Walker v. United States

• Citation: 113 F.2d 314,129 ALR 725
• Decision Date: 29 June 1940
• Docket Number: No. 9134.,9134.
• Parties: WALKER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

129 ALR 725, 113 F.2d 314 (1940)

WALKER et al. v. UNITED STATES.

No. 9134.

Circuit Court of Appeals, Ninth Circuit.

June 29, 1940.

Clyde H. Walker, in pro. per. for appellants.

J. Charles Dennis, U. S. Atty., and Oliver Malm, Asst. U. S. Atty., both of Tacoma, Wash., and Frank A. Pellegrini, Asst. U. S. Atty., of Seattle, Wash., for appellee.

Before GARRECHT, HANEY, and HEALY, Circuit Judges.

GARRECHT, Circuit Judge.

We have before us various motions, affidavits, and petitions whereby appellants demand that this court:

(1) Grant a new trial; they assign as the basis therefor, that the judge who signed the bill of exceptions was not the same person who denied their motion for new trial in the District Court.

(2) Return the bill of exceptions to the court below for "correction" relative to the proceedings which took place in court October 18, 1938, on the question of prejudice of the trial judge.

(3) Return the bill of exceptions to the court below for the addition of certain testimony taken at the first trial with reference to telegrams and radiograms attempted to be introduced at the first trial, which appellants claim were excluded at said first trial because of illegality in the procurement.

(4) Order all exhibits requested by appellants copied into the bill of exceptions.

(5) Order the bill of exceptions amended to include notes of the courtroom clerk taken October 28, 1938, on the occasion of a reprimand of Walker by the trial judge for talking to a Government witness outside of the courtroom.

(6) Grant permission to the appellants to file a petition for writ of certiorari to be directed to the District Court, ordering it to send to this court the testimony of witnesses Griel, Laws, and Russell, and, as well, the appellants' proposed bill of exceptions and the appellants' "Objections" to the proposed amendments to the bill requested by the appellee. Another memorandum also requests that these amendments to the bill proposed by the Government be sent up along with the proposed bill and the objections.

(7) Grant an extension of time for filing of brief of appellants.

Motion for New Trial

The appellants were tried before the Honorable Edward E. Cushman in the court below, and were convicted. Motion for new trial was made in the District Court, and denied by Judge Cushman. It appears from the certificate to the bill of exceptions (Kreiner v. United States, 2 Cir., 11 F.2d 722) and from the memorandums of counsel, that Judge Cushman became ill and, as a result of such illness, was unable to perform his duties as a District Judge of the United States. See and compare Norwood v. United States, 4 Cir., 18 F.2d 577. The situation was called to the attention of the Honorable Lloyd L. Black, also a Judge of the District Court of the United States for the Western District of Washington, for settlement of the bill of exceptions in perfecting the appeal taken by Walker and Sheehy.

In support of their motion for new trial made in this court, the appellants argue that under Section 776 of Title 28, U.S.C.A., Judge Cushman, who passed on the motion for new trial, was, because of that fact, the only person who could settle the bill of exceptions; in other words, Judge Black, not having passed upon the motion for new trial, could not settle the bill. The section in question, 28 U.S.C.A. § 776, reads, in part, as follows: "A bill of exceptions allowed in any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried * * *. And in case the judge before whom the cause has heretofore been or may hereafter be tried is, by reason of death, sickness, or other disability, unable to hear and pass upon the motion for a new trial and allow and sign said bill of exceptions, then the judge who succeeds such trial judge, or any other judge of the court in which the cause was tried, holding such court thereafter, if the evidence in such cause has been or is taken in stenographic notes, or if the said judge is satisfied by any other means that he can pass upon such motion and allow a true bill of exceptions, shall pass upon said motion and allow and sign such bill of exceptions; and his ruling upon such motion and allowance and signing of such bill of exceptions shall be as valid as if such ruling and allowance and signing of such bill of exceptions had been made by the judge before whom such cause was tried; * * *."

No authorities are cited to support appellants' contention. Nor have we found any case to uphold the appellants' claim. Appellee calls attention, however, to the case of McIntyre v. Modern Woodmen of America, 6 Cir., 200 F. 1, 5, where, in response to a similar contention in quite the same circumstances, the court said: "* * * We see no merit in the suggestion that Judge Angell had no power to act on the bill of exceptions without first hearing the motion for a new trial, which he could not do, because such motion had already been heard and denied by Judge Swan."

