United States v. Roth, 22752.

• Decision Date: 19 October 1953
• Docket Number: No. 22752.,22752.
• Citation: 208 F.2d 467
• Parties: UNITED STATES v. ROTH and five other actions.
• Court: U.S. Court of Appeals — Second Circuit

208 F.2d 467 (1953)

UNITED STATES v. ROTH and five other actions.

No. 22752.

United States Court of Appeals Second Circuit.

Motion Argued October 7, 1953.

Decided October 19, 1953.

Rehearing Denied December 11, 1953.

COPYRIGHT MATERIAL OMITTED

James B. Kilsheimer, III, Asst. U. S. Atty., New York City (J. Edward Lumbard, U. S. Atty., and Gerome J. Leone and Whitney North Seymour, Asst. U. S. Attys., New York City, on the brief), for appellant.

Jacob J. Rosenblum, New York City (Garey & Garey, Edward T. Perry, and Wm. F. Corson, New York City, on the brief), for appellee Roth.

Lloyd Paul Stryker, New York City (Harold W. Wolfram, New York City, on the brief), for appellees Giglio, Lawn, and Livorsi.

Before CHASE, Chief Judge, and CLARK and FRANK, Circuit Judges.

PER CURIAM.

Unlike the civil rules, under which the lack of timely appeal here would be quite clear, see Fed.Rules Civ. Proc. rule 58; United States v. Wissahickon Tool Works, 2 Cir., 200 F.2d 936, 939, and cases cited, the federal rules of criminal procedure do not cover the point in issue; and in United States v. Hark, 320 U.S. 531, 534, 64 S.Ct. 359, 361, 88 L.Ed. 290, decided by a divided bench, where it was "Unaided by statute or rule of court," the Court relied on what it took to be a local practice for the evidencing of decision by later 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.S. 931, 69 S.Ct. 1484, 93 L.Ed. 1738, where we upheld the defendant's immediate appeal from a denial of a motion to vacate his conviction, such denial being merely endorsed by the judge on the motion papers and then noted in the docket.

The two cases last cited therefore point to the invalidity of the appeals here. But we think the necessary result is made quite clear by a local rule, being a uniform rule in effect in both the Southern and Eastern Districts, providing: "A memorandum of the determination of a motion, signed by the judge, shall constitute the order. * * *" Rule 10, General Rules of the United States District Courts for the Southern and Eastern Districts.¹ This general statement of the intent of the court — see United States v. Rockower, supra, 2 Cir., 171 F.2d at page 425 — should be taken as decisive, since in effect it incorporates the clear provisions of the civil rules into the criminal procedure and serves to dissipate uncertainty as well as counsel control of the time of submission and hence of the signing of orders. For matters thus important should not turn upon the time when Government counsel choose to submit orders to the judge who has completed adjudication.

To offset the effect of this rule, appellant submits an affidavit from the Chief Deputy Clerk in the office of the District Court Clerk stating a practice to enter orders when a judge grants a motion as here and "The Government's submission for settlement of an order on this decision was in accord with the practice usually and customarily followed in this district, notwithstanding Local General Rule 10(a)." Whose is the practice is not made clear; other affidavits before us² leave it in some doubt whether it is that of the clerk, or of the lawyers as in the civil cases as previously criticized by us, e. g., Leonard v. Prince Line, 2 Cir., 157 F.2d 987, 989. Certainly we should expect something more precise than this before holding that the district judges had by positive action nullified their own sensible rules formulated with the greatest of care by co-operating committees of able lawyers from the two districts and only recently adopted.³ We conclude that the appeals were not timely.

Motions granted; appeals dismissed.

On Petition for Rehearing

PER CURIAM.

In seeking a rehearing and recall of our order of dismissal of these appeals petitioner-appellant attempts to show by an analysis of all the cases on our current docket that we have gone against the current practice of the judges in the Southern District of New York in making effective their decisions on motions. It finds 39 appeals from such decisions in the Southern and Eastern Districts of New York and makes its deductions from those cases. But we think its own figures show rather the contrary, namely, a quite high degree of compliance with the terms of the rules which we cited in our original opinion, particularly when the differing state practice and the distaste, if not opposition, of some counsel for and to the federal practice is had in mind. Of the cases thus collected, the greater number were those wherein the deciding judge called for the submission of a proposed order, or directed settlement of an order, as is, of course, his undoubted right and power. See F.R. 58. Indeed, district judges have it in their control to remove all doubt by making explicit and beyond misunderstanding their directions either for immediate judgment or for later settlement of a formal decree. It is our hope that they will follow yet more generally the practice of precision. Other appeals were those taken from memoranda of decision, in direct accord with our ruling, or were from formal orders which constituted the sole orders in those cases, together with an additional group which were promptly taken and timely on any basis of computation. The residue, upon which alone petitioner-appellant is forced to rely as demonstrating our disruption of lower court practice through rendering of appeals untimely, consists of 6 appeals, all in civil cases and all from the Southern District of New York.

These civil cases are of course not immediately pertinent and the contention is more an attack upon F.R. 58 and our ruling in United States v. Wissahickon Tool Works, 2 Cir., 200 F.2d 936, and cases there cited, than upon our present decision. Since some of these cases may present questions for our later decision, we do not attempt any definitive analysis at this time; but a general survey indicates that the number of actual instances of untimely delay must be reduced, perhaps to the zero point.¹ In any event the number is too insignificant to be disturbing or to offset the large measure of compliance shown by the...