United States v. Conversano

• Decision Date: 15 July 1969
• Docket Number: No. 17372.,17372.
• Citation: 412 F.2d 1143
• Parties: UNITED STATES of America v. Lawrence J. CONVERSANO and William P. Keohan. Lawrence J. Conversano, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

412 F.2d 1143 (1969)

UNITED STATES of America v. Lawrence J. CONVERSANO and William P. Keohan Lawrence J. Conversano, Appellant.

No. 17372.

United States Court of Appeals Third Circuit.

Argued February 4, 1969.

Decided July 15, 1969.

Richard C. Ferroni, Pirillo & Carabello, Philadelphia, Pa. (Anthony D. Pirillo, Jr., Philadelphia, Pa., on the brief), for appellant.

Donald Horowitz, Asst. U. S. Atty., Newark, N. J., for appellee.

Before KALODNER, GANEY and SEITZ, Circuit Judges.

OPINION OF THE COURT

GANEY, Circuit Judge.

Defendant, Lawrence J. Conversano, and William Patrick Keohan were charged in a single two-count indictment with transferring and having in their possession and concealing counterfeited obligations of the United States, with intent to defraud in violation of 18 U.S.C. §§ 472 and 473. Keohan plead guilty to both charges while defendant plead not guilty. At his trial, defendant raised the defense of entrapment, took the stand and called Keohan, a co-defendant, as a witness. On the testimony presented by Secret Service Agent Kenneth E. Balge, the only witness called by the prosecution, the jury found defendant guilty on both counts, and the court, after denying post-trial motions, imposed concurrent sentences.

Although the Government has not raised the question, we must determine whether written notice of appeal was timely filed in this case in accordance with the Federal Rules of Criminal Procedure. The jury brought in its verdict on Tuesday, October 11, 1967. On the same day in open court, defendant's counsel applied for and was immediately granted, in lieu of the 7-day period provided for in Rule 33 of the Federal Rules of Criminal Procedure, a three-week period of time in which to file motions for judgment of acquittal and for a new trial. Interpreting the three-week period to mean 21 days, we conclude that it began on Wednesday, October 12, and ended with Wednesday, November 1, which was not a legal holiday. By letter dated November 2, one day after the three-week period, defendant's counsel requested an additional two weeks within which to file the post-trial motions. He was notified by telephone on November 6 from the trial judge's chambers that his request was granted. On November 15, defendant filed his motion for a new trial. The motion was based on grounds other than newly discovered evidence, one of them being "The Court erred in denying Defendant's Motion for a directed verdict in acquittal."

In open court on March 19, 1968, immediately after he was sentenced, defendant was allowed to post an appearance bond in the amount of $5,000 pending an appeal.¹ The notation of the sentences was entered in the criminal docket two days later on Thursday, March 21. On April 1, by a written order, the district court denied defendant's motion for a new trial. The following day, April 2, the order was entered and defendant filed his notice of appeal in the district court. The notice provided:

"The defendant was found guilty of the above offenses Selling, transfering and delivering of counterfeited obligations of the United States; possession and concealing counterfeited obligations of the United States with intent to defraud. and was sentenced to two four-year terms of imprisonment; said terms to run concurrently.

"I, the above named appellant, hereby appeal to the United States Court of Appeals for the District of New Jersey from the above stated judgment."²

This notice of appeal was filed one day too late.

Rule 37(a) (2) of the Federal Rules of Criminal Procedure, effective at the time defendant filed his notice of appeal, provided in pertinent part:

"(2) Time for Taking Appeal. The notice of appeal by a defendant shall be filed within 10 days after the entry of the judgment or order appealed from. A notice of appeal filed after the announcement of a decision, sentence or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof. If a timely motion in arrest of judgment or 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 the order denying the motion * * *. A judgment or order is entered within the meaning of this paragraph when it is entered in the criminal docket * * *." (Italics supplied.)³

"It is well settled that `the filing of a notice of appeal within the 10-day period prescribed by Rule 37(a) (2) is mandatory and jurisdictional.' United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 285, 4 L.Ed.2d 259 (1960); Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964)." United States v. Temple, 372 F.2d 795, 797 (C.A. 4, 1966), cert. denied 386 U.S. 961, 87 S. Ct. 1024, 18 L.Ed.2d 110. Also see United States v. Scarlata, 214 F.2d 807 (C.A. 3, 1954); 5 Orfield, Crim.Proc. Under Fed.Rules § 37.12.

