Appeal
Timeliness
7203:
Willful Failure to File Return, Supply Information, or Pay Tax:
Appeal, Timeliness
[80-2
USTC ¶9761]
United States of America
, Petitioner-Appellant, v. Roger S. Baskes, Defendant-Appellee
(CA-7),
U. S. Court of Appeals, 7th Circuit, No. 79-1774, 640 F2d 48, 10/23/80,
Reversing District Court, 79-2 USTC ¶9437
[18 U. S. C. §371]
Crimes: Conspiracy to defraud the U. S.; Evidence: Suppression:
Illegal search.--A district court order suppressing evidence in the
defendant's trial for conspiracy to defraud the United States and for
violation of the Internal Revenue laws was reversed and the case
remanded. The present case was indistinguishable from Payner,
80-2 USTC ¶9511, in which the Supreme Court reversed a similar
suppression order arising out of the same search and seizure that
yielded the evidence sought to be used against the defendant and the
Supreme Court's opinion made it clear that the use of evidence acquired
as a result of unlawful activity against a defendant whose rights were
not violated was not a denial of due process.
Thomas
P. Sullivan, United States Attorney, Chicago, Ill. 60604, M. Carr
Ferguson, Assistant Attorney General, Department of Justice, Washington,
D. C. 20530, for petitioner-appellant. Theodore A. Sinars,
135 S. LaSalle St.
,
Chicago
,
Ill.
60603
, Harvey M. Silets, Silets & Martin, Ltd.,
10 S. LaSalle St.
,
Chicago
,
Ill.
60603
, for defendant-appellee.
Before
FAIRCHILD, Chief Judge, CUMMINGS and BAUER, Circuit Judges.
PER
CURIAM:
This
court entered an order on August 6, 1980, directing the defendant to
show cause why the order appealed from should not be summarily reversed
and remanded in light of United States v. Payner [80-2 USTC
¶9511], 48 U. S. L. W. 4829 (June 13, 1980). The district court had
exercised its supervisory power to suppress evidence tainted by the
Government's violation of the Fourth Amendment rights of third parties
and set aside the jury's verdict finding the defendant guilty of
conspiracy to defraud the
United States
and of violation of the Internal Revenue laws. During the pendency of
this appeal, the Supreme Court, in Payner, reversed a similar
suppression order arising out of the identical search and seizure at
issue in the present case. The district court had refused to ground its
order on the theory that the use against defendant of evidence acquired
as a result of the unlawful activity was a denial of due process.
Defendant argued in its brief on appeal that the refusal was error, and
that the due process theory was an alternative ground for affirmance. In
response to our order to show cause, defendant maintains that his due
process survives Payner. We disagree.
Although
the due process issue was not raised in the petition for certiorari
in Payner (presumably because the court of appeals did not decide
that question), it had been considered by the district court, which had
alternatively grounded its suppression order on that rationale, and was
apparently briefed and argued before both the court of appeals and the
Supreme Court. The unambiguous language of Justice Powell's majority
opinion (48 U. S. L. W. at 4832, n. 9) and the majority's implicit
rejection of the dissenters preference (48 U. S. L. W. at 4835, n. 15
(Marshall, J., dissenting)) that the case be remanded to the
court of appeals for consideration of the due process issue leave no
doubt that a majority of the justices considered the question properly
before the Court and decided it adversely to Payner. That being so, the
position of the Supreme Court is clear: "even if . . . the unlawful
briefcase search was so outrageous as to offend fundamental `canons of
decency and fairness,'" . . ., the fact remains that '[t]he
limitations of the Due Process Clause . . . come into play only when the
Government activity in question violates some protected right of the defendant'"
(48 U. S. L. W. at 4832, n. 9) (citations omitted; emphasis in
original). We deem oral argument unnecessary. Because the defendant
cannot show that his rights were violated by the Government activity,
indeed, because the present case is indistinguishable from Payner,
the order appealed from is reversed and the case remanded to the
district court for further proceedings.
REVERSED
AND REMANDED.
[80-2
USTC ¶9511]
United States
, Petitioner v. Jack Payner
Supreme
Court of the United States, No. 78-1729, 447 US 727, 6/23/80, Reversing
CA-6, 79-1 USTC ¶9149
On Writ of Certiorari to the United States Court of Appeals for the
Sixth Circuit.
[18 U. S. C. §1001]
Crimes: Defrauding the government: Filing false tax returns:
Evidence: Suppression: Illegal search.--The Supreme Court reversed
the acquittal of the taxpayer on charges of defrauding the United States
government by filing a tax return falsely denying that he had a foreign
bank account. It held that the district court improperly exercised its
supervisory powers in suppressing evidence obtained by the Internal
Revenue Service from the briefcase of an officer of the foreign bank in
which the taxpayer had an account. The Court noted that the taxpayer had
no standing under the Fourth Amendment to suppress the evidence because
it was seized from a third party and because the taxpayer had no
reasonable expectation of privacy with regard to records of the foreign
account. It then held that to permit the district court to exclude the
evidence under its supervisory powers would be to allow the balance of
interests embodied in its Fourth Amendment decisions to be upset at the
district court's standardless discretion. Therefore the Fourth Amendment
standards were held to control the supervisory power and the evidence
was properly admissible.
Syllabus
At
respondent's nonjury trial for falsifying a federal income tax return by
denying that he maintained a foreign bank account, respondent moved to
suppress a loan guarantee agreement in which he pledged the funds in the
bank account as security. The District Court found respondent guilty on
the basis of all the evidence, but then (1) found that the Government
had discovered the guarantee agreement as the result of a flagrantly
illegal search of a bank officer's briefcase, (2) suppressed all the
Government's evidence except for respondent's tax return and related
testimony, and (3) set aside the conviction for failure to demonstrate
knowing falsification. The court held, inter alia, that, although
the illegal search did not violate respondent's Fourth Amendment rights,
the inherent supervisory power of the federal courts required it to
exclude evidence tainted by the illegal search. The Court of Appeals
affirmed.
Held:
1.
Respondent lacks standing under the Fourth Amendment to suppress the
documents illegally seized from the bank officer. A defendant's Fourth
Amendment rights are violated only when the challenged conduct invaded his
legitimate expectation of privacy rather than that of a third party, and
respondent possessed no privacy interest in the documents seized in this
case. Cf. Rakas v.
Illinois
, 439
U. S.
128; United States v. Miller [76-1 USTC ¶9380], 425
U. S.
435. Pp. 4-6.
2.
The supervisory power of the federal courts does not authorize a court
to suppress otherwise admissible evidence on the ground that it was
seized unlawfully from a third party not before the court. Under the
Fourth Amendment, the interest in deterring illegal searches does not
justify the exclusion of tainted evidence at the instance of a party who
was not the victim of the challenged practices. And the values assigned
to the competing interests of deterring illegal searches and of
furnishing the trier of fact with all relevant evidence do not change
because a court has elected to analyze the question under the
supervisory power instead of the Fourth Amendment. Such power does not
extend so far as to confer on the judiciary discretionary power to
disregard the considered limitations of the law it is charged with
enforcing. Pp. 6-9.
590
F. 2d 206, reversed.
POWELL,
J., delivered the opinion of the Court, in which BURGER, C. J., and
STEWART, WHITE, REHNQUIST, and STEVENS, JJ., joined. BURGER, C. J.,
filed a concurring opinion. MARSHALL, J., filed a dissenting opinion, in
which BRENNAN and BLACKMUN, JJ., joined.
MR.
JUSTICE POWELL delivered the opinion of the Court.
The
question is whether the District Court properly suppressed the fruits of
an unlawful search that did not invade the respondent's Fourth Amendment
rights.
I.
Respondent Jack Payner was indicted in September 1976 on a charge of
falsifying his 1972 federal income tax return in violation of 18 U. S.
C. §1001. 1
The indictment alleged that respondent denied maintaining a foreign bank
account at a time when he knew that he had such an account at the Castle
Bank and Trust Company of
Nassau
,
Bahama Islands
. The Government's case rested heavily on a loan guarantee agreement
dated April 28, 1972, in which respondent pledged the funds in his
Castle Bank account as security for a $100,000 loan.
Respondent
waived his right to jury trial and moved to suppress the guarantee
agreement. With the consent of the parties, the United States District
Court for the Northern District of Ohio took evidence on the motion at a
hearing consolidated with the trial on the merits. The court found
respondent guilty as charged on the basis of all the evidence. The court
also found, however, that the Government discovered the guarantee
agreement by exploiting a flagrantly illegal search that occurred on
January 15, 1973. The court therefore suppressed "all evidence
introduced in the case by the Government with the exception of Jack
Payner's 1972 tax return . . . and the related testimony." United
States v. Payner [77-1 USTC ¶9389], 434 F. Supp. 113, 136 (1977).
As the tax return alone was insufficient to demonstrate knowing
falsification, the District Court set aside respondent's conviction. 2
The
events leading up to the 1973 search are not in dispute. In 1965, the
Internal Revenue Service launched an investigation into the financial
activities of American citizens in the
Bahamas
. The project, known as "Operation Trade Winds," was
headquartered in
Jacksonville
,
Fla.
Suspicion focused on the Castle Bank in 1972, when investigators learned
that a suspected narcotics trafficker had an account there. Special
Agent Richard Jaffe of the
Jacksonville
office asked Norman Casper, a private investigator and occasional
informant, to learn what he could about the Castle Bank and its
depositors. To that end,
Casper
cultivated his friendship with Castle Bank vice-president Michael
Wolstencroft.
Casper
introduced Wolstencroft to Sybol Kennedy, a private investigator and
former employee. When
Casper
discovered that the banker intended to spend a few days in
Miami
in January of 1973, he devised a scheme to gain access to the bank
records he knew Wolstencroft would be carrying in his briefcase. Agent
Jaffe approved the basic outline of the plan.
Wolstencroft
arrived in
Miami
on January 15 and went directly to Kennedy's apartment. At about 7:30 p.
m., the two left for dinner at a Key Biscayne restaurant. Shortly
thereafter,
Casper
entered the apartment using a key supplied by Kennedy. He removed the
briefcase and delivered it to Jaffe. While the agent supervised the
copying of approximately 400 documents taken from the briefcase, a
"lookout" observed Kennedy and Wolstencroft at dinner. The
observer notified
Casper
when the pair left the restaurant, and the briefcase was replaced. The
documents photographed that evening included papers evidencing a close
working relationship between the Castle Bank and the Bank of Perrine,
Fla. Subpoenas issued to the Bank of Perrine ultimately uncovered the
loan guarantee agreement at issue in this case.
The
District Court found that the
United States
, acting through Jaffe, "knowingly and willfully participated in
the unlawful seizure of Michael Wolstencroft's briefcase. . . ."
434 F. Supp., at 120. According to that court, "the Government
affirmatively counsels its agents that the Fourth Amendment standing
limitation permits them to purposefully conduct an unconstitutional
search and seizure of one individual in order to obtain evidence against
third parties. . . ."
Id.
, at 132-133. The District Court also found that the documents
seized from Wolstencroft provided the leads that ultimately led to the
discovery of the critical loan guarantee agreement.
Id.
, at 123. 3
Although the search did not impinge upon the respondent's Fourth
Amendment rights, the District Court believed that the Due Process
Clause of the Fifth Amendment and the inherent supervisory power of the
federal courts required it to exclude evidence tainted by the
Government's "knowing and purposeful bad faith hostility to
any person's fundamental constitutional rights."
Id.
, at 129; see id., at 133, 134-135.
The
Court of Appeals for the Sixth Circuit affirmed in a brief order
endorsing the District Court's use of its supervisory power. United
States v. Payner, 590 F. 2d 206 (1979) (per curiam). The
Court of Appeals did not decide the due process question. We granted
certiorari, --
U. S.
-- (1979), and we now reverse.
II.
This Court discussed the doctrine of "standing to invoke the
[Fourth Amendment] exclusionary rule" in some detail last Term. Rakas
v.
Illinois
, 439
U. S.
128, 138 (1978). We reaffirmed the established rule that a court may not
exclude evidence under the Fourth Amendment unless it finds that an
unlawful search or seizure violated the defendant's own constitutional
rights.
Id.
, at 133-140. See, e.g., Brown v. United States, 411 U. S.
223, 229-230 (1973); Alderman v. United States, 394 U. S. 165,
171-172 (1969); Simmons v. United States, 390 U. S. 377, 389
(1968). And the defendant's Fourth Amendment rights are violated only
when the challenged conduct invaded his legitimate expectation of
privacy rather than that of a third party. Rakas v. Illinois, supra,
at 143; id., at 149-152 (POWELL, J., concurring); Combs v.
United States, 408
U. S.
224, 227 (1972); Mancusi v. DeForte, 392
U. S.
364, 368 (1968).
