United States v. Temple

• Decision Date: 17 November 1966
• Docket Number: 10693.,No. 10653-10656,10653-10656
• Citation: 372 F.2d 795
• Parties: UNITED STATES of America, Appellee, v. Elam Reamuel TEMPLE, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

372 F.2d 795 (1966)

UNITED STATES of America, Appellee, v. Elam Reamuel TEMPLE, Appellant.

Nos. 10653-10656, 10693.

United States Court of Appeals Fourth Circuit.

Argued October 7, 1966.

Decided November 17, 1966.

Certiorari Denied March 13, 1967.

E. L. Culbreth (Elam Reamuel Temple, pro se, on the brief), for appellant.

Alton T. Cummings, Asst. U. S. Atty., for appellee.

Before J. SPENCER BELL, WINTER and CRAVEN, Circuit Judges.

Certiorari Denied March 13, 1967. See 87 S.Ct. 1024.

J. SPENCER BELL, Circuit Judge.

Defendant Temple, an attorney, was tried and convicted in the district court in March 1966 on a charge of criminal contempt of court.¹ On March 31, 1966, judgment was entered suspending imposition of sentence, fining defendant 500 dollars, and placing him on probation for 18 months. Immediately following pronouncement of judgment, defendant's attorney gave oral notice of appeal in open court. The court agreed at that time that the 1,000-dollar bond then in effect would be acceptable as appeal bond.² On May 10, 1966, written notice of appeal was filed as required by Rule 37(a) (1) of the Federal Rules of Criminal Procedure and docketed under No. 10,653. The Government filed a motion in this court to dismiss the appeal on the ground that notice of appeal was untimely, not having been filed within 10 days after entry of judgment in accordance with Rule 37(a) (2).

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). See also Dennis v. United States, 177 F. 2d 195 (4 Cir.1949). In the Robinson case, the Supreme Court held that the district court lacks power to extend the time for filing or to permit late filing of notice of appeal on the basis of excusable neglect since Rule 45(b) expressly states that "the court may not enlarge * * * the period of taking an appeal."³

We recognize that under some circumstances jurisdiction may exist in the court of appeals even though notice of appeal was not actually filed with the clerk within the 10-day period specified by Rule 37(a) (2). In Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L. Ed.2d 760 (1964), the indigent defendant asked after sentencing if he could appeal "as an insolvent." The court replied that "the Government provides for that." Immediately thereafter, defendant had a brief conference with his court-appointed attorney, who advised defendant that he (the attorney) would not handle the appeal. Throughout the remainder of the appeal period defendant was confined in prison hospital facilities and permitted no visitors. Defendant wrote letters dated 8 days after judgment was entered against him to the clerk of the court asking for a new trial and for an appeal, which letters were received by the clerk 14 days after judgment. It was disclosed during oral argument that mail was sent out from the prison only twice weekly and that this could have caused the delay. The Court observed that "although the Government had the opportunity, it introduced no evidence — and admitted on oral argument that it had none — to dispute the record facts that petitioner had done all that could reasonably be expected to get the letter to its destination within the required 10 days." Id. at 144, 84 S. Ct. at 1692. The Court thus held that "since petitioner did all he could under the circumstances, we decline to read the Rules so rigidly as to bar a determination of his appeal on the merits." Ibid. In Calland v. United States, 323 F.2d 405 (7 Cir. 1963), defendant alleged that fraud of his counsel was the reason for no notice of appeal being filed and expressly disclaimed that he was seeking relief under Rule 45(b) on grounds of excusable neglect. The court held that United States v. Robinson, supra, was therefore not applicable and that, if defendant's allegation of fraud was found to be true in a district court hearing, the court could consider the appeal under its "inherent power to investigate whether a judgment was obtained by fraud * *" 323 F.2d at 408. However, neither Fallen nor Calland is applicable to the facts of the present case.

Defendant contends that his oral notice of appeal in open court, which was incorporated into the record of the case, was sufficient to satisfy the requirement of Rule 37(a) (1), so that his notice of appeal was timely given under Rule 37 (a) (2). Oral notice of appeal given in open court has generally been held insufficient to constitute filing of notice under Rule 37(a) (1). Durel v. United States, 299 F.2d 583 (5 Cir. 1962); United States v. Isabella, 251 F.2d 223 (2 Cir. 1958). Defendant argues, however, that oral notice of appeal should be considered sufficient under the cases of Collier v. United States, 384 U.S. 59, 86 S.Ct. 1253, 16 L. Ed.2d 353 (1966), and O'Neal v. United States, 272 F.2d 412 (5 Cir. 1959).

