U.S. v. Siviglia

• Citation: 686 F.2d 832
• Decision Date: 23 June 1982
• Docket Number: 79-2180,Nos. 79-1004,s. 79-1004
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph A. SIVIGLIA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 832

686 F.2d 832

UNITED STATES of America, Plaintiff-Appellee, v. Joseph A. SIVIGLIA, Defendant-Appellant.

Nos. 79-1004, 79-2180.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Dec. 16, 1980.

Decided June 15, 1981.

On Rehearing En Banc June 23, 1982.

Hank Farrah of Hank Farrah and Associates, Albuquerque, N. M. (Robert N. Singer and W. John Brennan of Coors, Singer, Anaya, Brennan & Stratton, Albuquerque, N. M., with him on briefs), for defendant-appellant.

Don J. Svet, Asst. U. S. Atty., Albuquerque, N. M. (R. E. Thompson, U. S. Atty. and Richard J. Smith, Asst. U. S. Atty., Albuquerque, N. M., with him on briefs), for plaintiff-appellee.

Before SETH, Chief Judge, and BARRETT and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

Joseph Siviglia (Siviglia) appeals his jury conviction, following retrial, of one charge of conspiracy to transport, receive and conceal stolen motor vehicles in violation of 18 U.S.C.A. § 371, three charges of transporting

stolen motor vehicles in violation of 18 U.S.C.A. §§ 2313 and 2, and two charges of receiving stolen vehicles in violation of U.S.C.A. § 2313. The second trial commenced on September 18, 1978. The jury verdict of guilty on all counts was returned on the tenth day of trial.

Litigative and Procedural Background

Siviglia was convicted in 1976 following his first trial which lasted approximately ten days. He was charged identically there with the charges (counts) upon which he was convicted as above related at his retrial. Siviglia was originally tried jointly with Jeff Ralph Caruthers, Donnie Clay Shafer and Ronald McIntyre for conspiracy to transport motor vehicles and the receipt and possession of same in violation of U.S.C.A. § 2312 and 371. Each case was consolidated upon appeal, resulting in this court's unpublished opinion entitled United States of America v. Jeff Ralph Caruthers, Donnie Clay Shafer, Ronald McIntyre, and Joseph A. Siviglia, Nos. 76-1911, 76-1912, 76-1913 and 76-1914 (10th Cir., filed June 5, 1978), hereinafter referred to as slip opinion. The convictions of Caruthers, Shafer and McIntyre were affirmed. This court reversed and remanded for a new trial as to Siviglia, holding that certain comments made by the prosecutor in the course of closing arguments:

... constituted gross prosecutorial misconduct requiring reversal of Siviglia's conviction, even though no trial objection was lodged. The statements constituted plain error affecting substantial rights. Fed.Rules Cr.Proc. rule 52(b), 18 U.S.C.A. The prosecutor did, by these remarks, divert the trial and the attention of the jury to a trial of Siviglia's attorney. If the witness Trower did lie, it was a matter for the jury to consider in deciding the case. The jury was not called upon to decide who, if anyone, asked him to lie. This was a collateral matter. Thus, the prosecutor's statement was both personal and vindictive, directed to Siviglia's attorney, and for all practical purposes to Siviglia. Why Trower lied, if he did, had nothing to do with the guilt or innocence of Siviglia.

(Slip opinion, p. 33; Barrett, Circuit Judge, dissenting).

This court thus held that the prosecutor's remarks were so improper that Siviglia was effectively denied a fair trial and effective assistance of counsel. On that appeal, Siviglia did challenge the sufficiency of the evidence to sustain his conviction. We rejected that contention and observed:

... This allegation is totally without merit. The evidence of Siviglia's participation and his prominent role in transporting, financing and reselling the stolen cars was overwhelming.

(Slip opinion, p. 24).

Siviglia does not challenge the sufficiency of the evidence on appeal from his conviction on retrial. His challenges involve claimed trial court errors. We need not enumerate them, however, inasmuch as the jurisdictional issue is dispositive.

Following Siviglia's conviction on retrial, he appealed here in United States v. Siviglia, No. 79-1004. During the pendency of that appeal, and prior to its disposition on the merits, Siviglia filed a motion with this court to remand to the District Court for consideration of his motion for grant of a new trial based on alleged newly discovered evidence. This court granted the remand on September 7, 1979.

Thereafter, on October 15, 1979, the District Court denied Siviglia's motion for new trial based on newly discovered evidence. A timely appeal was taken by Siviglia from that denial on October 24, 1979, and docketed here as United States v. Siviglia, No. 79-2180.