The
foregoing authorities establish, as the District Court recognized, that
respondent lacks standing under the Fourth Amendment to suppress the
documents illegally seized from Wolstencroft. 434 F. Supp., at 126. The
Court of Appeals did not disturb the District Court's conclusion that
"Jack Payner possessed no privacy interest in the Castle Bank
documents that were seized from Wolstencroft." 434 F. Supp., at
126; see 590 F. 2d, at 207. Nor do we. United States v. Miller
[76-1 USTC ¶9380], 425
U. S.
435 (1976), established that a depositor has no expectation of privacy
and thus no "protectable Fourth Amendment interest" in copies
of checks and deposit slips retained by his bank.
Id.
, at 437; see id., at 442. Nothing in the record supports
a contrary conclusion in this case. 4
The
District Court and the Court of Appeals believed, however, that a
federal court should use its supervisory power to suppress evidence
tainted by gross illegalities that did not infringe the defendant's
constitutional rights. The
United States
contends that this approach--as applied in this case--upsets the careful
balance of interests embodied in the Fourth Amendment decisions of this
Court. In the Government's view, such an extension of the supervisory
power would enable federal courts to exercise a standardless discretion
in their application of the exclusionary rule to enforce the Fourth
Amendment. We agree with the Government.
III.
We certainly can understand the District Court's commendable desire to
deter deliberate intrusions into the privacy of persons who are unlikely
to become defendants in a criminal prosecution. See 434 F. Supp., at
135. No court should condone the unconstitutional and possibly criminal
behavior of those who planned and executed this "briefcase
caper." 5
Indeed, the decisions of this Court are replete with denunciations of
willfully lawless activities undertaken in the name of law enforcement. E.g.,
Jackson v. Denno, 378
U. S.
368, 386 (1964); see Olmstead v. United States, 277
U. S.
438, 485 (1928) (Brandeis, J., dissenting). But our cases also show that
these unexceptional principles do not command the exclusion of evidence
in every case of illegality. Instead, they must be weighed against the
considerable harm that would flow from indiscriminate application of an
exclusionary rule.
Thus,
the exclusionary rule "has been restricted to those areas where its
remedial objectives are most efficaciously served."
United States
v. Calandra, 414
U. S.
338, 348 (1974). The Court has acknowledged that the suppression of
probative but tainted evidence exacts a costly toll upon the ability of
courts to ascertain the truth in a criminal case. E.g., Rakas v.
Illinois, supra, at 137-138; United States v. Ceccolini, 435
U. S. 268, 275-279 (1978); Stone v. Powell, 428 U. S. 464,
489-491 (1976); see Michigan v. Tucker, 417 U. S. 433, 450-451
(1974). 6
Our cases have consistently recognized that unbending application of the
exclusionary sanction to enforce ideals of governmental rectitude would
impede unacceptably the truth-finding functions of judge and jury. E.g.,
Stone v. Powell, supra, at 485-489; United States v. Calandra,
supra, at 348. After all, it is the defendant, and not the
constable, who stands trial.
The
same societal interests are at risk when a criminal defendant invokes
the supervisory power to suppress evidence seized in violation of a
third party's constitutional rights. The supervisory power is applied
with some caution even when the defendant asserts a violation of his own
rights. 7
In United States v. Caceres, 440
U. S.
741, 754-757 (1979), we refused to exclude all evidence tainted by
violations of an executive department's rules. And in Elkins v.
United States, 364
U. S.
206, 216 (1960), the Court called for a restrained application of the
supervisory power.
"[A]ny
apparent limitation upon the process of discovering truth in a federal
trial ought to be imposed only upon the basis of considerations which
outweigh the general need for untrammeled disclosure of competent and
relevant evidence in a court of justice." 364
U. S.
, at 216.
See
also Nardone v. United States, 308
U. S.
338, 340 (1939).
We
conclude that the supervisory power does not authorize a federal court
to suppress otherwise admissible evidence on the ground that it was
seized unlawfully from a third party not before the court. Our Fourth
Amendment decisions have established beyond any doubt that the interest
in deterring illegal searches does not justify the exclusion of tainted
evidence at the instance of a party who was not the victim of the
challenged practices. Rakas v. Illinois, supra, at 137; Alderman
v.
United States
, supra, at 174-175. 8
The values assigned to the competing interests do not change because a
court has elected to analyze the question under the supervisory power
instead of the Fourth Amendment. In either case, the need to deter the
underlying conduct and the detrimental impact of excluding the evidence
remain precisely the same.
The
District Court erred, therefore, when it concluded that "society's
interest in deterring [bad faith] conduct by exclusion outweigh[s]
society's interest in furnishing the trier of fact with all relevant
evidence." 434 F. Supp., at 135. This reasoning, which the Court of
Appeals affirmed, amounts to a substitution of individual judgment for
the controlling decisions of this Court. 9
Were we to accept this use of the supervisory power, we would confer on
the judiciary discretionary power to disregard the considered
limitations of the law it is charged with enforcing. We hold that the
supervisory power does not extend so far.
The
judgment of the Court of Appeals is
Reversed.
1
18 U. S. C. §1001 provides in relevant part: "Whoever, in any
matter within the jurisdiction of any department or agency of the United
States knowingly and willfully . . . make any false, fictitious or
fraudulent statements or representations, . . . shall be fined not more
than $10,000 or imprisoned not more than five years, or both."
2
The unusual sequence of rulings was a byproduct of the consolidated
hearing conducted by the District Court. The court initially failed to
enter judgment on the merits. At the close of the evidence, it simply
granted respondent's motion to suppress. After the Court of Appeals for
the Sixth Circuit dismissed the government's appeal for want of
jurisdiction, the District Court vacated the order granting the motion
to suppress and entered a verdict of guilty. The court then reinstated
its suppression order and set aside the verdict. Respondent does not
challenge these procedures.
3
The
United States
argued in the District Court and the Court of Appeals that the guarantee
agreement was discovered through an independent investigation untainted
by the briefcase search. The Government also denied that its agents
willfully encouraged
Casper
's illegal behavior. For purposes of this opinion, we need not question
the District Court's contrary findings on either point.
4
We are not persuaded by respondent's suggestion that the Bahamian law of
bank secrecy creates an expectation of privacy not present in United
States v. Miller, 425 U. S. 435 (1976). At the outset, it is not
clear that secret information regarding this respondent's account played
any role in the investigation that led to the discovery of the critical
loan guarantee agreement. See p. 3, supra. Even if the causal
link were established, however, respondent's claim lacks merit. He cites
a provision, Ch. 96.9 of the Statute Law of the
Bahama Islands
(1909), that is no longer in effect. Bank secrecy is now safeguarded by
§19 of the Banks Act, I Bah. Rev. Stat. ch. 96 (1965), as amended, 1965
Bah. Acts No. 65, which provides in relevant part:
"Except
for the purpose of the performance of his duties or the exercise of his
functions under this Act or when lawfully required to do so by any court
of competent jurisdiction within the Colony or under the provisions of
any law of the Colony, no person shall disclose any information relating
to . . . the affairs of . . . any customer of a [bank] licensee which he
has acquired in the performance of his duties or the exercise of his
functions under this Act."
See also the Banks and Trust Companies Regulation Act, 1965 Bah. Acts
No. 64, §10, as amended, 1968 Bah. Acts No. 33, 1969 Bah. Acts No. 20,
1971 Bah. Acts No. 15. The statute is hardly a blanket guarantee of
privacy. Its application is limited; it is hedged with exceptions; and
we have been directed to no authority construing its terms. Moreover,
American depositors know that their own country requires them to report
relationships with foreign financial institutions. 31 U. S. C. §1121;
31 CFR §103.24. See generally California Bankers Assn. v. Shultz,
416
U. S.
21, 59-63, 71-76 (1974). We conclude that respondent lacked a reasonable
expectation of privacy in the Castle Bank records that documented his
account.
5
"The security of persons and property remains a fundamental value
which law enforcement officers must respect. Nor should those who flout
the rules escape unscathed." Alderman v.
United States
, 394
U. S.
165, 175 (1969). We note that in 1976 Congress investigated the
improprieties revealed in this record. See Oversight Hearings into the
Operations of the IRS before a Subcommittee of the House Committee on
Government Operations (Operation Tradewinds, Project Haven, and
Narcotics Traffickers Tax Program), 94th Cong., 1st Sess. As a result,
the Commissioner of Internal Revenue "called off" Operation
Trade Winds. Tr. of Oral
Arg.
35. The Commissioner also adopted guidelines that require agents to
instruct informants on the requirements of the law and to report known
illegalities to a supervisory officer, who is in turn directed to notify
appropriate state authorities. IRS Manual Supp. 9-21, §§ 9373.3(3),
9373.4 (Dec. 27, 1977). Although these measures appear on their face to
be less positive than one might expect from an agency charged with
upholding the law, they do indicate disapproval of the practices found
to have been implemented in this case. We cannot assume that similar
lawless conduct, if brought to the attention of responsible officials,
would not be dealt with appropriately. To require in addition the
suppression of highly probative evidence in a trial against a third
party would penalize society unnecessarily.
6
See also Kaufman v. United States, 394 U. S. 217, 237-238 (1969)
(Black, J. dissenting); Oaks, Studying the Exclusionary Rule in Search
and Seizure, 37 U. Chi. L. Rev. 665, 736-746, 755-756 (1970).
7
Federal courts may use their supervisory power in some circumstances to
exclude evidence taken from the defendant by "willful
disobedience of law." McNabb v. United States, 318 U. S.
332, 345 (1943); see Elkins v. United States, 364 U. S. 206, 223
(1966); Rea v. United States, 350 U. S. 214, 216-217 (1956); cf Hampton
v. United States, 425 U. S. 484, 495 (POWELL, J., concurring in the
judgment). This Court has never held, however, that the supervisory
power authorizes supression of evidence obtained from third parties in
violation of Constitution, statute or rule. The supervisory power merely
permits federal courts to supervise "the
admin
istration of criminal justice" among the parties before the bar. McNabb
v. United States, supra, at 340.
8
"The deterrent values of preventing the incrimination of those
whose rights the police have violated have been considered sufficient to
justify the suppression of probative evidence even though the case
against the defendant is weakened or destroyed. We adhere to that
judgment. But we are not convinced that the additional benefits of
extending the exclusionary rule to other defendants would justify
further encroachment upon the public interest in prosecuting those
accused of crime and having them acquitted or convicted on the basis of
all the evidence which exposes the truth." Alderman v.
United States
, supra, at 174-175. See also Stone v. Powell, 428
U. S.
464, 488-489 (1976); United States v. Calandra, 414
U. S.
338, 348 (1974).
The
dissent, post, at 8, urges that the balance of interests under
the supervisory power differs from that considered in Alderman
and like cases, because the supervisory power focuses upon the
"need to protect the integrity of the federal courts."
Although the District Court in this case relied upon a deterrent
rationale, we agree that the supervisory power serves the
"two-fold" purpose of deterring illegality and protecting
judicial integrity. See post, at 7. As the dissent recognizes,
however, the Fourth Amendment exclusionary rule serves precisely the
some purposes. Ibid., citing, inter alia, Dunaway v.
New York
, 442
U. S.
200, 218 (1979), and Mapp v.
Ohio
, 367
U. S.
643, 659-660 (1961). Thus, the Fourth Amendment exclusionary rule, like
the supervisory power, is applied in part "to protect the integrity
of the court rather than to vindicate the constitutional rights
of the defendant. . . ." Post, at 10; see generally Stone
v. Powell, 428
U. S.
465, 486 (1976); United States v. Calandra, supra, at 486.
In
this case, where the illegal conduct did not violate the respondent's
rights, the interest in preserving judicial integrity and in deterring
such conduct is outweighed by the societal interest in presenting
probative evidence to the trier of fact. See supra; see also,
e.g., Stone v. Powell, supra, at 485-486. None of the cases cited
by the dissent, post, at 7-9, supports a contrary view, since
none of those cases involved criminal defendants who were not themselves
the victims of the challenged practices. Thus, our decision today does
not limit the traditional scope of the supervisory power in any way; nor
does it render that power "superfluous." Post, at 12.
We merely reject its use as a substitute for established Fourth
Amendment doctrine.
9
The same difficulty attends respondent's claim to the protections of the
Due Process Clause of the Fifth Amendment. The Court of Appeals
expressly declined to consider the Due Process Clause. But even if we
assume that the unlawful briefcase search was so outrageous as to offend
fundamental `canons of decency and fairness,'" Rochin v.
California, 342
U. S.
165, 169 (1952), quoting Malinski v. New York, 324 U. S. 401, 417
(1945) (opinion of Frankfurter, J.), the fact remains that "[t]he
limitations of the Due Process Clause . . . come into play only when the
Government activity in question violates some protected right of the defendant."
Hampton v. United States, supra, at 490 (plurality opinion).
Concurring
Opinion
MR.
CHIEF JUSTICE BURGER, concurring.
