ford, supra, we found jurisdiction, noting that circumstances would have made it an abuse of discretion for the district court to deny an extension. We said:

[I]n a case such as this, in which a "document is filed within the 40-day period which represents a clear assertion of an intent to appeal, courts of appeals have the power to overlook irregularities where fairness and justice so require."

627 F.2d at 811 (quoting United States v. Hoye, 548 F.2d 1271, 1273 (6th Cir.1977).) The court noted that although the notice of appeal was filed with the district court nine days late, it was clear that the prisoner had submitted the notice to prison officials within the ten-day period. In this case, however, Roberts did not, like Ford, submit his notice to prison officials within the time allowed. Roberts did not file until after the ten-day limit had passed, and he did not ask for the thirty-day extension.

Roberts submits that his appeal was filed within the thirty-day extension period and argues that acceptance of the notice of appeal by the district court should be considered an automatic grant of extension of time. He points out that the Eighth Circuit approved such a rule in United States v. Williams, 508 F.2d 410 (1974), where acceptance of a late notice of appeal was construed to be a finding of excusable neglect. Similar rules have been approved in the Fifth, Sixth and Tenth Circuits. See United States v. Lucas, 597 F.2d 243 (10th Cir.1979); United States v. Umfress, 562 F.2d 359 (5th Cir.1977); United States v. Hoye, 548 F.2d 1271 (6th Cir.1977). It is doubtful, however, whether such a broad rule is or ought to be the rule of this Circuit. Because of the routine way in which appeals are handled in the office of the district court clerk, such a rule might effectively abrogate the ten-day limit and replace it with one granting forty days to file.

While there is no automatic thirty-day extension, however, and while Roberts did not have his filing delayed by prison officials, he did remain in correspondence with the district court and actively pursue his litigation. Roberts sent a letter to the district court clerk asking whether his objections had been considered before the forfeiture order was entered; this letter was sent within the ten-day period. The reply was delayed in the prison mail system and was not received until several days after the ten-day deadline for filing had passed. Since the nature of Roberts' appeal depended on the answer to his query, it may arguably be considered a practical pre-condition to the filing of a notice of appeal. At the time in question Roberts was acting on his own behalf and had to depend on the prison mail for his correspondence...

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