On October 25, 1979, Siviglia filed an amended notice of appeal incorporating the substantive issues he raised in Case No. 79-1004 prior to its remand with his challenge to the District Court's denial of his motion for new trial. We hereby recall the mandate in Case No. 79-1004. This opinion is issued under consolidated dockets Nos. 79-1004 and 79-2180.

Our Jurisdiction

Notwithstanding the fact that neither party has raised the issue of this It is clear that the issue raised in Siviglia's Case No. 79-2180, i.e., whether the trial court, following his conviction on retrial, abused its discretion in denying his motion for dismissal or for a new trial based upon newly discovered evidence, is properly before this court. We hold that this contention is wholly without merit. The record establishes that Siviglia could have readily ascertained the existence of the alleged newly discovered evidence with the exercise of due diligence. It is our view that the so-called newly discovered evidence would not have altered the result of the jury decision relative to his guilt.

court's jurisdiction to hear this consolidated appeal, jurisdictional questions are of primary consideration and can be raised at any time by courts on their own motion. McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173 (1950); First State Bank, etc. v. Sand Springs State Bank, 528 F.2d 350 (10th Cir. 1976); Bledsoe v. Wirtz, 384 F.2d 767 (10th Cir. 1967). Lack of jurisdiction cannot be waived and jurisdiction cannot be conferred upon a federal court by consent, inaction or stipulation. California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972); Natta v. Hogan, 392 F.2d 686 (10th Cir. 1968). "If the parties do not raise the question of lack of jurisdiction, it is the duty of the federal court to determine the matter sua sponte." Basso v. Utah Power and Light Company, 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking. Mitchell v. Maurer, 293 U.S. 237, 55 S.Ct. 162, 79 L.Ed. 338 (1934); Citizens Concerned, etc. v. City and County of Denver, 628 F.2d 1289 (10th Cir. 1980).

We move now to consideration of the threshold question whether this court is vested with jurisdiction of the issues presented by Siviglia in his direct appeal in Case No. 79-1004. He there contends that, upon retrial, the District Court erred in that: (a) retrial after reversal for prosecutorial misconduct violated the double jeopardy clause of the Fifth Amendment; (2) in denying him a continuance to present evidence impeaching one of the Government's key witnesses or showing the Government's knowledge of same; (3) he was denied his constitutional right to a speedy trial; and (4) sentencing him for transporting and receiving the same vehicle. For reasons hereinafter set forth, we hold that we do not have jurisdiction to decide these appellate contentions. The appeal must be dismissed.

It is settled that under Fed.Rules Cr.Proc. rule 33, 18 U.S.C.A., a district court may entertain a motion for new trial during the pendency of an appeal, although the motion may not be granted until a remand request has been granted by the appellate court. United States v. Wilson and Abernathy, Unpublished Nos. 79-2142 and 79-2151 (10th Cir., filed June 4, 1980); United States v. Ellison, 557 F.2d 128 (7th Cir. 1977), cert. denied, 434 U.S. 965, 98 S.Ct. 504, 54 L.Ed.2d 450 (1977); United States v. Frame, 454 F.2d 1136 (9th Cir. 1972), cert. denied, 406 U.S. 925, 92 S.Ct. 1794, 32 L.Ed.2d 126 (1972); Ferina v. United States, 302 F.2d 95 (8th Cir. 1962), cert. denied, 371 U.S. 819, 83 S.Ct. 35, 9 L.Ed.2d 59 (1962).

A difficult question concerns the problem of a remand motion made prior to the district court's consideration of the motion for new trial. In United States v. Phillips, 558 F.2d 363 (6th Cir. 1977), the appellant's motion for new trial was denied on the ground the proper procedure requires that the motion for new trial be first filed in the district court. The court, however, denied the remand motion without prejudice to resubmission in the event the district court certified its intention to grant the new trial. Thus, the court effectively circumvented the instant problem by refusing to entertain a remand motion unless (1) a motion for new trial is first made in the district court, and (2) the district court certifies its intention to grant the motion.

Faced with a similar circumstance, the court in United States v. Fuentes-Lozano, 580 F.2d 724 (5th Cir. 1978), treated a motion for a temporary remand for the purpose Thus, in one case the appellate court, in United States v. Phillips, supra, expressed its policy of dismissing such a motion unless the district court first certifies its intent to grant a new trial, while the court, in United States v. Fuentes-Lozano, supra, granted the motion in the interests of expediency. We observe that these alternatives are not mutually exclusive nor do they exhaust all possibilities, i.e., temporary or limited remand.

of lodging a motion for new trial in the district court as an unqualified motion for remand. The motion was granted. The court upheld the propriety of the district court entertaining a motion for new trial before remand in accordance with the general rule, while at the same...