I
join the Court's opinion because Payner--whose guilt is not in
doubt--cannot take advantage of the Government's violation of the
constitutional rights of Wolstencroft, for he is not a party to this
case. The Court's opinion makes clear the reason for that sound rule.
Orderly
government under our system of separate powers calls for internal
self-restraint and discipline in each Branch; this Court has no general
supervisory authority over operations of the Executive Branch, as it has
with respect to the federal courts. I agree fully with the Court that
the Exclusionary Rule is inapplicable to a case of this kind, but the
Court's holding should not be read as condoning the conduct of the IRS
"private investigators" disclosed by this record, or as
approval of their evidence-gathering methods.
Dissenting
Opinion
MR.
JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR. JUSTICE BLACKMUN
join, dissenting.
The
Court today holds that a federal court is unable to exercise its
supervisory powers to prevent the use of evidence in a criminal
prosecution in that court, even though that evidence was obtained
through intentional illegal and unconstitutional conduct by agents of
the
United States
, because the defendant does not satisfy the standing requirement of the
Fourth Amendment. That holding effectively turns the standing rules
created by this Court for assertions of Fourth Amendment violations into
a sword to be used by the Government to permit it deliberately to invade
one person's Fourth Amendment rights in order to obtain evidence against
another person. Unlike the Court, I do not believe that the federal
courts are unable to protect the integrity of the judicial system from
such gross government misconduct.
I.
The facts as found by the District Court need to be more fully stated in
order to establish the level of purposeful misconduct to which agents of
the United States have sunk in this case. Operation Trade Winds was
initiated by the Internal Revenue Service (IRS) in 1965 to gather
information about the financial activities of American citizens in the
Bahamas
. The investigation was supervised by Special Agent Richard Jaffe in the
Jacksonville
,
Fla.
, office. It was not until June 1972 that the investigation focused on
the Castle Bank and Trust Company of the
Bahamas
. In late October 1972 Jaffe asked one of his informants, Norman Casper,
to obtain the names and addresses of the individuals holding accounts
with the Castle Bank.
Casper
set to work soon thereafter. He was already an acquaintance of Michael
Wolstencroft, Vice-President and Trust Officer of the Castle Bank.
Casper
knew that Wolstencroft frequently visited the
United States
carrying a briefcase with documents from the Castle Bank.
Casper
therefore introduced Wolstencroft to Sybol Kennedy, a private detective
who worked for
Casper
. In early January 1973,
Casper
learned that Wolstencroft planned a business trip to the
United States
on January 15, 1973, and that he would have Castle Bank records with him
on that trip. Plans for the "briefcase caper," as
Casper
called it, began in earnest.
As
found by the District Court,
Casper
discussed the details of the plan with Jaffe on several occasions during
the week before Wolstencroft's trip. 1
Casper
told Jaffe that he could get the needed documents from Wolstencroft, but
that Jaffe would have to supply photographic services. On January 11,
Casper
specifically informed Jaffe that he planned to enter an apartment and
take Wolstencroft's briefcase. Jaffe then stated that he would have to
clear the operation with his superior, Troy Register, Jr., Chief of the
IRS Intelligence Division in
Jacksonville
. Clearance was obtained, and Jaffe told
Casper
to proceed with the plan. 2
Casper
called Jaffe the following day and asked if the IRS could refer him to a
locksmith who could be "trusted." Jaffe gave him such a
referral. 3
The
plans were finalized by the time of Wolstencroft's arrival on January
15. Wolstencroft went directly to Sybol Kennedy's apartment. The couple
eventually went to a restaurant for dinner. 4
Using a key provided by Kennedy, 5
Casper entered the apartment and stole Wolstencroft's briefcase.
Casper
then rendezvoused with the IRS-recommended locksmith in a parking lot
five blocks from the apartment; the locksmith made a key to fit the lock
on the case.
Casper
took the briefcase and newly made key to the house of an IRS agent.
Jaffe had selected that location for the photographing because it was
only eight blocks from the parking lot where
Casper
met the locksmith and Jaffe knew there was a need to act with haste. 6
The briefcase was opened in Jaffe's presence. Jaffe,
Casper
, and an IRS photography expert then photographed over 400 documents. 7
Casper
had arranged for Kennedy and Wolstencroft to be watched on their date,
and this lookout called
Casper
at the IRS agent's home when the couple finished their dinner. After all
the documents had been copied,
Casper
relocked the briefcase and returned it to Kennedy's apartment. The
entire "caper" lasted approximately one and one-half hours.
The
illegalities of agents of the
United States
did not stop even at that point, however. During the following two
weeks, Jaffe told
Casper
that the IRS needed additional information.
Casper
therefore sent Kennedy to visit Wolstencroft in the
Bahamas
. While there, acting pursuant to
Casper
's instructions, Kennedy stole a rolodex file from Wolstencroft's
office. This file was turned over to Jaffe, who testified in the
District Court that he had not cared how the rolodex file had been
obtained. 8
The
IRS paid
Casper
$8,000 in cash for the services he rendered in obtaining the information
about Castle Bank.
Casper
in turn paid approximately $1,000 of this money to Kennedy for her role
in the "briefcase caper" and the theft of the rolodex file.
The
"briefcase caper" revealed papers which showed a close
relationship between the Castle Bank and a Florida bank. Subpoenas
issued to that Florida bank resulted in the uncovering of the loan
guarantee agreement which was the principal piece of evidence against
respondent at trial. It is that loan agreement and the evidence
discovered as a result of it that the District Court reluctantly 9
suppressed under the Due Process Clause of the Fifth Amendment and under
its supervisory powers.
The
District Court made several key findings concerning the level of
misconduct of agents of the
United States
in these activities. The District Court found that "the
United States
, through its agents, Richard Jaffe, and others, knowingly and willfully
participated in the unlawful seizure of Michael Wolstencroft's
briefcase, and encouraged its informant, Norman Casper, to arrange the
theft of a rolodex from the offices of Castle Bank." 434 F. Supp.
113, 120-121 (ND Ohio 1977) (footnotes omitted). The District Court
concluded that "the
United States
was an active participant in the admittedly criminal conduct in which
Casper
engaged. . . ."
Id.
, at 121. The District Court found that "the illegal conduct
of the government officials involved in this case compels the conclusion
that they knowingly and purposefully obtained the briefcase materials
with bad faith hostility toward the strictures imposed on their
activities by the Constitution."
Id.
, at 130 (footnote omitted) (emphasis in original). The District
Court considered the actions of Jaffe and
Casper
"outrageous," ibid., because they "plotted,
schemed and ultimately acted in contravention of the United States
Constitution and laws of
Florida
, knowing that their conduct was illegal." Ibid.
The
most disturbing finding by the District Court, however, related to the
intentional manipulation of the standing requirements of the Fourth
Amendment by agents of the
United States
, who are, of course, supposed to uphold and enforce the Constitution
and laws of this country. The District Court found:
"It
is evident that the Government and its agents, including Richard Jaffe,
were, and are, well aware that under the standing requirement of the
Fourth Amendment, evidence obtained from a party pursuant to an
unconstitutional search is admissible against third parties who's [sic]
own privacy expectations are not subject to the search, even though the
cause for the unconstitutional search was to obtain evidence
incriminating those third parties. This Court finds that, in its desire
to apprehend tax evaders, a desire the Court fully shares, the
Government affirmatively counsels its agents that the Fourth Amendment
standing limitation permits them to purposefully conduct an
unconstitutional search and seizure of one individual in order to obtain
evidence against third parties, who are the real targets of the
governmental intrusion, and that the IRS agents in this case acted, and
will act in the future, according to that counsel. Such governmental
conduct compels the conclusion that Jaffe and
Casper
transacted the 'briefcase caper' with a purposeful, bad faith hostility
toward the Fourth Amendment rights of Wolstencroft in order to obtain
evidence against persons like Payner."
Id.
, at 131-133 (footnotes omitted).
The
Court of Appeals did not disturb any of these findings. 590 F. 2d 206
(CA6 1979) (per curiam). Nor does the Court today purport to set
them aside. See ante, at 3, n. 3. But cf. ante, at 6, n.
5. It is in the context of these findings--intentional illegal actions
by Government agents taken in bad-faith hostility toward the
constitutional rights of Wolstencroft for the purpose of obtaining
evidence against persons such as the respondent through manipulation of
the standing requirements of the Fourth Amendment--that the suppression
issue must be considered.
II.
This Court has on several occasions exercised its supervisory powers
over the federal judicial system in order to suppress evidence that the
government obtained through misconduct. See, e.g., McNabb v. Untied
States, 318
U. S.
332 (1943); Upshaw v. United States, 335
U. S.
410 (1948); Mesarosh v. United States, 352
U. S.
1 (1956); Mallory v. United States, 354
U. S.
449 (1957); Elkins v. United States, 364
U. S.
206 (1960). Cf. Rea v.
United States
, 350
U. S.
214 (1956) (supervisory powers used to enjoin federal agent from
testifying in state criminal prosecution concerning illegal search and
from turning over to the State evidence illegally seized). The rational
for such suppression of evidence is two-fold: to deter illegal conduct
by government officials, and to protect the integrity of the federal
courts. McNabb v. United States, supra, at 342, 345, 347; Mesarosh
v.
United States
, supra, at 14; Elkins v.
United States
, supra, at 217, 222-223. Cf. Mapp v.
Ohio
, 367
U. S.
643, 659-660 (1961) (Fourth and Fourteenth Amendments); Brown v.
Illinois
, 422
U. S.
590, 599-600 (1975) (Fourth and Fourteenth Amendments); Dunaway v.
New York
, 442
U. S.
200, 218 (1979) (Fourth and Fourteenth Amendments). The Court has
particularly stressed the need to use supervisory powers to prevent the
federal courts from becoming accomplices to such misconduct. See, e.g.,
McNabb v. United States, supra, at 345 ("Plainly, a conviction
resting on evidence secured through such a flagrant disregard of the
procedure which Congress has commanded cannot be allowed to stand
without making the courts themselves accomplices in willful disobedience
of law"); Mesarosh v. United States, supra, at 14 (the Court
should use its supervisory powers in federal criminal cases "to see
that the waters of justice are not polluted"); Elkins v. United
States, supra, at 223 (federal courts should not be
"accomplices in the willful disobedience of a Constitution they are
sworn to uphold").
The
need to use the Court's supervisory powers to suppress evidence obtained
through governmental misconduct was perhaps best expressed by Mr.
Justice Brandeis in his famous dissenting opinion in Olmstead v.
United States, 277
U. S.
438, 471-485 (1928):
"Decency,
security and liberty alike demand that government officials shall be
subjected to the same rules of conduct that are commands to the citizen.
In a government of laws, existence of the government will be imperilled
if it fails to observe the law scrupulously. Our Government is the
potent, the omnipresent teacher. For good or for ill, it teaches the
whole people by its example. Crime is contagious. If the Government
becomes a lawbreaker, it breeds contempt for law; it invites every man
to become a law unto himself; it invites anarchy. To declare that in the
admin
istration of the criminal law the end justifies the means--to declare
that the Government may commit crimes in order to secure the conviction
of a private criminal--would bring terrible retribution. Against that
pernicious doctrine this Court should resolutely set its face."
Id.
, at 485.
Mr.
Justice Brandeis noted that "a court will not redress a wrong when
he who invokes its aid has unclean hands," id., at 483, and
that in keeping with that principle the court should not lend its aid in
the enforcement of the criminal law when the government itself was
guilty of misconduct. "Then aid is denied despite the defendant's
wrong. It is denied in order to maintain respect for law; in order to
promote confidence in the
admin
istration of justice; in order to preserve the judicial process from
contamination."
Id.
, at 484. See also id., at 469-471 (Holmes, J.,
dissenting); id., at 488 (Stone, J., dissenting); Lopez v.
United States, 373
U. S.
427, 453, n. 3 (1963) (BRENNAN, J., dissenting). 10
The
reason for this emphasis on the need to protect the integrity of the
federal courts through the use of supervisory powers can be derived from
the factual contexts in which supervisory powers have been exercised. In
large part when supervisory powers have been invoked the Court has been
faced with intentional illegal conduct. It has not been the case that
"[t]he criminal is to go free because the constable has
blundered," People v. Defore, 242 N. Y. 13, 21, 150 N. E.
585, 587 (1926). In these cases there has been no "blunder" by
the government agent at all; rather, the agent has intentionally
violated the law for the explicit purpose of obtaining the evidence in
question. Cf. Lopez v.
United States
, supra, at 440 (supervisory powers should be exercised only if
there has been "manifestly improper conduct by federal
officials"). If the federal court permits such evidence, the
intended product of deliberately illegal government action, to be used
to obtain a conviction, it places its imprimatur upon such lawlessness
and thereby taints its own integrity.
