United States v. Healy

Decision Date17 February 1964
Docket NumberNo. 64,64
PartiesUNITED STATES, Appellant, v. David Thomas HEALY et al
CourtU.S. Supreme Court

Stephen J. Pollak, Washington, D.C., for appellant.

Robert L. Shevin, Miami, Fla., for appellees.

Mr. Justice HARLAN delivered the opinion of the Court.

A federal grand jury alleged in an indictment, returned in the United States District Court for the Southern District of Florida, that on April 13, 1962, the appellees that kidnaped at gunpoint the pilot of a private Cessna 172 airplane and compelled him to transport them from Florida to Cuba. Count 1 of the indictment charged appellees with having violated 18 U.S.C. § 1201,1 the Federal Kidnaping Act. Under Court 2, appellees were charged with the commission of 'aircraft piracy' in contravention of a 1961 amendment to § 902 of the Federal Aviation Act of 1958, 75 Stat. 466, 49 U.S.C. (Supp. IV) § 1472(i).2

The District Court dismissed the indictment on September 17, 1962 before trial. It held that a kidnaping is not 'for ransom or reward or otherwise,' as required by § 1201(a), unless committed for the pecuniary benefit of the defendant and that a private airplane is not 'an aircraft in flight in air commerce' within the meaning of the aircraft piracy provision, which it read as limited to commercial airliners. The Government's petition for rehearing, filed October 17, was denied on November 8. On December 5, the Government filed a notice of appeal to this Court under 18 U.S.C. § 3731, permitting direct appeal when the dismissal of an indictment is based on construction of the statute upon which the indictment is founded. We noted probable jurisdiction, 372 U.S. 963, 83 S.Ct. 1089, 10 L.Ed.2d 127. We conclude that the judgment of dismissal must be reversed.


Appellees contend that this Court is without jurisdiction and is thereby precluded from considering the case on its merits. They argue that, absent authorization by statute or rule, the filing of a petition for rehearing by the Government in a criminal case cannot extent the time for appeal. Rule 11(2) of this Court provides:

'An appeal permitted by law from a district court to this court in a criminal case shall be in time when the notice of appeal prescribed by Rule 10 is filed with the clerk of the district court within thirty days after entry of the judgment or order appealed from.'

It is undisputed that the notice of appeal was filed by the United States within 30 days from the denial of the petition for rehearing, although not within 30 days of the original entry of judgment. Since the petition for rehearing was filed within 30 days of the judgment, we are not faced with an attempt to rejuvenate an extinguished right to appeal. Cf. Allegrucci v. United States, 372 U.S. 954, 83 S.Ct. 950, 9 L.Ed.2d 978. The question, therefore, is simply whether in a criminal case a timely petition for rehearing by the Government filed within the permissible time for appeal renders the judgment not final for purposes of appeal until the court disposes of the petition—in other words whether in such circumstances the 30-day period prescribed by Rule 11(2) begins to run from the date of entry of judgment or the denial of the petition for rehearing.

The latter is the well-established rule in civil cases, whether brought here by appeal or certiorari, e.g., United States v. Ellicott, 223 U.S. 524, 539, 32 S.Ct. 334, 337, 56 L.Ed. 535; Morse v. United States, 270 U.S. 151, 153—154, 46 S.Ct. 241, 242, 70 L.Ed. 518; Bowman v. Loperena, 311 U.S. 262, 264—266, 61 S.Ct. 201, 85 L.Ed. 177. That a rehearing petition, at least when filed within the original period for review, may also extend the time for filing a petition for certiorari by a criminal defendant is the unarticulated premise on which the Court has consistently proceeded. See, e.g., Panico v. United States, 375 U.S. 29, 84 S.Ct. 19, 11 L.Ed.2d 1 (order extending time for filing entered 19 days after denial of petition for rehearing en banc, 45 days after original judgment of Court of Appeals); Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (petition for certiorari filed 30 days after denial of rehearing, 45 days after original judgment of Court of Appeals); Genovese v. United States, decided with Evola v. United States, 375 U.S. 32, 84 S.Ct. 24, 11 L.Ed.2d 106 (order extending time for filing entered 16 days after denial of rehearing and rehearing en banc, 49 days after entry of original judgment). In Craig v. United States, 298 U.S. 637, 56 S.Ct. 670, 80 L.Ed. 1371, this Court dismissed an application for a writ of certiorari as premature, 'without prejudice to a renewal of the application within thirty days after action by the Circuit Court of Appeals on the petition for rehearing.' This summary disposition plainly reflects an advertent decision that criminal judgments are nonfinal for purposes of appeal so long as timely rehearing petitions are pending.