Collier v. United States, supra, is not relevant to the facts of the present case. The Supreme Court in that case held that the defendant's filing of written notice of appeal was timely under the literal wording of Rule 37(a) (2). The Rule (which has since been amended) provided:

"An appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from, but if a motion for a new trial or in arrest of judgment has been made within the 10-day period an appeal from a judgment of conviction may be taken within 10 days after entry of the order denying the motion."

Since the motion for a new trial was filed by the defendant within 10 days and since notice of appeal was filed within 10 days after denial of the motion, the Supreme Court held that the defendant had complied with Rule 37(a) (2), notwithstanding the fact that the defendant's motion for a new trial was untimely under Rule 33, which required that such motion be filed within 5 days after entry of judgment.⁴ The defendant in the present case filed no motion within the 10-day period following the entry of judgment.

O'Neal v. United States, supra, which is cited by the defendant, is illustrative of a line of cases which, giving a liberal construction to Rule 37(a) (1), consider any paper filed by the defendant with the clerk or with the court within the 10-day period to be written notice of appeal if it substantially complies with the requirements for content set forth in the Rule.⁵ In O'Neal the defendant filed an appeal bond with the clerk on the day that judgment was entered against him, and the court found that "the recitals of that bond are entirely adequate to be accepted as a notice of appeal * * *" 272 F.2d at 413. Footnote omitted. Likewise, letters sent to the clerk, Belton v. United States, 104 U.S.App.D.C. 81, 259 F.2d 811 (1958), or to the court, United States v. Cannady, 34 F.R.D. 211 (D.D.C.1964), have been considered sufficient. See Coppedge v. United States, 369 U.S. 438, 442 n. 5, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962), and cases cited therein. No case has been found which supports a finding that an oral notice of appeal is sufficient to satisfy Rule 37(a) (1). In fact, the Fifth Circuit, which decided the O'Neal case, rejected that contention in a case decided after O'Neal Durel v. United States, supra.

We do not decide that an oral notice of appeal transcribed into the record would never be sufficient to invoke jurisdiction in the court of appeals. Rather, we hold that the case before us does not present a situation in which such notice can be considered adequate. The defendant is an attorney and was represented during the trial by retained counsel. He was free under bond during and after the trial. Furthermore, he had, with assistance of the same counsel who gave oral notice of appeal in the present case, perfected a prior appeal to this court in this same cause. If the Rule is to be applied at all, it should be applied in this case. We therefore dismiss the appeal because notice was not timely filed in compliance with Rule 37(a).

The defendant filed four other notices of appeal in this matter, which we shall consider seriatim. A judgment revoking defendant's probation on the ground that he refused to submit to supervision was entered by the district court on May 5, 1966, and defendant filed timely notice of appeal, docketed under No. 10,654, later supplemented by a second notice docketed under No. 10,656. In that judgment the district judge imposed a sentence of one year, 6 months active sentence with the remaining 6 months suspended, and 18 months probation to commence at the expiration of the active sentence upon condition that the defendant pay a 500-dollar fine. The record shows, and indeed the defendant admits, that the defendant informed the probation officer that he would not submit to supervision as required by probation. Such action clearly constitutes grounds for revoking probation, and the defendant has not alleged or shown any abuse of the trial judge's discretion in doing so. We therefore grant the Government's motion to dismiss defendant's appeal from the trial judge's revocation of probation as frivolous.

Second, the Government moves that No. 10,654 be remanded for proper sentencing, the Government conceding that the sentence imposed upon revocation of probation is illegal. The defendant was originally prosecuted under 18 U.S.C. § 401 (1964), which provides for punishment by "fine or imprisonment" for the offense of criminal contempt of court. Emphasis added. Section 3651 of the 18 U.S.C. provides:

"Probation may be granted whether the offense is punishable by fine or imprisonment or both. If an offense is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to imprisonment."

It follows, therefore, that the court may not impose a fine and place the defendant on probation if...