The
present case falls within that category. The District Court found, and
the record establishes, a deliberate decision by government agents to
violate the constitutional rights of Wolstencroft for the explicit
purpose of obtaining evidence against persons such as Payner. The
actions of the government agents--stealing the briefcase, opening it,
and photographing all the documents inside--were both patently in
violation of the Fourth Amendment rights of Wolstencroft 11
and plainly in violation of the criminal law. 12
The Government knew exactly what information it wanted, and it was that
information which was stolen from Wolstencroft. Similarly, the
Government knew that it wanted to prosecute persons such as Payner, and
it made a conscious decision to forego any opportunity to prosecute
Wolstencroft in order to obtain illegally the evidence against Payner
and others. 13
Since
the supervisory powers are exercised to protect the integrity of the court,
rather than to vindicate the constitutional rights of the defendant, it
is hard to see why the Court today bases its analysis entirely on Fourth
Amendment standing rules. The point is that the federal judiciary should
not be made accomplices to the crimes of
Casper
, Jaffe and others. The only way the IRS can benefit from the evidence
it chose to obtain illegally is if the evidence is admitted at trial
against persons such as Payner; that was the very point of the criminal
exercise in the first place. If the IRS is permitted to obtain a
conviction in federal court based almost entirely on that illegally
obtained evidence and its fruits, then the judiciary has given full
effect to the deliberate wrongdoings of the government. The federal
court does indeed become the accomplice of the government lawbreaker, an
accessory after the fact, for without judicial use of the evidence the
"caper" would have been for nought. Such a pollution of the
federal courts should not be permitted. 14
It
is particularly disturbing that the Court today chooses to allow the IRS
deliberately to manipulate the standing rules of the Fourth Amendment to
achieve its ends. As previously noted, the District Court found that
"the Government affirmatively counsels its agents that the Fourth
Amendment standing limitation permits them to purposefully conduct an
unconstitutional search and seizure of one individual in order to obtain
evidence against third parties, who are the real targets of the
governmental intrusion, and that the IRS agents in this case acted, and
will act in the future, according to that counsel." 434 F.
Supp., at 132-133 (emphasis supplied). Whatever role those standing
limitations may play, it is clear that they were never intended to be a
sword to be used by the Government in its deliberate choice to sacrifice
the constitutional rights of one person in order to prosecute another.
The
Court's decision to engraft the standing limitations of the Fourth
Amendment onto the exercise of supervisory powers is puzzling not only
because it runs contrary to the major purpose behind the exercise of the
supervisory powers--to protect the integrity of the court--but also
because it appears to render the supervisory powers superfluous. In
order to establish that suppression of evidence under the supervisory
powers would be proper, the Court would also require Payner to establish
a violation of his Fourth or Fifth Amendment rights, 15
in which case suppression would flow directly from the Constitution.
This approach is totally unfaithful to our prior supervisory power
cases, which, contrary to the Court's suggestion, are not constitutional
cases in disguise.
I
also do not understand the basis for the Court's assertion that this is
not a case in which the District Court was supervising the
admin
istration of justice "among the parties before the bar," ante,
at 8, n. 7, and therefore supervisory powers are inapplicable. Clearly
the Government is before the bar. Equally clearly, the Government
embarked on this deliberate pattern of lawless behavior for the express
purpose of gaining evidence against persons such as Payner, so there can
be no legitimate claim that the illegal actions are only tangentially
related to the present prosecution. Instead, the Government misconduct
is at the very heart of this case; without the evidence produced by the
illegal conduct, there would have been no case at all, and Payner would
never have been brought before the bar. This is simply not a case in
which a federal court has attempted to exercise "general
supervisory authority over operations of the Executive Branch," ante,
at 1 (BURGER, C. J., concurring). Rather, this is a case where the
District Court refused to be made an accomplice to illegal conduct by
the IRS by permitting the agency to use the proceeds of its crimes for
the very purpose for which they were committed--to convict persons such
as Payner.
Contrary
to the Court's characterization, this is also not a case in which there
has been "indiscriminate" or "unbending" application
of the exclusionary rule. The District Court noted that "exclusion
on the basis of supervisory power is only done as a last resort,"
434 F. Supp., at 134, n. 74. That court concluded that suppression was
proper only where there had been "purposefully illegal"
conduct by the Government to obtain the evidence or where the
Government's conduct was "motivated by an intentional bad faith
hostility to a constitutional right."
Id.
, at 134-135 (footnotes omitted). In this case, both those
threshold requirements were met, and the District Court in addition
concluded that absent suppression there was no deterrent to continued
lawless conduct undertaken by the IRS to facilitate these types of
prosecutions. 16
This is not "a 'chancellor's foot' veto [by the District Court]
over law enforcement practices of which it did not approve," United
States v. Russell, 411 U. S. 423, 435 (1973); Hampton v. United
States, 425 U. S. 484, 490 (1976) (plurality opinion). As my Brother
POWELL noted on a prior occasion, "[t]he fact that there is
sometimes no sharply defined standard against which to make these
judgments [of fundamental fairness] is not itself a sufficient reason to
deny the federal judiciary's power to make them when warranted by the
circumstances. . . . Nor do I despair of our ability in an appropriate
case to identify appropriate standards for police practices without
relying on the 'chancellor's' 'fastidious squeamishness or private
sentimentalism.'" Hampton v. United States, supra, at 495,
n. 6 (POWELL, J., concurring). That appropriate case has arrived, and
the Court should prevent the Government from profiting by use in the
federal courts of evidence deliberately obtained by illegal actions
taken in bad-faith hostility to constitutional rights.
I
would affirm the judgment of the Court of Appeals and suppress the
fruits of the Government's illegal action under the Court's supervisory
powers. 17
Accordingly, I dissent.
1
The Court rather blandly states that "Agent Jaffe approved the
basic outline of the plan," ante, at 2. Such a
characterization is misleading in light of the findings of the District
Court. As is noted in the text infra, Jaffe knew explicit details
of the operation in advance and helped to make the arrangements by
recommending a locksmith who could be "trusted," by providing
a safe and convenient location for the photographing of the documents,
and by providing a photographer from the IRS.
2
Jaffe testified in the District Court that "[w]hatever I knew, he
[Register] knew." See 434 F. Supp. 113, 121, n. 40; Tr. in CR
76-305 (ND
Ohio
), p. 513.
3
It was clear why
Casper
needed a locksmith who could be "trusted."
Casper
testified as follows in the District Court:
"Q.
Isn't it a fact, Mr. Casper, you knew you were committing an illegal
act, and you wanted somebody who could be trusted to keep his mouth shut
about it?
"A. There is that possibility, yes.
"Q. Isn't that the fact?
. . .
"A. Yes." 434 F. Supp., at 119, n. 20; Tr. in CR 76-305 (ND
Ohio
), pp. 452-453.
It is interesting to note that even the locksmith who could be
"trusted" refused to enter Kennedy's apartment with
Casper
. Tr. in CR 76-305 (ND
Ohio
), p. 451.
The
Government contends that when Agent Jaffe made the referral he did not
know what use Carter intended to make of such a locksmith. Brief for
United States
6, n. 4. The District Court found, however, that Jaffe already knew at
the time of the referral that
Casper
intended to enter Kennedy's apartment and to take and open
Wolstencroft's briefcase. There were, then, only two logical
alternatives why
Casper
would want such a locksmith: to make a key to enter the briefcase, or to
make a key to enter the apartment. Either way, Jaffe must have known
that
Casper
's conduct was improper, and yet Jaffe made the referral anyway.
4
It was not established at trial what occurred in Kennedy's apartment
prior to the couple's departure for dinner. Since it was peculiarly
within the power of the United States to produce Kennedy as a witness
and since the Government did not explain her absence from the trial, the
District Court inferred that Kennedy's testimony "would be
unfavorable to the Government by further delineating the
improprieties" of the "briefcase caper." 434 F. Supp., at
119, n. 22.
5
The District Court, after hearing the testimony of both
Casper
and Jaffe, disbelieved Jaffe's assertion that
Casper
had informed him beforehand that Kennedy had given
Casper
a key with which to enter the apartment. See 434 F. Supp., at 119, n.
15; id., at 121, n. 40. See also n. 3, supra.
6
434 F. Supp., at 120, n. 25; Tr. in CR 76-305 (ND
Ohio
), pp. 494-496.
7
As noted previously,
Casper
had told Jaffe to provide the photographic equipment. Jaffe testified
that one of the cameras used was a "micro-filmer" which was
"much quicker" than a regular camera. This camera had been
brought by the IRS because "
Casper
had to get the documents and the briefcase back to the apartment prior
to the return of the owner." Tr. in CR 76-305 (ND
Ohio
), pp. 493-495. This testimony again shows that Jaffe was fully aware in
advance that the activities of the evening were improper.
8
See 434 F. Supp., at 120, and n. 34; Tr. in CR 76-305 (ND
Ohio
), p. 501.
9
See 434 F. Supp., at 124, 129, 134, n. 74.
10
The Court's opinion inexplicably ignores this basic thrust of our prior
supervisory powers cases, and instead implies that the only value served
by suppression is deterrence of future misconduct. See ante, at
9. Deterrence is one purpose behind the suppression of evidence in such
situations, but it is by no means the only one.
11
The Government conceded below that Wolstencroft's Fourth Amendment
rights had been violated. 434 F. Supp., at 126. See Tr. in CR 76-305 (ND
Ohio
), p. 502. See also Brief for
United States
in No. 78-5278 (CA6), p. 20. Cf. Tr. of Oral
Arg.
14; Brief for
United States
39. The Court agrees that the conduct was unconstitutional. Ante,
at 6.
12
The Court characterizes the actions of Jaffe and
Casper
in the briefcase incident as "possibly criminal behavior," ante,
at 6. The District Court concluded that the actions of the IRS appeared
to constitute a prima facie case of criminal larceny under
Florida
law, and possibly violated other criminal laws of that State as well.
434 F. Supp., at 130, n. 66.
Casper
admitted in the District Court that he knew he was committing an illegal
act. Tr. in CR 76-305 (ND
Ohio
), pp. 452-453. The stealing of the rolodex file from Wolstencroft's
office was also both unconstitutional and criminal. That theft, however,
produced no additional evidence against Payner. See 434 F. Supp., at
123, n. 56.
13
See 434 F. Supp., at 129, n. 65; id., at 131-133, and n. 69. See
also Tr. in CR 76-305 (ND Ohio), p. 505.
Wolstencroft
in fact was indicted for aiding and abetting Payner. Brief for
United States
3, n. 2. However, Wolstencroft is a Bahamian resident, and did not
return to the
United States
to answer the indictment. Ibid. The mere fact that the Government
went through the steps of indicting Wolstencroft does not in any way
undermine the District Court's finding, based on substantial evidence in
the record, that Wolstencroft was never the target of the IRS
investigation. In light of the Government's concession that
Wolstencroft's Fourth Amendment rights were violated, it is hard to see
how the banker could be successfully prosecuted on the aiding and
abetting charge.
14
It is simply not a sufficient cure for the Court to denounce the actions
of the IRS, ante, at 6, while at the same time rewarding the
Government for this conduct by permitting the IRS to use the evidence in
the very manner which was the purpose of the illegal and
unconstitutional activities.
15
The Court appears to suggest that there can be no suppression of
evidence based on a violation of the Due Process Clause in this case
because it was not Payner who was the immediate victim of the
Government's outrageous conduct. Ante, at 9, n. 9. Although the
District Court concluded that the evidence should be suppressed under
the Due Process Clause as well as under its supervisory powers, the
Court of Appeals specifically did not reach that issue, 590 F. 2d 206
(CA6 1979) (per curiam), and the Government purposely did not
raise the issue in this Court. See Pet. for Cert. 21, n. 13. The Court
therefore should not reach out to address the issue in a footnote.
In
addition, the only authority cited by the Court for its suggestion is Hampton
v. United States, 425 U. S. 484, 490 (1976) (plurality opinion).
Hampton
was only a plurality opinion, and the issue for which the Court purports
to cite it was not raised by the facts of that case. Similarly, in the
Court of Appeals below the United States was able to cite only Sims
v. Georgia, 389 U. S. 404, 407 (1967), a case plainly not on point,
and the sentence from the Hampton plurality opinion quoted by the
Court, ante, at 9, n. 9, for the proposition that Payner lacked
standing to raise a due process argument. See Brief for
United States
in No. 78-5278 (CA6), pp. 21-22; Reply Brief 6. The issue whether the
standing limitations this Court has imposed for challenging Fourth
Amendment violations also apply for violations of the Due Process Clause
based on outrageous government conduct has not yet been settled by this
Court. Cf. 434 F. Supp., at 129, n. 65, and authorities discussed
therein. The due process issue should be left for consideration in the
first instance by the Court of Appeals on remand.
