United States v. Jae Gab Kim, United States of America v. John Edward Stoll

317 F.3d 917, 2003 Daily Journal DAR 1383, 2003 Cal. Daily Op. Serv. 1097, 2003 U.S. App. LEXIS 1844

Opinion

ORDER

The opinion filed on August 5, 2002 is amended as follows:

Slip Opinion, p. 11152, ¶ 3, Eliminate the entire paragraph

and replace as follows: We do note that the Rules say that they “do not extend or limit the jurisdiction of the courts of appeals.” Fed. R.App. P. 1(b). 1 We also note that, although we have said in dicta that § 3731 was not jurisdictional, United States v. Humphries, 636 F.2d 1172, 1177 (9th Cir.1980), we are not bound by this dicta and now agree with the Tenth Circuit that the statute is jurisdictional, United States v. Sasser, 971 F.2d 470, 473 (10th Cir.1972). Although the Sasser court went on to find a conflict between Rule 4(b) and § 3731, the conflict asserted here is a different one. We are reluctant to read the Rules, carefully crafted as they are, to have made an illegal expansion of our jurisdiction. Rather, we read Fed. R.App. P. 4(b)(l)(B)(i) to make precise the meaning in this context of “rendered” in § 3731. We hold that, in the light of the Rule, a judgment is rendered when there is entry of the judgment on the docket. Accordingly, the government’s appeals in these two cases were timely.

1 . We also note that Fed. R.App. P. 1(b) has been abrogated effective December 1, 2002. See Order of April 29, 2002, 122 S.Ct. No. 18, Ct.R-648 (2002).