United States v. Podolsky

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1284



                    UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                        STEPHEN PODOLSKY,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



          [Hon. Richard G. Stearns, U.S. District Judge]


Before



                      Selya, Circuit Judge,

                                

                 Bownes, Senior Circuit Judge,

                                

                   and Stahl, Circuit Judge.


Michael J. Traft, with whom Janice Bassil and Carney & Bassilwere on brief, for appellant.

     Jennifer Zacks, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief, for the

United States.


October 8, 1998


SELYA, Circuit Judge.  Horace Greeley, who commonly is

thought to have originated the hortatory phrase "Go west, young

man, go west," recognized that travel can provide a gateway to fame

and fortune.  Here, however, inordinately extensive travel proved

too much of a good thing for Dr. Stephen Podolsky.  In the end,

Podolsky's appeal turns not on his peripatetic exploits, but on the

barest procedural question.  Resolving that question, we conclude

that Podolsky, for the most part, did not challenge the district

court's rulings in a timely fashion.  On the lone issue that is

properly before us, his appeal lacks merit.

I.  BACKGROUND

     Podolsky ran afoul of the law after he planned,

orchestrated, and executed an elaborate airline ticket ruse.  The

scheme operated substantially as follows.  Podolsky would purchase

a "conjunction" ticket in his own name or that of a family member. 

Such tickets route the traveler through four or more legs from the

start of a journey to the final destination.  Airlines package

these tickets in at least two separate booklets, each with a cover

page listing the itinerary and fare for the entire trip.  Podolsky

would split the ticket packages to make each of them appear to be

a complete conjunction ticket.  He then would take each faux ticket

(actually a partial ticket) to an airline facility (often using

different ticket offices of different airlines in different cities)

and secure a refund for the full value of the original ticket.  As

a variation, Podolsky sometimes would exchange the faux ticket for

a new (authentic) conjunction ticket and would use the new ticket

to restart the process.  Although the parties' estimates of the

losses that the airlines suffered differ substantially, Podolsky

concedes that he completed hundreds of thousands of dollars in

airline transactions in this fashion during the late 1980s and

early 1990s.

     The scheme came to light in the spring of 1993 and the

authorities thereafter recovered several hundred unused airline

tickets that were in Podolsky's possession.  Following a lengthy

investigation, a federal grand jury charged Podolsky with numerous

counts of mail and wire fraud.  See 18 U.S.C.  1341, 1343 (1994). 

Podolsky pled guilty to eleven counts.  At a disposition hearing

held on February 20, 1997, the district court departed downward in

response to evidence that Podolsky suffered from an obsessive-

compulsive disorder.  See USSG 5K2.13 (1997).  The court imposed

a 36-month term of probation and ordered Podolsky to pay a special

assessment of $550 and $77,623 in restitution (the latter amount to

be distributed among four airlines).

     The restitution figure represented the net difference

between credits and debits reflected on twelve credit card accounts

in Podolsky's name ($109,678), less the aggregate finance charges

reflected on those same account statements ($32,055).  Podolsky

apparently had other credit card accounts, but no records could be

obtained for them.  Thus, the district judge left open a window of

opportunity at sentencing, stating that the restitution order could

be remitted if (and to the extent that) Podolsky submitted to the

probation department additional factual evidence suggesting the

propriety of such an adjustment.  The judgment embodying the

sentence was entered on the court docket on March 20, 1997. 

Podolsky did not appeal.

     On August 26, 1997, Podolsky filed a motion for return of

property (Motion No. 1).  Invoking Fed. R. Crim. P. 41(e), this

motion sought recoupment of the unused airline tickets that he

earlier had provided to TWA and the FBI.  See supra note 2.  The

government interposed an objection and the court summarily denied

the motion on September 23, 1997.

     Apparently not realizing that Motion No. 1 already had

been decided, Podolsky filed a response to the government's

objection on October 17, 1997.  He simultaneously filed a motion

for review of restitution (Motion No. 2).  Upon learning the fate

of Motion No. 1, Podolsky's attorney wrote a letter dated November

3, 1997, requesting that the October 17 rejoinder be treated as a

motion for reconsideration.  The court did not grant the request,

nor was it obligated to do so.  See Massachusetts Sch. of Law v.

American Bar Ass'n, 142 F.3d 26, 45 n.16 (1st Cir. 1998)

(explaining that a letter that "does not appear in the docket . .

. cannot be construed as a motion" for purposes of testing a

party's compliance with the court's pretrial scheduling order); cf.Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 528 (1st Cir.

1991) (rejecting an appellant's assignment of error when the

appellant sought relief below only by means of an undocketed

letter).  The court did address Motion No. 2, however, denying it

in a footnote order dated February 11, 1998.  Podolsky filed his

notice of appeal on February 23, 1998.

II.  THE JURISDICTIONAL ISSUE

     The threshold issue in this appeal concerns the existence

vel non of appellate jurisdiction.  Because Podolsky's statement of

his claims is somewhat muddled, we consider several possibilities.