16
There is no suggestion by the Government that any action has been taken
against
Casper
, Jaffe or others for the conduct exposed in this case. The Court admits
that the corrective measures taken by the IRS "appear on their face
to be less positive than one might expect from an agency charged with
upholding the law," ante, at 6, n. 5. The District Court
specifically found that the Government agents knew they were violating
the Constitution at the time, 434 F. Supp., at 135, n. 79, and that
continued manipulation of the standing limitations of the Fourth
Amendment by the IRS could be deterred only by suppression of the
evidence, id., at 133.
17
The Government argues that Rule 402 of the Federal Rules of Evidence
stripped the federal judiciary of its supervisory powers to exclude
evidence obtained through gross misconduct by agents of the
United States
. In the Court of Appeals this argument was relegated to one footnote,
see Brief for
United States
in No. 78-5278 (CA6), p. 41, n. 27. The Court does not address the
issue. I would merely note that the Government's discussion of the
legislative history behind Rule 402 fails to convince me that it was
Congress' intent to attempt such a radical curtailment of the
longestablished supervisory powers of the federal judiciary. See United
States v. Jacobs, 547 F.2d 772, 777 (CA2 1976), cert. dismissed as
improvidently granted, 436
U. S.
31 (1978).
[79-1
USTC ¶9149]
United States of America
, Plaintiff-Appellant v. Jack Payner, Defendant-Appellee
(CA-6),
U. S. Court of Appeals, 6th Circuit, No. 78-5278, 590 F2d 206, 1/12/79,
Affirming unreported District Court order
[18 U. S. C. §§ 1001 and 3731]
Criminal tax prosecution: Motion to suppress: Proper exercise of
District Court's supervisory powers.--A District Court's suppression
of all evidence obtained from an illegal search and seizure of a brief
case was sustained as a proper exercise of that Court's supervisory
powers. The
Appeals Court
found it unnecessary to review the constitutional issues raised on
appeal.
James
R. Williams, United States Attorney, M. Carr Ferguson, Assistant
Attorney General, Gilbert E. Andrews,
Rob
ert E. Lindsay, James A. Bruton, Department of Justice, Washington, D.
C. 20530, for plaintiff-appellant. Bennet Kleinman,
1300 Bond Court
Bldg.,
Cleveland
,
Ohio
44114
, for defendant-appellee.
Before
PHILLIPS, Chief Judge, KEITH, Circuit Judge, and PECK, Senior Circuit
Judge.
PER
CURIAM.
This
is the second appeal by the Government from the decision of the district
court granting the motion of defendant to suppress evidence. In United
States v. Payner [78-1 USTC ¶9305], 572 F. 2d 114 (6th Cir. 1978),
this court dismissed the appeal for want of jurisdiction.
Jack
Payner was indicted for making false statements on his income tax
return. The case was tried before the district court sitting without a
jury. A motion to suppress was made in advance of trial, but no ruling
was made at that time. Instead the district judge proceeded to try the
defendant on the merits of the case along with the motion to suppress.
After all the evidence had been heard, the district court granted the
motion of defendant to suppress, but made no decision on the merits. 1
After
this court dismissed the appeal in Payner I, the district court
ordered that its previous suppression order be vacated and entered a
verdict of guilty. Then the district court reinstated its suppression
order and set aside the verdict of guilty. The Government again appeals
from the suppression order.
Reference
is made to the comprehensive opinion of the district court, United
States v. Payner [77-1 USTC ¶9389], 434 F. Supp. 113 (N. D. Ohio
1977) for a recitation of the facts upon which the suppression order is
grounded.
Upon
consideration of the briefs and arguments of counsel and the entire
record, we conclude that the district court did not err in suppressing
the evidence in the exercise of its supervisory powers. We agree with
the district court that suppression was justified. Since we base our
decision upon the exercise of supervisory powers, it is not necessary to
reach the constitutional questions raised on the appeal.
Affirmed.
1
In his concurring opinion in Payner I, Judge Engel pointed out
that the difficulty with the procedure followed by the district court is
that it "unduly suspends the adjudicatory process after jeopardy
has attached and leads to unnecessary confusion and a very real danger
that the final judgment may be rendered on stale and long-forgotten
evidence." 572 F. 2d at 146.
[78-1
USTC ¶9305]
United States of America
, Plaintiff-Appellant v. Jack Payner, Defendant-Appellee
(CA-6),
U. S. Court of Appeals, 6th Circuit, No. 77-5200, 572 F2d 144, 3/17/78,
Dismissing appeal from District Court, 77-1 USTC ¶9389, 434 F. Supp.
113 and 77-2 USTC ¶9492
[18 U. S. C. §§ 1001 and 3731]
Court of appeals: Jurisdiction: Appeal: Motion: Criminal tax
prosecution.--The court of appeals lacked jurisdiction to consider
the government's appeal from the district court's grant, in a
prosecution for making a false statement on a tax return, of the
defendant's motion to suppress the government's evidence. The appeal was
undertaken after the hearing of the evidence of the trial on its merits
and before a verdict on the indictment.
One
concurrence.
William
D. Beyer, United States Attorney, Cleveland, Ohio 44114, John F. Hyland,
Jr., Dora A. Saharuni, M. Carr Ferguson,
Rob
ert E. Lindsey, James A. Bruton, Department of Justice, Washington, D.
C. 20530, for plaintiff-appellant. Bennett Kleinman, Bernard J.
Stuplinski, Kahn, Kleinman, Yanowitz & Arnson, 1300 Bond Court
Bldg., Cleveland, Ohio 44114, for defendant-appellee.
Before
PHILLIPS, Chief Judge, and ENGEL and KEITH, Circuit Judges.
PHILLIPS,
Chief Judge, delivered the opinion of the Court, in which KEITH, Circuit
Judge, joined. ENGEL, Circuit Judge filed a separate concurring opinion.
PHILLIPS,
Chief Judge.
The
Government appeals from the decision of the district court suppressing
evidence in a prosecution for knowingly and wilfully making a false
statement on a federal income tax return. Reference is made to the
comprehensive opinion of the district court for a recitation of
pertinent facts. United States v. Payner [77-1 USTC ¶9389], 434
F. Supp. 113 (N. D. Ohio 1977).
The
case was tried before the district judge sitting without a jury. A
motion to suppress was filed in advance of the trial, but no ruling was
made upon the motions at that time. After a jury had been waived,
"by agreement of the parties, the court proceeded to try the
defendant on the merits of the indictment together with the motion to
suppress." 434 F. Supp. at 118. After all the evidence had been
heard, the district judge granted defendant's motion to suppress the
Government's evidence. No decision on the merits of the case has yet
been made.
In
a federal criminal prosecution, the Government's right to appeal is
limited to the authorization contained in 18
U. S.
C. §3731. We construe this statute to forbid by express language the
appeal undertaken in the present case:
An
appeal by the United States shall lie to a court of appeals from a
decision or order of a district court suppressing or excluding evidence
or requiring the return of seized property in a criminal proceeding, not
made after the defendant has been put in jeopardy and before the verdict
or finding on an indictment or information, if the United States
attorney certifies to the district court that the appeal is not taken
for purposes of delay and that the evidence is a substantial proof of a
fact material in the proceeding. (Emphasis added).
As
stated above, this appeal was undertaken after the hearing of the
evidence of the trial on its merits and before a verdict on the
indictment. The Government argues that the purpose of the statute is to
permit a governmental appeal in all cases where constitutionally
permissible and that the statute is to be construed liberally, relying
upon United States v. Wilson, 420 U. S. 332 (1975), and United
States v. Beck, 483 F. 2d 203 (3rd Cir. 1973), cert. denied,
414 U. S. 1132 (1974). No matter how liberally this statute may be
construed, however, we hold that it cannot be interpreted to grant to
the Government a right to appeal under the facts of the present case.
It
is further contended by the Government that double jeopardy has not
occurred. We express no opinion on the double jeopardy issue. We simply
hold that under the facts of this case, the express language of the
statute bars an appeal by the Government.
Although
the district judge is to be commended for the care with which he has
researched the issues and the comprehensive opinion he has prepared, the
procedure followed in the present case should not be encouraged or
condoned. There should have been a separate hearing on the motion to
suppress and disposition of that motion should have been made before the
beginning of the trial on the merits. If this procedure had been
followed, the Government would have preserved its right, before the
beginning of the trial on the merits, to appeal under 18
U. S.
C. §3731 from the decision of the district court granting the motion to
suppress.
The
Government filed a petition in this court on July 22, 1977, seeking a
writ of mandamus directing the district court to vacate its order
suppressing the Government's evidence and to render a verdict on all the
evidence. The petition for writ of mandamus was denied by an order of
this court dated September 30, 1977, in which we said:
The
Government has filed a petition for writ of mandamus seeking an order
from this court directing United States District Judge John M. Manos to
vacate an order entered on April 28, 1977 suppressing the government's
evidence in a criminal prosecution, United States v. Jack Payner,
and further directing the district judge to render a verdict on all of
the evidence introduced at the trial. Prior to filing the petition for
writ of mandamus, the Government filed a notice of appeal from an order
of the district court suppressing certain evidence in the case of
United States
v. Payner. The appeal which the Government has commenced will
present every issue properly before the court pursuant to the
Government's limited right of appeal in criminal cases pursuant to 18
U. S.
C. §3731. The Government may not expand the limited right of appeal
under [the statute] by resort to the extraordinary writ of mandamus. The
effect of the order of the district court suppressing the evidence in United
States v. Payner is an issue, in any event, left to the decision of
the panel to whom that appeal is assigned.
The
appeal is dismissed for want of jurisdiction.
Concurring
Opinion
ENGEL,
Circuit Judge, concurring:
Since
in my opinion it is clear that the defendant had been put in jeopardy
before the trial court entered its order suppressing the evidence, I
concur in the conclusion that we are without jurisdiction to hear the
government's appeal. The language of 18
U. S.
C. §3731 is too clear to be ignored.
Aside
from the plain command of the statute, the difficulty with the procedure
followed by the district court is that it unduly suspends the
adjudicatory process after jeopardy has attached and leads to
unnecessary confusion and a very real danger that the final judgment may
be rendered on stale and long-forgotten evidence.
[71-1
USTC ¶9391]
United States of America
, Plaintiff-Appellee v. Ray F. Wilson and Ruby J. Wilson,
Defendants-Appellants
(CA-5),
U. S. Court of Appeals, 5th Circuit, No. 30340 Summary Calendar *, 440 F2d
1103, 3/30/71, Aff'g an unreported District Court decision
[Code Secs. 7201 and 7206--Result unchanged by '69 Tax Reform Act]
Crimes: Tax evasion: False return: Suppression of evidence: Finality
of judgment.--H and W were convicted of willful tax evasion and
making a false return. Since he had been sentenced on only three of the
six counts of the conviction, H's appeal was dismissed for want of a
final judgment. W's conviction was affirmed. The District Court had
properly denied a motion for new trial and acquittal based on the
prosecution's alleged failure to prove willfulness and a motion to
suppress evidence allegedly gathered illegally.
United
States Attorney,
Houston
,
Tex.
, for plaintiff-appellee. Ray F. Wilson, 3502 Arbor, Houston, Tex., pro
se.
Rob
erson L. King, 203 Professional Arts Bldg., 4720 Dowling St., Houston,
Tex., for defendants-appellants.
Before
GEWIN, GOLDBERG and DYER, Circuit Judges.
DYER,
Circuit Judge:
Ray
F. Wilson and Ruby J. Wilson appeal following conviction and sentence
for violations of 26
U. S.
C. §§ 7201 and 7206(1). 1 They contend
that the District Court erroneously denied their motion to suppress the
evidentiary fruits of an allegedly illegal governmental seizure and
interrogation. Moreover, they claim that because the Government failed
to prove willfulness, the court erroneously denied their motions for new
trial and for acquittal. We dismiss the appeal as to Ray F. Wilson and
affirm the trial court's judgment as to Ruby J. Wilson.
After
a jury found Ray F. Wilson guilty of six counts of income tax evasion
and failure to report income, the District Judge orally imposed sentence
from the bench. Subsequently he published a written judgment reiterating
his oral pronouncement. On both occasions the judge sentenced
Wilson
on three counts but imposed no sentence "at this time" on the
other three. The Government argues that the judge's action has made Ray
Wilson's appeal premature: there has been no final judgment with regard
to three counts for which
Wilson
has been found guilty.
In
criminal cases the sentence is the "final judgment" for which
appeals may be taken. Parr v. United States, 1956, [56-2 USTC
¶9641] 351 U. S. 513, 518; Berman v. United States, 1937, 302 U.
S. 211, 212; Yeloushan v. United States, 5 Cir. 1963, 313 F. 2d
303, 304, cert. denied, 373 U. S. 912; see Corey v. United
States, 1963, 375 U. S. 169, 172; United States v. Hark,
1944, 320 U. S. 531, 534. Only probation comporting with 18
U. S.
C. A. §3651 obviates the necessity for imposition or execution of
sentence to create a final decree in criminal proceedings. See, e.g.,
Andrews v.
