U.S. v. Tindle

• Decision Date: 03 October 1975
• Docket Number: No. 75-1317,75-1317
• Citation: 173 U.S.App.D.C. 77,522 F.2d 689
• Parties: UNITED STATES of America v. Isaac J. TINDLE, Appellant. . Order denying motion filed
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 689

522 F.2d 689

173 U.S.App.D.C. 77

UNITED STATES of America v. Isaac J. TINDLE, Appellant.

No. 75-1317.

United States Court of Appeals, District of Columbia Circuit.

Order denying motion filed Oct. 3, 1975.

Nov. 10, 1975.

Earl J. Silbert, U. S. Atty., John A. Terry and Joseph Guerrieri, Jr., Asst. U. S. Attys., were on the motion for appellee.

Jerome B. Libin, Washington, D. C. (appointed by this Court), was on the motion for appellant.

Before FAHY, Senior Circuit Judge, and LEVENTHAL, Circuit Judge.

PER CURIAM:

Isaac Tindle has a direct appeal from convictions for armed kidnapping, armed robbery, assault with a dangerous weapon and extortion currently pending in this Court (No. 74-1735). We are not here concerned with the merits of that appeal. ¹ On October 25, 1974, the chief judge granted Tindle's unopposed motion to postpone filing his brief, until 21 days after the District Court ruled on a DeCoster motion for a new trial he contemplated making. ² That motion was filed in December 1974, and denied without a hearing by the District Court on January 8, 1975. A motion to reconsider was denied on January 24, 1975. ³ On March 14, 1975, appellant filed a notice of appeal. It is the government's motion to dismiss this second appeal (# 75-1317) as untimely that is now before us.

It should be noted that in this court, by order of the chief judge dated April 2, 1975, the two appeals were consolidated, ⁴ and by the clerk's order dated April 17, 1975, the court granted appellee's motion to hold the direct appeal No. 74-1735 in abeyance pending resolution of its motion to dismiss in No. 75-1317.

I.

The government's motion to dismiss argues that this appeal must be dismissed because Rule 4(b) of the Federal Rules of Appellate Procedure requires notice of appeal in a criminal case "within 10 days after the entry of the judgment or order appealed from." As this requirement is jurisdictional, failure to comply with the deadline imposed by Rule 4(b) mandates dismissal. ⁵

Appellant opposed dismissal by characterizing this appeal as one from an order filed pursuant to 28 U.S.C. § 2255, ⁶ that is governed by Rule 4(a), which provides for notice of appeal in civil cases within 60 days of the adverse action, when the United States is a party.

II.

DeCoster contemplates that when counsel (usually appellate counsel) discovers an ineffective assistance of counsel issue during the pendency of a direct appeal, the proper procedure is for counsel to raise that issue by a motion for a new trial in the District Court. ⁷ The problem is that often, as in this case, the DeCoster issue is not discerned until long after the time limit of Rule 33 (Federal Rules of Criminal Procedure) has expired. ⁸ This means that the ineffective assistance argument can then be placed before the District Court only through a § 2255 motion. However, entertainment by the District Court of a § 2255 motion during the pendency of a direct appeal from the same conviction violates the general Womack rule of judicial administration. ⁹

In order to give effect to the salutary procedure instituted by this Court in DeCoster we feel an appropriate adaptation of the Womack rule is in order. Consequently, we hold that filing of a DeCoster motion for a new trial constitutes the "special circumstances" set forth in Womack as permitting consideration of a § 2255 motion in District Court during the pendency of a direct appeal. ¹⁰ We also approve of the course taken by the District Court in this case, of considering technically untimely new trial motions, ¹¹ by entertaining them as motions under 28 U.S.C. § 2255. Upon denial, the time within which notice of appeal may be filed is governed by Rule 4(a). Under this analysis, the notice of appeal in No. 75-1317 was timely filed. ¹² Appellee's motion to dismiss is denied.

So ordered.

1 According to the prosecution's testimony, the victim, Payton Manning, Sr., a "retired" gambler and bookmaker, was accosted on May 9, 1972, outside Evelyn's PastelRoom, near 12th & U St., N.W., by two men, Tindle, whom he didn't know and Raymond "Cadillac" Smith, with whom he was acquainted. They demanded "big" money. Tindle pulled a gun on Manning and the two forced Manning at gunpoint into a red over white Cadillac, driven by one Freddie Jackson, bearing D.C. tags, FEFE. They drove to Manning's house where Smith accompanied him upstairs (Tindle remained below) and took $4500 from his bedroom and demanded that he produce $5000 more the next day. The two left and were arrested a short time later at the home of Smith's girlfriend "Fefe." Smith, Tindle and Jackson were indicted on May 30, 1972. Jackson's case was severed, he pled guilty to a robbery count and received a 3 to 9 year sentence. Smith and Tindle went to trial on November 20, 1972. The first day of trial featured strong direct testimony of Manning, corroborated by his son (at the house) and one Gladys Irby, a patron of Evelyn's. Tindle failed to appear for the second day. Smith was found guilty on all counts, sentenced to an effective term of 6-18 years, and his convictions were affirmed by this court on March 15, 1974 without opinion.