The Bill of Exceptions

Rule IX of the "Rules of Practice and Procedure, * * * in Criminal Cases, 28 U.S.C.A. following section 723a brought in the District Courts of the United States * * *" promulgated by the Supreme Court of the United States, provides that:

"In cases other than those described in Rule VIII which refers to the record on appeal without bill of exceptions, the appellant, within thirty (30) days after the taking of the appeal, or within such further time as within said period of thirty days may be fixed by the trial judge, shall procure to be settled, and shall file with the clerk of the court in which the case was tried, a bill of exceptions setting forth the proceedings upon which the appellant wishes to rely in addition to those shown by the clerk's record as described in Rule VIII. * * *

"Bills of exceptions shall conform to the provisions of Rule 8 of the Rules of the Supreme Court of the United States.

"Upon the filing of the bill of exceptions and assignment of errors, the clerk of the trial court shall forthwith transmit them, together with such matters of record as are pertinent to the appeal, with his certificate, to the clerk of the appellate court, and the papers so forwarded shall constitute the record on appeal.

"The appellate court may at any time, on five (5) days' notice, entertain a motion by either party for the correction, amplification, or reduction of the record filed with the appellate court and may issue such directions to the trial court, or trial judge, in relation thereto, as may be appropriate."

Rule IV of these rules contains the provision: "From the time of the filing with its clerk of the duplicate notice of appeal, the appellate court shall, subject to these rules, have supervision and control of the proceedings on the appeal, including the proceedings relating to the preparation of the record on appeal."

Rule IX has been interpreted by the Supreme Court of the Unied States, and we are bound to give the said section effect in the manner and to the extent directed. Ray v. United States, 301 U.S. 158, 57 S.Ct. 700, 704, 81 L.Ed. 976, holds that although the authority of the district judge to extend the time for preparation and filing a bill of exceptions is limited, a Circuit Court of Appeals is given full authority to set aside or modify his order whenever it appears that there has been an abuse of discretion or that the interests of justice require it; that the Circuit Courts of Appeals are given supervisory control over the preparation of records in criminal appeals; that the authority of the Circuit Court of Appeals extends to the "correction, amplification, or reduction" of the record in an appeal; that it is authorized to require a proper bill of exceptions and to give any directions to the trial judge which may be necessary to attain that end; that the trial judge could act under the direction of the appellate court and the latter court could give whatever direction the case required in order to give effect to the rule as to the proper preparation of the bill of exceptions, even though the term had expired. 301 U.S. 161-166, 57 S.Ct. 702, 704, 81 L.Ed. 976. "It is, of course, assumed that the Circuit Court of Appeals will not lightly interfere with the action of the trial judge." 301 U.S. at page 164, 57 S.Ct. at page 703, 81 L.Ed. 976. "The supervision and control of the Circuit Court of Appeals under the Criminal Appeals Rules calls for the exercise of a sound judicial discretion, * * *." 301 U.S. at page 166, 57 S.Ct. at page 704, 81 L.Ed. 976.

It would appear, therefore, that the long-standing principles that an appellate court will not or may not control the making of a bill of exceptions,¹ and that the expiration of the term deprives the trial court of power to allow a bill of exceptions then first presented, or to alter or amend a bill already allowed and filed, unless the court's control over the case was reserved by a standing rule or special order,² are no longer in effect and the cases so holding are of interest only historically. We conclude, under the authority of Rule IX, supra, and Ray v. United States, 301 U.S. 158, 57 S.Ct. 700, 81 L.Ed. 976, that this court has the power, in a proper case, to direct the trial judge to alter or amend a bill of exceptions to conform to the true facts, notwithstanding the term may have expired.

We, then, are led to query, "Is this a proper case for the exercise of such power?" The appellants are the moving parties; in bringing their appeal the burden is upon them to present to this court a true record, fair in all respects. To secure a review of questions, other than those appearing in the primary record, a bill of exceptions duly authenticated, is necessary. More than a hundred years ago Mr. Chief Justice Marshall said, "The person who offers a bill of exceptions ought to present such a one as the judge can sign." Ex parte Bradstreet, 4 Pet. 102, 29 U.S. 102, 106, 7 L.Ed. 796....