United States v. Caraway
Decision Date | 03 August 1973 |
Docket Number | No. 72-2198.,72-2198. |
Citation | 483 F.2d 215 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jo Anna Newby CARAWAY, a/k/a Jo Newby and Daniel Elden Scales, Defendants-Appellants. |
Court | U.S. Court of Appeals — Fifth Circuit |
Melvyn Kessler, Miami, Fla.16 (Court appointed) for Caraway.
Sky E. Smith, Miami, Fla. (Court appointed) for Scales.
Robert W. Rust, U. S. Atty., Lawrance B. Craig, II, Asst. U. S. Atty., Miami, Fla., Elliot L. Richardson, Acting Atty. Gen., Robert A. Patterson, Asst. Atty. Gen., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.
Before JOHN R. BROWN, Chief Judge, and RIVES, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.
It now appears that the indictment underlying the appeal in this matter was dismissed by the district court following reversal by a panel of this court, United States v. Caraway, 5 Cir., 1973, 474 F.2d 25, but prior to the issuance of the mandate of this court and prior to the sua sponte determination of the court to consider the appeal en banc. Based on these facts, the parties urge that the appeal is moot. We agree.
The judgments of conviction giving rise to the appeal as well as the panel opinion of this court, supra, are vacated. The indictment having been dismissed, it will be necessary to remand to the district court only for the purpose of setting aside the judgments of conviction on the ground of mootness. See United States v. Munsingwear, 1950, 340 U.S. 36, 39-40, 71 S.Ct. 104, 95 L.Ed. 36; Troy State University v. Dickey, 5 Cir., 1968, 402 F.2d 515, 516-517; Lebus Regional Director v. Seafarers' Int'l Union, 5 Cir., 1968, 398 F.2d 281, 283, on the procedure to be followed by an appellate court in terminating a case by reason of mootness.
The judgments of conviction and the panel opinion are vacated; the cause is remanded with direction that the judgments of conviction be set aside for mootness.
With deference, I submit that careful consideration of the record facts in connection with well-settled rules of law refutes the holding of the en banc Court that this appeal is moot.
The original panel opinion entered January 15, 1973, directed that the judgments of conviction against Caraway and Scales should be reversed and that their cases should be remanded.1 Sixteen days later, on January 31, 1973, the district court attempted to dismiss the indictments on which the convictions were based. That was five days before the expiration of the twenty-one days usually allowed for the mandate to issue. Rule 41, F.R.A.P. To this good day the mandate has not issued.2
On February 14, 1973, the panel amended its opinion but did not change its decision. Upon receipt of the amended opinion the District Clerk advised the Clerk of this Court of the attempted dismissal of the indictments. On April 4, 1973, the following order was entered in this cause:
The Clerk mailed to all counsel of record a letter specifying a briefing schedule in this appeal and in No. 72-1352, United States v. Sepe, 5 Cir., 474 F.2d 784, which directed counsel as follows:
On May 31, 1973, the United States filed a brief limited to the question of mootness. The "Argument" section is truly brief and can conveniently be quoted:
Instead of filing a brief, the attorneys for the defendants-appellants mailed a letter to the Chief Deputy Clerk, dated May 31, 1973, the body of which reads:
I take no issue with the legal principles stated in the government's "Argument." To the contrary, I think those principles sound when applied to a case in which the mandate has been issued by the appellate court. They simply do not apply to the present case in which no mandate has issued. Peculiarly, the principle last stated does become applicable once the en banc per curiam order in the present case has been entered. Once the en banc Court has held that this appeal is moot, it has no further jurisdiction except for the limited purposes recognized in the cases cited in the en banc order. It does not have jurisdiction to enter what amounts to a decision on the merits of the present appeal by setting aside the judgments of conviction, vacating the panel decision, and — to make doubly certain — remanding the cause with direction that the district court also set aside the judgments of conviction.
Be that as it may, at the risk of being tedious, I have stated in some detail the present status of this appeal, because I submit that the record facts clearly demonstrate that the district court had no jurisdiction to dismiss the indictments on which the convictions were based, and hence that this appeal is not moot.
So far as I am aware, the rule in all courts, both state and federal, is that an appeal, duly perfected, divests the trial court of jurisdiction and transfers jurisdiction to the appellate court where it remains until the appellate proceeding terminates and the trial court regains jurisdiction. As said by Chief Justice Hughes for a unanimous Court in Berman v. United States, 1937, 302 U.S. 211, 214, 58 S.Ct. 164, 166, 82 L.Ed. 204:
See also United States v. Chapman, 3 Cir. 1971, 448 F.2d 1381, 1388 n. 11; United States v. Mack, 1972, 151 U.S. App.D.C. 162, 466 F.2d 333, 340; United States v. Ellenbogen, 2 Cir. 1968, 390 F.2d 537, 542-543; United States v. Grabina, 2 Cir. 1962, 309 F.2d 783, 785; Dickinson v. Rinke, 2 Cir. 1943, 132 F.2d 884, 885; Rogers v. Consolidated Rock Products Co., 9 Cir. 1940, 114 F.2d 108, 111.
Equally universal is the rule that the time at which jurisdiction revests in the trial court is the date of the issuance of the appellate court's mandate. As said by this Court: "* * * a Court of Appeals retains jurisdiction, and none is relinquished to the district court, until a mandate or judgment is issued." Gill v. C.I.R., 1962, 306 F.2d 902, 906.3
Clearly, I submit this appeal should not be dismissed as moot. True, insofar as the parties are concerned the result of the per curiam order of the en banc court is the...
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...far outweigh the putative gains.'Contra, United States v. Caraway, 474 F.2d 25, 28--29 (CA 5, 1973), opinion vacated as moot, 483 F.2d 215 (CA 5, 1973) (involving a plea of nolo contendere, the legal equivalent of a guilty plea).'Our rationale for recognizing this type of express agreement ......
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...(1978). United States v. Tilton, 534 F.2d 1363 (9th Cir. 1976); United States v. Caraway, 474 F.2d 25, Vacated on other grounds, 483 F.2d 215 (5th Cir. 1973).5 The arrests for the currency violation were valid. See note 17 Infra. The defendants do not question the validity of the inventory ......
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U.S. v. Winter, 73--2236
...aware of Sepe and its implications since he had been counsel both at trial and on appeal in Sepe as well as in United States v. Caraway, 5 Cir., 1973, (en banc), 483 F.2d 215 (dismissed as moot) vacating 474 F.2d 25, the two cases in this Circuit in which the issue had then arisen.The Distr......
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Consequences of Mootness on Appeal. The factors the courts consider relevant in determining when the order dismissing an appeal should also vacate the previous judgment.
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