Tindle was finally recaptured. After some delay, occasioned by the need to ascertain his competence and the replacement of his original counsel, Mr. Lowy by Mr. Cope, the matter finally came on for retrial on May 28, 1974. By the time of retrial, Manning, Sr.'s heart condition precluded him from testifying and Mrs. Irby had disappeared. Their testimony in the Smith trial was read to the jury. Tindle was found guilty on all counts, and later sentenced to an effective term of 20 months 5 years consecutive to a sentence of 5-15 years.

2 See United States v. DeCoster, 159 U.S.App.D.C. 326, 333-34, 487 F.2d 1197, 1204-05 (1973). Mr. Lowy, Tindle's first counsel, represented Tindle through the aborted first trial, but withdrew in January, 1974 in the face of Tindle's continued hostility. As early as February, 1974, Tindle sought dismissal of his second counsel, Mr. Cope.

Appellate counsel, Jerome Libin (appointed by this court on July 19, 1974) first alluded to a DeCoster issue in September, in seeking an extension of time to file his brief. The brief in the direct appeal, filed February 28, 1975, presents an ineffective assistance of counsel claim.

3 Appellant's motion for new trial was premised upon the contention that Attorney Cope's refusal to interview the seven witnesses he suggested was a Prima facie violation of the reasonable investigation requirement of DeCoster. He also argued that counsel's failure to interview Manning and Irby between trials was a violation of his Sixth Amendment rights. Judge Corcoran's denial set forth that appellant had made no showing of any attempt to contact these allegedly crucial witnesses, nor any showing that their testimony if offered could possibly change the result. See United States v. Anderson, 165 U.S.App.D.C. 390, 404-06, 509 F.2d 312, 326-28 and n. 105 (1974), Cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 672 (1975). In his motion for reconsideration, appellant denied that he had such a burden of persuasion, but attempted to meet it by submitting a number of affidavits from some of these alleged witnesses. Reconsideration was denied by order without elaboration.

4 In DeCoster, the court expressed the expectation that in the future post-trial ineffective assistance motions for a new trial when denied and appealed would be consolidated with the appeal from the conviction. See DeCoster, 159 U.S.App.D.C. at 334, 487 F.2d at 1205. The consolidation of these cases probably was effected to conform to this expectation expressed in DeCoster. Consolidation does not of course preclude dismissal if one of the cases was not appealed in timely fashion.

5 See United States v. Robinson, 361 U.S. 220, 224 and n.4, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960). Rule 26(b) of the Federal Rules of Appellate Procedure precludes enlargement of the time for filing a notice of appeal.

6 The genesis of this argument is the ruling by Judge Corcoran that since the motion for a new trial although made under Rule 33 was untimely as such, he could consider it, if at all, only as a § 2255 motion. He did consider it as such and rejected it.

7 In section V of DeCoster the contemplated procedure is explicated:

"Much of the evidence of counsel's ineffectiveness is frequently not reflected in the trial record (e. g., a failure to investigate the case, or to interview the defendant or a witness before trial). As a result, ineffectiveness cases have often evolved into tests of whether appellate judges can hypothesize a rational explanation for the apparent errors in the conduct of trial. But neither one judge's surmise nor another's doubt can take the place of proof. Thus, when a claim of ineffective assistance is contemplated, it should first be presented to the district court in a motion for a new trial. In such proceeding, evidence Dehors the record may be submitted by affidavit, and when necessary the district judge may order a hearing or otherwise allow counsel to respond. If the trial court is willing to grant the motion, this court will remand. If the motion is denied, the appeal therefrom will be consolidated with the appeal from the conviction and sentence. The record of any hearing held on the motion, and any documents submitted below, will become part of the record on appeal." See 159 U.S.App.D.C. at 333-34, 487 F.2d at 1204-05. (footnotes eliminated)

8 Rule 33 provides:

The court on motion of a defendant may grant a new trial to him if required in the interest of justice. If...