United States
, 1963, 373
U. S.
334, 340. Cognizant of the problems of piecemeal litigation, the Supreme
Court has often emphasized the pre-requisite of finality for appeal. See
id. at 340. Furthermore, when a multi-court indictment and verdit is
involved, it is essential for post-conviction review that the record
disclose the precise sentence for each count. White v.
United States
, 5 Cir. 1968, 396 F. 2d 822, 826. This Court has strongly expressed
its disapproval of general sentences in such instances. E.g., Putt v.
United States
, 5 Cir. 1968, 392 F. 2d 64, 67, cert. denied, 393
U. S.
929; Benson v. United States, 5 Cir. 1964, 332 F. 2d 288, 292;
see Stone-cipher v.
United States
, 5 Cir. 1969, 409 F. 2d 745, 746.
In
light of these authorities, it becomes clear that Ray Wilson has not
received a final judgment entitling him to appellate review. See Carroll
v.
United States
, 1957, 354
U. S.
394, 412; 28
U. S.
C. A. §1291. By no stretch of the imagination can a sentence, or fine,
imposed on three counts of a six-count conviction be equated with a
sentence imposed on all six counts. Nor can the trial judge's decision
to withhold sentence on three counts be categorized as probation.
Finally, the specific language of the District Court's judgment
pretermits our consideration of the sentence as "general."
Consequently, we dismiss Ray F. Wilson's appeal and remand this cause to
the District Court for resentencing on all six counts. See White v.
United States
, supra at 825-26.
Ruby
J. Wilson, however, has satisfied the requirements of 28
U. S.
C. A. §1291, for the District Judge imposed specific fines on all six
counts for which she was convicted. Having considered the record and the
District Court's careful findings of fact and conclusions of law, we
conclude that Mrs. Wilson's motion to suppress was properly denied. United
States v. Prudden, 5 Cir. 1970, [70-1 USTC ¶9336] 424 F. 2d 1021, cert.
denied, 400
U. S.
831; see United States v. Tonahill, 5 Cir. 1970, [70-2 USTC
¶9511] 430 F. 2d 1042, 1044-45; Marcus v. United States, 5 Cir.
1970, [70-1 USTC ¶9213] 422 F. 2d 752, 756. Furthermore, examining the
evidence in the light most favorable to the Government, the court
committed no error in denying her motions for new trial and for
acquittal on the ground that the Government had failed to prove
willfulness. See United States v. Jernigan, 5 Cir. 1969, [69-1
USTC ¶9397] 411 F. 2d 471, 473, cert. denied, 396
U. S.
927; Graves v. United States, 10 Cir. 1951, [51-2 USTC ¶9431]
191 F. 2d 579, 582; cf. Marcus v.
United States
, supra at 755. See also United States v. Kolsky, 5 Cir.
1970, 423 F. 2d 1111, 1113; United States v.
Rob
ertson, 5 Cir. 1969, 417 F. 2d 873, 875-76; Hale v. United
States, 5 Cir. 1969, 410 F. 2d 147, 149, cert. denied, 396
U. S.
902.
The
judgment as to Ruby J. Wilson is Affirmed. The appeal of Ray F.
Wilson is Dismissed.
*
Rule 18, 5 Cir. See Isbell Enterprises, Inc. v. Citizens Casualty Co.
of
New York
, et al., 5 Cir. 1970, 431 F. 2d 409, Part I.
1
Section 7201 provides:
Any
person who willfully attempts in any manner to evade or defeat any tax
imposed by this title or the payment thereof shall, in addition to other
penalties provided by law, be guilty of a felony and, upon conviction
thereof, shall be fined not more than $10,000, or imprisoned not more
than 5 years, or both, together with the costs of prosecution.
Section
7206 provides in pertinent part:
Any
person who--
(1)
. . . Willfully makes and subscribes any return, statement, or other
document, which contains or is verified by a written declaration that it
is made under the penalties of perjury, and which he does not believe to
be true and correct as to every material matter . . .
shall
be guilty of a felony and, upon conviction thereof, shall be fined not
more than $5,000, or imprisoned not more than 3 years, or both, together
with the costs of prosecution.
[88-1
USTC ¶9283]
United States of America
, Plaintiff-Appellee v. Glenn M. Wade, Defendant-Appellant
(CA-9),
U.S. Court of Appeals, 9th Circuit, 87-3035, 3/9/88, Affirming an
unreported District Court decision
[Code Sec.
7203 --Result unchanged by the Tax Reform Act of 1986 ]
Criminal penalties: Failure to file return: Appeal, timeliness.--Although
the taxpayer's notice of appeal of his conviction for failure to file
income tax returns was premature, it was a mere technical irregularity
that was to be disregarded because it was an error that did not affect
substantive rights. The taxpayer filed his notice of appeal after the
jury verdict but before the judgment and sentence had been entered.
Mark
R. Davis, Assistant United States Attorney,
Anchorage
,
Alas.
99513
, for plaintiff-appellee. Glenn M. Wade, Boron,
Calif.
, pro se.
Before
BROWNING, Chief Judge, NORRIS and O'SCANNLAIN, Circuit Judges.
OPINION
Per
Curiam"
EC:
Wade appeals pro se his conviction on three counts of willful failure to
file income tax returns in violation of 26 U.S.C. §7203
. Wade filed his notice of appeal on April 13, 1987--after
the jury verdict (4/3/87), but before entry of the final judgment and
sentence (5/7/87). No new notice was filed after sentencing. The
government challenges Wade's appeal as untimely under Fed. R. App. P.
4(b).
Rule
4(b) requires that "[i]n a criminal case the notice of appeal by a
defendant shall be filed in the district court within 10 days after the
entry of the judgment or order appealed from." Final judgment in a
criminal case means the sentence. Berman v.
United States
, 302
U.S.
211, 212-213 (1937). Although Wade's notice of appeal was premature, we
agree with the Third, Seventh, and Eleventh Circuits that a notice of
appeal filed after a verdict but before sentencing ripens into an
appealable order when the judgment of sentence is entered. United
States v. Hashagan, 816 F.2d 899 (3rd Cir. 1987) (en banc); United
States v. Curry, 760 F.2d 1079 (11th Cir. 1985); United States v.
Moore, 616 F.2d 1030 (7th Cir. 1980). Following these circuits, we
hold that premature notice under the circumstances of this case is a
mere technical irregularity governed by the requirement of Fed. R. App.
P. 52(a) that: "Any error, defect or irregularity or variance which
does not affect substantive rights shall be disregarded."
As
the other circuits have noted, our holding accords with the Supreme
Court's reasoning in Lemke v. United States, 346 U.S. 325 (1953),
in which the Court upheld the validity of a notice of appeal filed after
sentencing but before the formal entry of judgment. Construing the
requirements of Rule 4(b) in light of its purpose to prevent prejudice
from prematurity, the Court found the premature filing to be harmless
error under Rule 52(a) because it provided full notice of the judgment
challenged.
Id.
at 326. As in Lemke, Wade's notice of appeal was on file when
formal judgment was entered and "gave full notice after that date,
as well as before, of the sentence and judgment which [defendant]
challenged."
Id.
Our
holding does not conflict with the Supreme Court's recent decision in Acosta
v. Louisiana Department of Health and Human Resources, 106 S.Ct.
2876 (1986) in which the Court strictly construed the language of Rule
4(a)(4) and found ineffectual a notice of appeal in a civil case filed
after the announcement of a decision on a Rule 59 motion but before the
order denying the motion was filed. The Court's decision rested entirely
on its reading of the specific language of Rule 4(a)(4) which explicitly
mandates that "[a] notice of appeal filed before disposition of [a
Rule 59 motion] shall have no effect." No such language appears in
Rule 4(b) at issue in this case.
On
the merits, we AFFIRM Wade's conviction for the reasons stated in an
unpublished memorandum disposition filed herewith.
[61-1
USTC ¶9105]
Rob
ert E. Funkhouser, Appellant v.
United States of America
, Appellee
(CA-4),
U. S. Court of Appeals, 4th Circuit, No. 8094, 9/7/60, Vacating and
remanding an unreported District Court order
[1939 Code Sec. 145(b) and corresponding 1954 Code Sec. 7201]
Tax evasion: Timeliness of appeal: Factual issue on appeal.--The
factual issue of whether the taxpayer, as a criminal defendant in a tax
evasion trial, had given sufficient notice of appeal by addressing a
letter to the trial judge cannot be decided on appeal when first raised
on brief. The cause was therefore remanded for further proceeding.
Rob
ert E. Funkhouser, Pro Se.
Rob
ert E. Cahill, Assistant United States Attorney, Post Office Bldg.,
Baltimore, Md. (Leon H. A. Pierson, United States Attorney, Post Office
Bldg., Baltimore, Md. on brief) for appellee.
Before
SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and CHARLES F. PAUL,
District Judge.
PER
CURIAM:
The
instant appeal in a post-conviction proceeding, the second prought here
by
Rob
ert E. Funkhouser, is the latest step of a number taken by him to
"correct an illegal sentence." The sentance, imposed on June
6, 1952, following his conviction of income tax evasion in the years
1943 to 1947 inclusive, was imprisonment for one year and a fine of
$25,000. 1 Funkhouser's
chief claim, both in the District Court and here, is that he was
illegally deprived of his right of appeal. He insists that he gave
notice of appeal within the ten day period provided by law.
An
unusual feature of the defendant's present effort is that he presented,
for the first time, as an appendix to his brief in this Court, an
unauthenticated photostatic copy of a previously undisclosed letter
which he claims to have sent Judge W. Calvin Chesnut, who presided at
his trial and passed sentence upon him. The letter bears date of June 6,
1952, the very day of the sentence, and, according to the defendant, was
a timely notice of appeal which the Judge should have filed in the
Clerk's office among the papers of the case, but which the defendant
claims the Judge mailed back to the defendant's wife.
Since
submitting its additional brief the Government now calls our attention
to the discovery of a letter in Judge Chesnut's file which is dated June
6, 1952, but its text is entirely different from that of the photostat
bearing the same date, which the defendant submitted. The Government
contends that while this newly discovered letter does not sustain the
theory which it has heretofore advanced, the letter does in fact
completely refute the defendant's contention and shows the photostat
submitted by the defendant to be spurious.
The
issue which has now developed between the parties is not one we should
attempt to decide upon documents not in the record and explanations
unsupported by sworn testimony. "It is not appropriate to make the
initial tender of factual issues in the Court of Appeals." Holly
v. Smyth, F. 2d (4th Cir., 1960). In the circumstances we vacate the
order and remand the case to the District Court for the reception of
evidence from both parties upon the above issue and others raised by the
defendant. The District Judge should then make specific findings of fact
and conclusions of law upon all such issues.
Order
vacated and case remanded for further proceedings.
1
It is not free from doubt under United States v. Morgan, 346 U.
S. 502 (1952), whether, the prison term having been served, the sentence
is now open to attack; but it would seem at least that the fine, if
illegal, might be restored. At all events the U. S. Attorney makes no
point of this.
[60-1
USTC ¶9476]Oral J. Wilkinson, Appellant v.
United States of America
, Appellee
(CA-10),
U. S. Court of Appeals, 10th Circuit, No. 6338, 278 F2d 604, 4/16/60,
Appeal from an unreported District Court decision
[1954 Code Sec. 7201]
Appeals: Timeliness: Income tax evasion: Mandatory time:
Jurisdictional question: Notification of entry of judgment.--The
mailing of a certified copy of a judgment convicting taxpayer of income
tax evasion did not extend the time to file an appeal, the requirement
that the appeal be filed within 10 days after entry of judgment being
mandatory and jurisdictional.
David
K. Watkiss, 721 Continental Bank Building,
Salt Lake City
,
Utah
(Calvin L. Rampton, 721 Continental Bank Building,
Salt Lake City
,
Utah
, with him on brief), for appellant. William J. Adams, Assistant United
States Attorney, Salt Lake City, Utah (A. Pratt Kesler, United States
Attorney, Salt Lake City, Utah, with him on brief), for appellee.
Before
PICKETT and BREITENSTEIN, Circuit Judges, and SAVAGE, District Judge.
PER
CURIAM:
The
United States
moves to dismiss this appeal upon the ground that the notice of appeal
was not filed within time. The defendant Wilkinson, after having been
found guilty of income tax evasion in violation of Title 26, §145(b),
(I. R. C. 1939), and Title 26, §7201, (I. R. C. 1954), appeared before
the United States District Court for the District of Utah for sentencing
on January 4, 1960 and was sentenced to serve a term of 6 months and to
pay total fines of $15,000. On January 6, 1960 the judgment and
commitment was filed with the Clerk of the aforesaid court and was
entered upon the docket January 7, 1960. A certified copy thereof was
mailed to the attorney for the defendant and received in his office
sometime during the work week of January 11-15, 1960. On January 21,
1960 notice of appeal was filed.