We have recently recognized the appropriateness of petitions for rehearing by the United States in criminal cases, Forman v. United States, 361 U.S. 416, 425—426, 80 S.Ct. 481, 486, 4 L.Ed.2d 412. The practice of the Court has been to treat such petitions as having the same effect on the permissible time for seeking review as do similar petitions in civil cases and in criminal cases in which the Government has won below. United States v. Williams, 341 U.S. 58, 71 S.Ct. 595, 95 L.Ed. 747 (appeal from dismissal of indictment by District Court; notice of appeal filed 29 days after denial of motion for rehearing, 44 days after entry of original order); United States v. Smith, 342 U.S. 225, 72 S.Ct. 260, 96 L.Ed. 252 (appeal from dismissal of indictment by District Court; notice of appeal filed 28 days after denial of petition for rehearing, 109 days after entry of original order); United States v. Calderon, 348 U.S. 160, 75 S.Ct. 186, 99 L.Ed. 202 (petition for certiorari from Court of Appeals; order extending time for filing entered 28 days after denial of rehearing, 88 days after entry of original judgment).

Appellees place great reliance on the absence of any statute or rule governing the effect of rehearing petitions of the Government, but both the civil and criminal procedural doctrines lack such a foundation. The wording of Rule 11(2) of this Court, as unilluminating on this issue as it may be standing alone, is virtually identical to that of Rule 22(2), which encompasses petitions for certiorari both by criminal defendants and the Government. The inference is compelling that no difference in treatment is intended between appealable judgments and those reviewable by certiorari, or between criminal defendants and the United States. We are constrained to read these rules as consistent with a traditional and virtually unquestioned practice.

Rule 37(a)(2) of the Federal Rules of Criminal Procedure3 does not alter this conclusion, since it sheds no light on the relevance of a petition for rehearing. Nor can the principle of strict construction of statutes permitting governmental appeals in criminal cases, Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442, be utilized to undermine a well-established procedural rule for criminal, as well as civil, litigation. No persuasive considerations of policy dictate of deviant standard for government appeals.

Of course speedy disposition of criminal cases is desirable, but to deprive the Government of the opportunity to petition a lower court for the correction of errors might, in some circumstances, actually prolong the process of litigation—since plenary consideration of a question of law here ordinarily consumes more time than disposition of a petition for rehearing and could, in some cases, impose an added and unnecessary burden of adjudication upon this Court.4 It would be senseless for this Court to p §§ on an issue while a motion for rehearing is pending below, and no significant saving of time would be achieved by altering the ordinary rule to the extent of compelling a notice of appeal to be filed while the petition for rehearing is under consideration.

We conclude that this appeal was timely filed and that the Court has jurisdiction to determine the case on its merits.


By interpreting 18 U.S.C. § 1201 to require a motive of pecuniary profit, the District Court disregarded the plain holding of Gooch v. United States, 297 U.S. 124, 56 S.Ct. 395, 80 L.Ed. 522, in which the defendant, who had seized and carried away a state peace officer attempting to effectuate his arrest, was held subject to prosecution under the statute. Prior to a 1934 amendment, the Federal Kidnaping Act had been applicable only if the person transported was held for ransom or reward. The wording was then changed to encompass persons held 'for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof,' 48 Stat. 781. (Emphasis added.) The Court in Gooch, noting the ambiguity of the word 'reward,' found convincing evidence in the amendment's legislative history that the addition of 'otherwise' was intended to make clear that a nonpecuniary motive did not preclude prosecution under the statute. The Senate Judiciary Committee, which quoted from a memorandum of the Justice Department and the House Judiciary Committee both had reported that the bill was designed to extend federal jurisdiction under the Act to cases of persons kidnaped and held 'not only for reward, but for any other reason.'5 The Court's conclusion that the amended statute covered the facts before it was clearly in accord with the congressional purpose.

The Courts of Appeals have consistently followed Gooch, e.g., United States v. Parker, 3 Cir., 103 F.2d 857; Brooks v. United States, 4 Cir., 199 F.2d 336; Hayes v. United States, 8 Cir., 296 F.2d 657, and appellees do not challenge the authority of that case. While recognizing that the statute is not limited to kidnapings for pecuniary gain, they assert that...

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