United States v. Eliopoulos, 24
| Decision Date | 18 November 1946 |
| Docket Number | Docket 20253.,No. 24,24 |
| Citation | 158 F.2d 206 |
| Parties | UNITED STATES v. ELIOPOULOS et al. |
| Court | U.S. Court of Appeals — Second Circuit |
J. Vincent Keogh, U. S. Atty., of New York City (Vine H. Smith, Asst. U. S. Atty., of New York City, of counsel), for appellant.
David P. Siegel, of New York City (Charles H. Tuttle, of New York City, of counsel), for Elias Eliopoulos, appellee.
Charles Rosenthal, of New York City (Albert S. Gross, of Hackensack, N. J., of counsel), for George Eliopoulos, appellee.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
Before reaching the merits of this appeal the question of our jurisdiction must be determined. The appellees have moved to dismiss on the ground that the appeal was taken too late. The Criminal Appeals Act, 18 U.S.C.A. § 682, provides that the appeal in all such cases "shall be taken within thirty days after the decision or judgment has been rendered." It is the contention of the appellees that the trial court's decision was rendered on October 8, 1943 and an appeal had to be taken within thirty days thereafter. The appellant argues that the time for appeal did not start to run until the order of February 16, 1944 was signed by the judge and hence its petition for appeal, which was allowed on March 14, 1944, was timely. A statement of the facts follows.
In 1943 the defendants were indicted for offenses committed in 1930. The indictment contained two substantive counts and a conspiracy count charging them with violating, and conspiring to violate, provisions of the Internal Revenue Code relating to the importation of narcotics. The defendants were Greeks and until the year 1941 neither of them had ever been within the Eastern District of New York or any other part of the United States or any place subject to its jurisdiction, except that Elias Eliopoulos had visited the United States "as a tourist" for one month in 1919. In addition to pleading not guilty, they filed a special plea in bar based on the statute of limitations, 26 U.S.C.A. Int.Rev.Code, § 3748. This plea was overruled, the case proceeded to trial and on June 11, 1943, the jury returned a verdict convicting Elias Eliopoulos on all three counts and George Eliopoulos on the two substantive counts. The defendants moved in arrest of judgment to set aside the verdict and dismiss the indictment on various grounds, including the bar of the statute of limitations. Decision upon the motion was reserved and the "term kept open for one year." On October 8, 1943, an adjourned date for sentence, the trial judge in open court rendered his decision orally, stating that he granted the motion solely on the ground of the statute. He concluded his remarks as follows:
Thereupon the clerk of the court made the following entry on the docket:
On the same day the clerk made a like endorsement on the back of the original indictment and issued a "Certificate of Disposition," in reliance upon which the defendants' bail bonds were cancelled and the surety company released the collateral held by it. Some four months later the United States Attorney presented to the judge a formal order, which the judge signed under date of February 16, 1944 embodying the substance of his oral decision of October 8, 1943. From the order of February 16th the United States took an appeal which was allowed on March 14, 1944. Thereafter on March 20, 1944 the appellees moved to vacate the order of February 16th, or in the alternative to resettle it so as to correct certain erroneous recitals therein. By an opinion filed on March 25, 1944 Judge Abruzzo denied the motion to vacate but granted the motion to resettle the order of February 16th. His opinion contained the following paragraph:
The opinion was followed by the resettling order of March 31, 1944, which recites that on October 8, 1943, the court "stated orally its decision herein * * * and did dismiss the indictment and discharge the defendants, solely upon the ground that the prosecution of each of said defendants was barred by the statute of limitations applicable to the cause." From the resettling order the United States took an appeal on April 26, 1944. The two appeals were thereafter consolidated by the order of this court without prejudice to the appellees' claim that the court lacks jurisdiction to hear them.
In civil cases the problem as to what constitutes the judgment for purposes of an appeal has been put to rest by the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Rule 58 declares that "The notation of a judgment in the civil docket as provided by Rule 79(a) constitutes the entry of the judgment; and the judgment is not effective before such entry." That was not true at common law. As Judge Hough said in The Washington, 2 Cir., 16 F.2d 206, 208:
."
And to similar effect is the statement by Judge Phillips in Continental Oil Co. v. Mulich, 10 Cir., 70 F.2d 521, 524, that the judgment was duly rendered when it was ordered or pronounced by the court and that entry in the journal is but formal evidence thereof. See also, Freeman, Judgments § 46; Black, Judgments, § 106; 34 C.J. § 175. Hence we should entertain no doubt that Judge Abruzzo's oral pronouncement in open court on October 8, 1943 was the rendition of his "decision or judgment" and started the running of the thirty days within which an appeal must be taken, were it not for the case of United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290.
That was a direct appeal to the Supreme Court from an order quashing an indictment. Judge Sweeney had filed a written opinion on March 5, 1943, 49...
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United States v. Roth, 22752.
...formal orders. A directly contrary practice in the Eastern District was found to require dismissal of an appeal in United States v. Eliopoulos, 2 Cir., 158 F.2d 206, 208. To similar effect is United States v. Rockower, 2 Cir., 171 F.2d 423, certiorari denied Rockower v. United States, 337 U......