[Time
to Appeal]
Rule
37(a)(2) of the Federal Rules of Criminal Procedure provides that a
defendant may take an appeal within 10 days after entry of a judgment or
order appealed from. It is conceded that the notice of appeal was not
filed within 10 days from either the pronouncement of the sentence from
the bench or from the formal entry of the judgment upon the docket. The
law is well settled that the taking of an appeal within the prescribed
time is mandatory and jurisdictional. 1
United States
v.
Rob
inson, 361
U. S.
220; Martin v.
United States
, 10 Cir., 263 F. 2d 516; Lujan v.
United States
, 10 Cir., 204 F. 2d 171; Swithart v.
United States
, 10 Cir., 169 F. 2d 808.
["Entry
of Judgment"]
Defendant
contends the phrase "entry of the judgment," contained in Rule
37, refers to the actual entry on the docket in the clerk's office, but
he also urges that the time for appeal does not being to run until the
defendant has actual or constructive knowledge of the entry. The
requirement that the defendant have knowledge is said to arise from the
district court's procedural custom of mailing copies of formal judgments
to defense attorneys. We hold that the running of the 10-day period for
filing the notice of appeal is not delayed until the defendant is
notified of the entry of the judgment in the clerk's records. The
mailing of a copy of the judgment is not required by the rules, 2 and if the
district judge requires such mailing, it is for the convenience of
defendants and their attorneys. The
Rob
inson case holds that a district judge is without jurisdiction to
extend the statutory time for appeal. That case is controlling here.
Motion
sustained.
1
A notice of appeal filed out of time confers no jurisdiction on the
appellate court.
2
Rule 49(c), Fed. Rules Crim. Proc., provides that upon the entry of an
order made upon written motion after arraignment, the clerk shall
immediately mail each affected party notice thereof. The rule does not
require notice of the entry of a judgment and sentence.
[61-2
USTC ¶9504]H. A. Lott et al., Petitioners v.
United States
Supreme
Court of the United States, No. 238, 367 US 421, 81 SCt 1563, 6/12/61,
Rev'g and rem'g CA-5, 60-2 USTC ¶9542, 280 F. 2d 24
On Writ of Certiorari to the United States Court of Appeals for the
Fifth Circuit.
[Title 18,
U. S.
C., Rules of Criminal Procedure 34 and 37(a)(2); 1954 Code Sec. 7201]
Criminal evasion: Timeliness of appeal: Plea of nolo contendere:
Motion to arrest judgment.--An appeal from a judgment of conviction
and sentence was timely filed when the notice of appeal was filed within
10 days after the denial of a motion in arrest of judgment even though
the notice was not filed within 10 days after the date on which oral
judgment and sentence were pronounced or within 10 days after the date
on which formal judgment was signed and filed. A plea of nolo
contendere, tendered and accepted by the trial court some 3 months
earlier, was not such a "determination of guilt" as to make
the motion in arrest of judgment untimely under Rule 34. The judgment of
conviction and sentence, not the tender and acceptance of the plea of nolo
contendere, constitutes the "determination of guilt" under
Rule 34, and the motion in arrest of judgment was filed within 5 days
after both the oral and formal judgments were made.
Four
dissents.
John
H. Crooker and Joe S. Moss, Bank of the Southwest Bldg., and Denman
Moody, Esperson Bldg., Houston, Tex., for petitioner. Archibald Cox,
Solicitor General, Louis F. Oberdorfer, Assistant Attorney General,
Bruce J. Terris, Assistant to the Solicitor General, Meyer Rothwacks,
and Richard B. Buhrman, Department of Justice, Washington 25, D. C., for
respondent.
Mr.
Justice WHITTAKER delivered the opinion of the Court:
This
case is concerned with the timeliness of an appeal from a judgment of
conviction and sentence in a criminal case under Rule 37(a)(2) of the
Federal Rules of Criminal Procedure. 1
These
three petitioners having been jointly indicted, with two others, on five
counts in the United States District Court for the Southern District of
Texas for willfully attempting and conspiring to evade the federal
income taxes of their corporate employer, 2
entered, and the court accepted, pleas of nolo contendere on
March 17, 1959. But the court decided that pronouncement of its judgment
should await conclusion of the impending jury trial of the other two
defendants. 3
Soon after the conclusion of that rather protracted trial, the court, on
June 19, 1959, orally pronounced its judgment convicting petitioners and
sentencing them to imprisonment. 4
Three days later, on June 22, formal judgment was prepared, signed by
the judge and filed with the clerk. The next day, June 23, petitioners
filed their separate "motion[s] in arrest of judgment." 5
These motions were denied on July 13. Two days later, on July 15,
petitioners filed their separate notices of appeal from the judgment to
the United States Court of Appeals for the Fifth Circuit. 6
[CA-5
Dismissed Appeals]
On
the Government's motion, that court dismissed the appeals as untimely
under Rule 37(a)(2). 280 F. 2d 24. It held, in effect, that, although
there is no such express limitation in the Rules, the provisions of Rule
34 7
impliedly modify and limit the provisions of Rule 37(a)(2). And it
concluded that, although "motion[s] . . . in arrest of
judgment" had, in fact, "been made within the 10-day
period" after entry of the judgment appealed from (Rule 37(a)(2)),
it cannot be so regarded under these Rules because the tender by
petitioners and acceptance by the court of the pleas of nolo
contendere on March 17 constituted the "determination of
[their] guilt," and, inasmuch as the motions in arrest were not
made "within 5 days after [that] determination of guilt"
as required by Rule 34, it followed that, to be timely under Rule
37(a)(2), the appeals had to "be taken within 10 days after entry
of the judgment or order appealed from" (Rule 37(a)(2)), or by June
30 or July 2--depending upon whether it was the oral pronouncement of
June 19 or the formal entry of June 22 that constituted the
judgment--and not "within 10 days after entry of the order denying
the motion." (Rule 37(a)(2).) 280 F. 2d, at 27-28. Because of a
conflict between the circuits upon the question presented 8
and of its importance to the proper
admin
istration of the criminal Rules, we granted certiorari. 364
U. S.
813.
[Opposing
Arguments]
Buttressed
by Lujan v. United States, 204 F. 2d 171 (C. A. 10th Cir.), and Smith
v. United States, 273 F. 2d 462 (C. A. 10th Cir.), holding, on
similar facts, that Rule 37(a)(2) alone and unaffected by any other Rule
prescribes the time within which an appeal must be taken to a Court of
Appeals in a criminal case, and further buttressed by their belief that
this Court, too, so held, even if sub silentio, in exercising
jurisdiction, under facts virtually identical to those here, in Sullivan
v. United States [54-2 USTC ¶9716], 348 U. S. 170, petitioners
point to the facts that Rule 37(a)(2) is captioned "Time for
Taking Appeal"; that it is the only Rule that purports to deal
with the subject; that it does not speak of motions filed within five
days, nor after "verdict or finding of guilty" (Rule 33), nor
after "determination of guilt" (Rule 34)--whatever that term
may mean--and makes no reference to timeliness, under any other Rule, of
the motions of which it speaks, but that it simply says in plain and
unmistakable language that "An appeal by a defendant may be taken
within 10 days after entry of the judgment or order appealed from, but
if a motion . . . 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." Then, after
pointing to the admitted fact that their motions in arrest were
"made within the 10-day period"--actually within three
days--after entry of the judgment appealed from, and that they appealed
on the second day after their motions were denied, petitioners
strenuously insist that their appeals were timely. They contend that to
hold their appeals to have been untimely, in these circumstances, would
be to mutilate the plain language of Rule 37(a)(2) and to make of it a
trap even for the wary--including their experienced and competent
counsel who were doing their best to protect petitioners' rights of
appeal. And they insist that such a snare should not be permitted to
deprive one of the valuable right of an appeal upon which his liberty,
or even his life, may well depend.
[Not
Necessary to Reconcile Rules]
Though
we are impressed by this demonstration and argument, as also by the
legalisms of the Government's countervailing argument, and although
recognizing, as we do, the obscurity, if not inconsistency, in these
Rules that has been exposed by this case, we need not here decide
whether Rules 33 and 34 modify Rule 37(a)(2) so as to limit the time
which it specifies for the taking of an appeal--but may and should leave
that problem and its kindred ones, brought to the fore in this case, for
resolution by the rule-making process, 9
United States v.
Rob
inson, 361 U. S. 220--for we have concluded that it was the judgment
of conviction and sentence, not the tender and acceptance of the pleas
of nolo contendere, that constituted the "determination of
guilt" within the meaning of Rule 34. And, inasmuch as the motions
in arrest were "made within 5 days after [that] determination of
guilt," as required by Rule 34, and thus, in any view, were also
"made within the 10-day period" after entry of the judgment
appealed from, as required by Rule 37(a)(2), the appeal, taken
"within 10 days after entry of the order denying the motion,"
was timely.
[Effect
of Plea of Nolo Contendere]
Although
it is said that a plea of nolo contendere means literally "I
do not contest it." Piassick v. United States, 253 F. 2d
658, 661, and "is a mere statement of unwillingness to contest and
no more," Mickler v. Fahs [57-1 USTC ¶9598], 243 F. 2d 515,
517, it does admit "every essential element of the offense [that
is] well pleaded in the charge."
United States
v. Lair, 195 F. 47, 52 (C. A. 8th Cir.). Cf.
United States
v.
Frankfort
Distilleries, 324
U. S.
293, 296. Hence, it is tantamount to "an admission of guilt for the
purposes of the case," Hudson v. United States, 272 U. S.
451, 455, and "nothing is left but to render judgment, for the
obvious reason that in the face of the plea no issue of fact exists, and
none can be made while the plea remains of record," United
States v. Norris, 281 U. S. 619, 623. Yet the plea itself does not
constitute a conviction nor hence a "determination of guilt."
It is only a confession of the well-pleaded facts in the charge. It does
not dispose of the case. It is still up to the court "to render
judgment" thereon. United States v. Norris, supra, at 623.
At any time before sentence is imposed--i. e., before the
pronouncement of judgment--the plea may be withdrawn, with the consent
of the court. Rule 32(d), Fed. Rules Crim. Proc. Necessarily, then, it
is the judgment of the court--not the plea--that constitutes the
"determination of guilt." Apart from the opinion below, we
have not been cited to any case, and have found none, that holds or even
intimates the contrary.
[Defendants'
Other Contentions Not Considered]
In
view of this disposition of the jurisdictional question, we need not
decide petitioners' alternative contentions that their motions in arrest
should be treated as motions under Rule 12(b)(2) of the Federal Rules of
Criminal Procedure (see Finn v. United States, 256 F. 2d 304, 306
(C. A. 4th Cir.); Hotch v. United States, 208 F. 2d 244, 250 (C.
A. 9th Cir.); United States v. Holmes, 110 F. Supp. 233, 234 (D.
C. S. D. Tex.)), or as motions to vacate sentences under 28 U. S. C.
§2255 (see Marteney v. United States, 216 F. 2d 760 (C. A. 10th
Cir.); Finn v. United States, supra).
The
judgment is reversed and the cause is remanded to the Court of Appeals
for further proceedings not inconsistent with this opinion.
Reversed
and remanded.
1
"Rule
37
"TAKING APPEAL; AND PETITION FOR WRIT OF CERTIORARI
"(a)
Taking Appeal to a Court of Appeals.
.
. .
"(2)
Time for Taking Appeal. 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. . .
."
2
The corporate employer and taxpayer was Farnsworth & Chambers Co.,
Inc. Petitioners were employee-officers of that corporation, and
collectively owned approximately 7 percent of its issued and outstanding
capital stock. The first four counts of the indictment charged willful
attempt to evade the corporation's income taxes for the years 1951,
1952, 1953 and 1954, respectively, and the fifth count charged a
conspiracy to commit the four substantive offenses charged.
3
The two codefendants who stood trial were Richard A. Farnsworth, Sr.,
and his son. They owned a major part of the corporation's capital stock.
Their trial, which began on April 6, 1959, and continued through June 9,
resulted in a verdict of acquittal of the son on all counts, and a
failure of the jury to agree on any of the counts as to the father.
4
Petitioners were sentenced to imprisonment--Blocker for three years,
Lott and Frazier for two years, on each count, the sentences to run
concurrently, and each was fined $20,000.
5
Each of the motions in arrest prayed, inter alia, "that the
judgment and sentence . . . be arrested and set aside, that the
indictment . . . be dismissed, and that [there] be granted such other
relief as justice may demand."
6
Actually, only Lott appealed on July 15. Blocker and Frazier appealed
two days later, on July 17.
7
"Rule 34. Arrest of Judgment.
"The
court shall arrest judgment if the indictment or information does not
charge an offense or if the court was without jurisdiction of the
offense charged. The motion in arrest of judgment shall be made within 5
days after determination of guilt or within such further time as the
court may fix during the 5-day period."
