U.S. v. Stolarz, 76-1857

• Decision Date: 20 December 1976
• Docket Number: No. 76-1857,76-1857
• Citation: 547 F.2d 108
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John D. STOLARZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 108

547 F.2d 108

43 A.L.R.Fed. 808

UNITED STATES of America, Plaintiff-Appellee, v. John D. STOLARZ, Defendant-Appellant.

No. 76-1857.

United States Court of Appeals, Ninth Circuit.

Dec. 20, 1976.

George R. Nock, Associate Professor (argued), of University of Puget Sound, School of Law, Tacoma, Wash., for defendant-appellant.

John S. Obenour, Asst. U.S. Atty. (argued), Seattle, Wash., for plaintiff-appellee.

Before TRASK and ANDERSON, Circuit Judges, and WOLLENBERG, ^* District Judge.

WOLLENBERG, District Judge:

In a one count indictment, appellant, then a prisoner at the United States Penitentiary at McNeil Island, Washington, was charged with assaulting another prisoner with intent to murder in violation of 18 U.S.C. § 113(a). Over appellant's objection, the jury was instructed that they might find him guilty either of the offense charged or the "lesser included offense" of assault with a dangerous weapon with intent to do bodily harm, 18 U.S.C. § 113(c). The jury subsequently found the appellant not guilty of the crime charged in the indictment, but found him guilty of the "lesser included offense". The principal argument advanced in this appeal is the impropriety of permitting the jury to consider a charge of assault with a dangerous weapon with intent to do bodily harm.

At the outset, however, we are confronted by a jurisdictional problem because of an apparent failure to timely file a notice of appeal in accord with the provisions of Rule 4(b), Federal Rules of Appellate Procedure. Compliance with Rule 4(b) is both mandatory and jurisdictional. Smith v. United States, 425 F.2d 173 (9th Cir. 1970). The problem was raised by the Court at oral argument and the parties have submitted additional written arguments on the matter. We conclude that we are presently unable to consider the merits of the appeal.

Rule 4(b) provides, in pertinent part, that:

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. . . . A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket.

In this case, judgment was pronounced on March 12, 1976. The judgment was filed on March 15 and entered on the docket sheet on that date. The notice of appeal, however, was not filed until April 12, well over the ten-day period commencing on March 15. Consequently, the appeal must be dismissed as untimely unless it can be saved by one of the exceptions urged by appellant.

Appellant points out that following the jury's verdict on February 5, 1976, he filed a motion for a new trial "upon the grounds that there were errors of law committed during the trial". Although dated February 12, a handwritten notation on the copy of the motion filed with the court indicates that the motion was apparently served on the government on February 13. The motion was filed with the clerk of the court on February 13. The district judge never ruled on this motion. However, we reject appellant's argument that this set of circumstances operated to extend the time to file a notice of appeal beyond the 10 days proscribed in Rule 4(b). That rule does provide that:

If a timely motion . . . 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. (Emphasis supplied)

Since appellant's motion for a new trial was not made within seven days after the date of the jury's verdict, it was not timely under Rule 33, Federal Rules of Criminal Procedure. ¹ An untimely motion for a new trial cannot operate to extend the time to file a notice of appeal. 9 Moore's Federal Practice P 204.18 (1975).

Furthermore, even if the new trial motion had been timely served, the time to file a notice of appeal would still have not been extended. Rule 4(b) clearly contemplates that in some instances a decision denying a motion for a new trial will be made after judgment, but we do not believe that it contemplates an open-ended period in which to appeal when a decision on a motion for a new trial is never explicitly made. Ordinarily, "(W)hen the trial judge acts in a manner which clearly indicates his intention that the act shall be the final one in the case, and a notation of the act has been entered on the docket, the time to appeal begins to run." Rubin v. United States, 488 F.2d 87, 88 (5th Cir. 1973). When a district judge sentences a convicted defendant to a term of imprisonment and judgment is entered, and when, as here, defense counsel does not point out to the court at any time during the sentencing proceedings or within 10 days after entry of judgment that a motion for a new trial is pending, we believe that the entry of judgment amounts to an implicit denial of the motion for a new trial. In this situation, the time to file a notice of appeal runs from the entry of judgment. ²

Another exception to the 10-day requirement for the filing of a notice of appeal, the power of the district court to extend the time for filing of the notice for an additional period of up to 30 days, is also urged by appellant. Rule 4(b) provides that:

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.

Since this permits notices of appeal to be filed up to 40 days after entry of judgment, and since appellant's notice was filed within that 40-day period, he urges acceptance of a rule developed in the Eighth Circuit that the district court's acceptance of a notice of appeal filed after the tenth and up to the fortieth day after entry of judgment is construed as a grant of additional time to file the notice under Rule 4(b). See United States v. Williams, 508 F.2d 410 (8th Cir. 1974); United States v. Mills, 430 F.2d 526 (8th Cir. 1970), cert. denied 400 U.S. 1023, 91 S.Ct. 589, 27 L.Ed.2d 636 (1971). However, we decline to subscribe to such a rule.

We cannot accept the Mills reasoning that mere acceptance of the notice of appeal outside the 10-day period is a grant of additional time. There is no indication that this problem was ever brought to the attention of the district judge, and acceptance of the notice by a member of the clerk's staff does not amount to an action by the district court that is contemplated by Rule 4(b). Unlike the situation with the new trial motion discussed previously, here there is no action by the district judge that can be construed as ruling upon the problem.

In addition, adoption of the rule urged by appellant reads out of Rule 4(b) the qualification that there must be a "showing of excusable neglect" before an extension of time may be granted. Nothing indicating excusable neglect is referred to in the notice of appeal filed in this case. While the Eighth Circuit's approach does simplify the problem, we cannot by-pass the clear requirements of Rule 4(b) in an area so bound up with jurisdictional considerations. Cf. Rothman v. United States, 508 F.2d 648, 652-653 (3rd Cir. 1975).

Finally, appellant suggests that a remand to the district court for a determination on the issue of...