Using the date of entry of the order denying the motion for a new trial, which was April 2, as the starting point, the filing of the notice of appeal was in time if the motion was timely filed. We think it was not. Rule 33 of the Federal Rules of Criminal Procedure, in pertinent part, provides:

"The court on motion of a defendant may grant a new trial if required in the interest of justice * * *. A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within 7 days after verdict * * * or within such further time as the court may fix during the 7-day period." (Italics supplied.)

Clearly, the trial judge had authority to grant the extension of time to three weeks in which to file the motion for a new trial inasmuch as the decision was made during the 7-day period immediately after verdict. But even if we assume factually that the letter dated November 2 was received by the trial judge and allowed by him as of that date, the second request for an extension of time was made and granted after the original three-week period had expired. We know of no rule which at the time would have given the district court authority to grant an extension of time other than the ground of newly discovered evidence. But defendant has not filed a motion based on that ground in this case.

Using Thursday, March 31, 1968, the date of the entry of judgment in this case as the starting point, Monday, April 1, 1968, was the last day on which notice of appeal could ordinarily have been filed timely here.⁴ According to the date of the official stamp on the notice of appeal, which we must accept as true in this case, the notice was filed on April 2, one day beyond the time allowed by the Rule. Thus were we to rely solely on the notice of appeal, this Court would be without jurisdiction to hear this appeal. However, the condition of the appearance bond, which was executed and filed in the district court on March 19, 1968, recites that the defendant has filed an appeal to this Court and the appeal is now pending. We think the filing of the appearance bond containing the above recital may be deemed the equivalent of the filing of a written notice of appeal in the district court. See O'Neal v. United States, 272 F.2d 412 (C.A. 5, 1959). And although it was filed prior to the entry of the judgment, it is treated as having been "filed after such entry and on the day thereof." in accordance with the mandate of Rule 37(a) (2), supra.

On the merits of this appeal defendant contends that the trial court committed reversible error in (1) sustaining an objection to a question put to the prosecution's sole witness on cross-examination as to whether a person identified as James Seth O'Donnell was a paid informer of the secret service, and (2) charging the jury regarding the defense of entrapment and refusing to read to the jury his six requests for charge. For a proper understanding of the basis for defendant's contentions and theory of entrapment, a review of the testimony is necessary.

After the secret service learned that counterfeit money was available for sale, Balge, an undercover agent, posed as Ray Simpson, an assistant cashier of a bank in Washington, D. C. James Seth O'Donnell brought defendant, Keohan, to the bank and introduced him to Balge as a person who could possibly lead Balge to a source of counterfeit money. At a restaurant Balge told Keohan that he had embezzled $200,000 from a trust account and was anxious to replace it with counterfeit notes before the bank examiners made their audit. Keohan got in touch with one Theodore Kittelt and told him of Balge's predicament and his desire to buy fake money to cover up the embezzlement.

Later, in Baltimore, Maryland, Kittelt introduced defendant to Keohan. The latter informed defendant that O'Donnell had introduced him to a bank official in Washington who had an urgent need to replace an embezzled $200,000 and was willing to buy fake money for that purpose at the rate of $23 for every $100 face value of the fake bills. At first defendant did not want to get involved, but after Keohan and Kittelt assured him there would be no problems and because the bills from the hospital where his wife was a patient were mounting while he was unemployed and unable to pay them as they became due, he agreed to go along.

Keohan then told Balge that the fake notes would be delivered to him at a hotel in Newark, New Jersey, on Friday, May 27, 1966. On that day, Keohan, defendant, and Kittelt rode by automobile from Baltimore to Newark, a distance of approximately 185 riding miles. When they arrived at Newark in the afternoon, defendant and Kittelt were dropped off at a service station and instructed by Keohan to go to the mezzanine floor of a certain movie house in the city and wait for a telephone call, while Keohan went on to meet Balge at his...