8
In accord with the decision below is United States v. Bertone,
249 F. 2d 156 (C. A. 3d Cir.). And see O'Neal v. United States,
264 F. 2d 809 (C. A. 5th Cir.); Drown v. United States, 198 F. 2d
999 (C. A. 9th Cir.); Godwin v. United States, 185 F. 2d 41 (C.
A. 8th Cir.). To the contrary are Lujan v. United States, 204 F.
2d 171 (C. A. 10th Cir.); Smith v. United States, 273 F. 2d 462
(C. A. 10th Cir.); and see Sullivan v. United States [54-1 USTC
¶9333], 212 F. 2d 125 (C. A. 10th Cir.), affirmed [54-2 USTC ¶9716],
348
U. S.
170.
9
In light of the confusion that has arisen under these Rules, as exposed
by this case, it is hoped that those who advise the Court with respect
to the exercise of its rule-making powers--more particularly of course
the Judicial Conference of the United States (28 U. S. C. §331) and the
Advisory Committee on Federal Rules of Criminal Procedure--will give
these problems their early attention.
[Dissenting
Opinion]
Mr.
Justice CLARK, with whom Mr. Justice FRANKFURTER, Mr. Justice HARLAN and
Mr. Justice STEWART join, dissenting:
The
Court characterizes "determination of guilt," as used in Rule
34, 1
by the significant phrase, "whatever that term may mean." It
then finds that the acceptance of a nolo contendere plea is not
such a determination. I submit that this Court has held that acceptance
of such a plea is a "determination of guilt," and that today's
decision is not only contrary to prior cases, but is also out of tune
with the long-accepted practice of both federal and state courts.
Believing that it will result in such confusion as to the requirements
of our Rules that the
admin
istration of criminal justice will be adversely affected, I must
respectfully dissent.
At
the time petitioners Blocker and Frazier offered their pleas (March 17),
the Government objected to their acceptance by the court, as it did when
Lott offered his (March 20). The court heard counsel and warned the
parties of the seriousness of the charge, i. e., that the charge
was willful tax avoidance, that the plea was voluntarily made without
promises, and that the sentence might be five years' confinement in
addition to a large fine. After being assured by each of the parties
that he wished to enter his plea, the court accepted them. Orders were
entered in the minutes of the court as to each defendant, accepting the
pleas and directing that a "pre-sentence investigation" be
undertaken "for sentence at conclusion of entire case." The
delay as to sentence was occasioned by the awaited trial of two
additional defendants who had pleaded not guilty. The record shows that
on June 19, after that trial was concluded (one defendant being
acquitted and the other having a hung jury), petitioners appeared in
court "on the criminal action docket for sentence . .
.." (Italics added.) The court, in addressing the parties, said,
"[a]ll three of you have entered a plea of nolo contendere,
and that is equivalent to a plea of guilty." (Italics
added.) Neither counsel nor the parties made any comment on this
characterization of their pleas. Thereafter, petitioners and their
counsel made statements in mitigation, after which sentence was
pronounced. At no time were any motions made for permission to withdraw
the pleas. On June 22, the formal judgments and commitments on the
sentences were entered and each petitioner filed a motion in arrest of
judgment on the next day. It is these motions that the Court of Appeals
held should have been filed within five days of the acceptance of the
pleas of nolo contendere in March. The Court, however, holds that
the crucial date on which the "determination of guilt" was
made was the day of the judgment of conviction and sentence. 2
Since the motions in arrest came within five days thereafter, the Court
says they were timely under Rule 34, as were the appeals that followed,
under Rule 37(a)(2). 3
Rule
II(2) of the Criminal Appeals Rules, 1933, 292
U. S.
661, the predecessor of present Rule 34, stated that "motions in
arrest of judgment shall be made within three days after verdict or
finding of guilt." Certainly "verdict" referred to a jury
verdict of guilt. A plea of guilty has always been considered the
equivalent of a jury finding of guilty. See
United States
v. Norris, 281
U. S.
619 (1930);
United States
v.
Bradford
, 194 F. 2d 197. The same is true of a plea of nolo contendere.
Our cases have long and consistently held that it, "like a plea of
guilty, is an admission of guilt for the purposes of the case." Hudson
v.
United States
, 272
U. S.
451, 455 (1926). As this Court said in
United States
v. Norris, supra, after its entry, "the plea of nolo
contendere upon that question [of guilt or innocence] and for that
case, was as conclusive as a plea of guilty would have been. The court
was no longer concerned with the question of guilt, but only with the character
and extent of the punishment. The remedy of the accused . . . was to
withdraw, by leave of court, the plea of nolo contendere . .
.." At p. 623. (Italics added.)
Rule
34, the successor to Rule II(2), is likewise clear and unambiguous--it
says the motion must be filed within five days of "determination of
guilt," not the time of judgment or sentence. The Court today,
however, rewrites the Rule by holding that the judgment date is the
controlling one. "[I]t is the judgment of the court . . . that
constitutes the 'determination of guilt.'" Ante, p. --. It
has, however, long been recognized that determination of guilt and entry
of judgment are disparate.
United States
v. Norris, supra; Fed. Rules Crim. Proc., 32(b). If the framers
of the Rules had intended to have the time for filing the motion in
arrest run from the date of judgment, they would have said so. Instead
they said that Rule 34 "continues existing law except that
it enlarges the time for making motions in arrest of judgment from 3
days to 5 days. See Rule II(2) of Criminal Appeals Rules of 1933, 292 U.
S. 661." 4
(Italics added.) "Existing law" did not allow motions in
arrest unless made within three days of "verdict or finding of
guilt."
The
majority notes petitioner's argument that Sullivan v. United States
[54-2 USTC ¶9716], 348
U. S.
170 (1954), supports today's decision "even if sub
silentio." With due deference, I say it does not. No question
of jurisdiction was raised or considered in that case, either in the
Court of Appeals or in this Court. 5
The case dealt solely with the merits of motions to dismiss and to
withdraw a plea of nolo contendere under Rule 32(d) after
sentence.
[Nolo
Contendere v. Guilty Plea or Jury Verdict]
The
Court attempts to bolster its decision by noting that a noto
contendere plea "does not constitute a conviction," that
it "does not dispose of the case" and that "[i]t is still
up to the court 'to render judgment' thereon." However, these
statements are just as true when a guilty plea is accepted or the jury
returns a verdict of guilty. They certainly were equally true under
former Rule II(2). The judgment sentencing and committing the defendant
in each of these instances would still have to be entered. In actual
practice, then, nothing more is left to be done by the court after
accepting a nolo contendere plea than is necessary after
accepting a guilty plea or after a jury returns a verdict of guilty. In
each of the three situations, guilt has been determined upon the
acceptance by the court of the, 5/29/61. jury. In each case, motions to
withdraw the pleas or to set aside the verdict may be made, and might be
granted, but their availability does not alter the fact that, until any
such motion is granted, there has been a determination of guilt
It
appears rather unseemly to me for the Court to enlarge, through judicial
decision, the time for filing motions in arrest and, in consequence,
that for taking an appeal. Only last Term, we said in United States
v.
Rob
inson, 361 U. S. 220, 229 (1960), that this should be effected
"through the rulemaking process . . ." As was pointed out
there, Rule 45(b) specifically provides that "the court may not
enlarge the period for taking any action under Rules 33, 34 and 35,
except as otherwise provided in those rules, or the period for taking an
appeal." The Court has, by today's opinion, enlarged the time
provided in these Rules, contrary to their express provision, contrary
to our prior cases, and contrary to the long-established practice at the
Bar. In so doing, it places these Rules in a state of utter confusion,
and must thereby surely drive the Bar and the trial courts to procedural
distraction. I would affirm.
1
Rule 34 states in pertinent part that "[t]he motion in arrest of
judgment shall be made within 5 days after determination of guilt or
within such further time as the Court may fix during the 5-day
period."
2
Whether this date is June 19, when the court orally pronounced sentence,
or June 22, when the court formally entered judgments and commitments,
is not made clear for under the Court's rationale, these appeals would
be timely if either date were considered that of the "determination
of guilt."
3
While the Court does not place its decision solely on the language of
Rule 37(a)(2), it is well to note that under that Rule an appeal must be
taken "within ten days after entry of the judgment." If,
however, a motion "in arrest of judgment has been made within the
ten day period" the appeal period is tolled until the motion is
overruled. Petitioners argue that since their motions in arrest were
filed within the "ten day period" subsequent to judgment and
were not overruled until July 13, their appeals (filed July 17) are
timely. I assume that the Court considers this contention--making Rule
34 mere surplusage--entirely untenable since it specifically refuses to
pass upon it.
4
S. Doc. No. 175, 79th Cong., 2d Sess. 56.
5
Petitioner's plea of nolo contendere was entered on April 8 and
immediately accepted by the court. His motion in arrest of judgment was
filed on May 29 and denied on June 23. The District Court gave no reason
for its denial. The appeal was filed June 23.
[57-2
USTC ¶10,046]Solomon P. Rosenbloom, also known as Sol. Rosenbloom,
Petitioner v. United States of America
Supreme
Court of the
United States
, No. 451. October Term 1957, 355 US 80, 78 SCt 202, 11/25/57, Granting
petition for certiorari and reversing and remanding U. S. Court of
Appeals, 8th Circuit, 57-2 USTC ¶9927
[1954 Code Secs. 7201-7203--similar to 1939 Code Sec. 145]
Tax evasion: Timeliness of appeal.--An appeal from a judgment of
conviction of tax evasion was timely where it was conceded that the
clerk of the District Court did not send a notice of the entry of the
order denying the taxpayer's motion for a new trial and judgment of
acquittal. The record did not establish with certainty that the taxpayer
or his attorney had actual notice of the entry of that order. Two
dissents.
Solomon
P. Rosenbloom, Pro se, and Israel Treiman, 1955 Railway Exchange Bldg.,
St. Louis, Mo., for petitioner. J. Lee Rankin, Solicitor General,
Charles K. Rice, Assistant Attorney General, Joseph F. Goetten and
Richard B. Buhrman, Attorneys, Dept. of Justice, for respondent.
PER
CURIAM:
The
petition for a writ of certiorari is granted. The Court of Appeals has
held, without opinion, that petitioner's notice of appeal from the
District Court, filed on July 8, 1957, was untimely. The government has
conceded that the clerk of the District Court did not mail to petitioner
or his attorney a notice of the entry of the order of June 14 denying
petitioner's motion for a new trial and judgment of acquittal, as
required by Rule 49(c), Federal Rules of Criminal Procedure. In our
opinion the record in this case fails to show with sufficient certainty
that petitioner or his attorney had actual notice of the entry of that
order by reason of the proceedings which took place in the District
Court on June 14. * Cf. Huff
v.
United States
, 192 Fed. (2d) 911; Gonzales v.
United States
, 233 Fed. (2d) 825, 827, reversed on other grounds, 352
U. S.
978. What transpired at these proceedings is too ambiguous to permit the
conclusion that petitioner and his attorney were not justified in
believing that petitioner's time to appeal would begin to run on July 8.
In these circumstances we think that the Court of Appeals erred in
holding that petitioner's notice of appeal was untimely. Rule 37(A)(2),
Fed. Rules Crim. Proc.; see Carter v. United States, 168 Fed.
(2d) 310. The judgment of the Court of Appeals is reversed and the case
is remanded to that court for further proceedings consistent with this
opinion.
[Dissent]
MR.
JUSTICE BURTON, with whom MR. JUSTICE CLARK concurs, dissenting.
Petitioner
was present in open court with his attorney at the time the court
overruled his motion for a new trial. He thus had actual notice of the
denial of his motion and was not entitled to rely upon an additional
notice in writing from the clerk to the same effect. The colloquy quoted
by the court took place later, "after calling other motions in
other cases." At that time this case "was again called by the
judge and the proceedings as indicated in the transcript of the official
court reporter took place." Especially in the light of the time
interval between the denial of the motion and the colloquy quoted in the
opinion, I believe the Court of Appeals was justified in concluding that
petitioner's counsel should have understood that his motion had been
denied on June 14.
*
The record shows the following:
"The
Court . . .
"Do
you want some time for your client before he turns in?
"Mr.
Shaw. Your Honor, I was going to ask for some time in which to get his
affairs straightened out, and within which to file an appeal, should we
so desire to do.
"The
Court. Very well. If you file an appeal, of course, if you apply for
bond, I will tell you now that I will grant you bond. Be permitted to go
under the bond you are under now. How much time do you want?
"Mr.
Shaw. About two weeks, your Honor,
"The
Court. How about Monday, July 1st, or do you want it the 8th, the
following Monday?
"Mr.
Shaw. That will be all right.
"The
Court. Be given until July 8th.
"Mr.
Shaw. Thank you.