     1.  To the extent that Podolsky seeks to appeal the

judgment itself (including the order of restitution), his effort

fails because he did not notice his appeal until almost a year

after the district court entered the judgment.  A sentence imposing

an order of restitution is a final judgment, regardless of whether

the restitution later may be corrected, amended, or adjusted.  See18 U.S.C.  3664(o) (Supp. 1996).  A defendant in a federal

criminal case must appeal within ten days after the entry of the

final judgment or order, see Fed. R. App. P. 4(b), and Podolsky did

not do so.  Inasmuch as the obligation to notice an appeal within

the time prescribed by law is mandatory and jurisdictional, such a

failure of compliance typically results in a complete loss of

appeal rights.  See United States v. Morillo, 8 F.3d 864, 867 (1st

Cir. 1993).  So it is here.

     2.  Nor do the provisions of Fed. R. App. P. 4(b) redound

to Podolsky's benefit.  This rule provides in substance that the

timely filing of certain post-judgment motions in a criminal case

tolls the running of the appeal period, subject to a fresh start

after the resolution of the last such motion.  However, the motions

that Podolsky filed are not among those specifically identified in

the rule, and, thus, are not of the type or kind that normally

suffice to suspend the running of the appeal period.

     To be sure, some "[p]ost-judgment motions apart from

those expressly enumerated in Fed. R. App. P. 4(b) can have the

same suspensory effect."  Morillo, 8 F.3d at 867.  Yet, even

assuming arguendo that one of Podolsky's post-judgment motions was

of a suspensory character under the Morillo exception   and we see

no basis in the record for any such assumption   the end result

would be unaffected.  Suspensory motions only extend the appeal

period if timely filed, see id. at 869, and timeliness, in this

context, requires at a minimum filing within the appeal period. 

Podolsky's earliest motion was not filed until almost five months

after the entry of judgment against him.  To allow so belated a

motion to have suspensory effect would unreasonably expand the

narrow Morillo exception, thus threatening to engulf the rule and

undermine the finality of judgments.

     3.  To the extent that Podolsky's appeal may be

understood as an appeal from the district court's denial of Motion

No. 1, it is similarly unavailing.  Motion No. 1 sought the return,

under Fed. R. Crim. P. 41(e), of the airline tickets seized from

Podolsky by TWA and the FBI.  The parties dispute whether Motion

No. 1 is merely a garden-variety motion in a criminal case, or,

instead, a separate civil complaint.  This distinction is

potentially important, because the rules governing criminal and

civil appeals differ materially.  Even so, it is unnecessary for us

to resolve the question; Podolsky's attempted appeal of the denial

of Motion No. 1 is not timely under either standard.  We explain

briefly.

     If Motion No. 1 is deemed a criminal motion, we lack

jurisdiction over this appeal.  The district court denied Motion

No. 1 on September 23, 1997, and Podolsky did not notice his appeal

until February 23, 1998.  Thus, Podolsky failed many times over to

satisfy the applicable ten-day requirement.  See Fed. R. App. P.

4(b).

     If, on the other hand, Motion No. 1 was not a motion at

all, but, as Podolsky now asseverates, was the functional

equivalent of a newly instituted civil action, then its denial

would be subject to the so-called "separate document" rule,

requiring that a judgment in a civil case be recorded on a separate

document.  See Fed. R. Civ. P. 58 ("Every judgment shall be set

forth on a separate document."); see also Fiore v. Washington

County Community Mental Health Ctr., 960 F.2d 229, 233-36 (1st Cir.

1992) (en banc) (explicating and applying the separate document

rule).  Nevertheless, a district court's failure to memorialize its

disposition of a motion on a separate document does not expose its

order to appeal in perpetuity.  Rather, as we explained in Fiore,

     it [is] appropriate, absent exceptional

     circumstances, to infer waiver where a party

     fails to act within three months of the

     court's last order in the case. . . .  A party

     wishing to pursue an appeal and awaiting the

     separate document of judgment from the trial

     court can, and should, within that period file

     a motion for entry of judgment.



Id. at 236.  In this instance, the district court denied Motion No.

1 on September 23, 1997, some five months before Podolsky docketed

the notice of appeal.  No explicit motion for entry of judgment was

filed at any time, and no exceptional circumstances exist.  Under

Fiore, then, the order denying the motion became final and

unappealable prior to the end of 1997 (and well before Podolsky

acted).

     Podolsky essays an end run around Fiore.  He tells us

that his lawyer sent a letter on November 3, 1997, requesting that

the court treat his response to the government's objection to

Motion No. 1 as a motion for reconsideration.   As this case

proves, parties who resort to informal measures often do so at

their peril.  The letter is not docketed in the district court

record.  Moreover, even if such a letter were sent and received, it

was too little and too late.

     The letter was too little because it did not mention

entry of judgment and cannot reasonably be construed a motion for

that relief.  Additionally, an undocketed letter is not a pleading

and need not be treated by the court as one.  See Massachusetts

Sch. of Law, 142 F.3d at 45 n.16; Weinberger, 925 F.2d at 528.  The

letter was too late because, if it can be considered a motion at

all, it was a motion for reconsideration, not for entry of

judgment.  As such, it was out of time.  See Fed. R. Civ. P. 59(e)

(stating that motions to alter or amend a judgment must be filed

within ten days); see also In re Sun Pipe Line Co., 831 F.2d 22, 24

(1st Cir. 1987) (explaining that any "motion which ask[s] the court

to modify its earlier disposition of a case because of an allegedly

erroneous legal result" must be deemed to be brought under Rule

59(e)).  Thus, the letter was incapable either of elongating the

appeal period or of preventing a waiver of the separate document

rule.

     This brings us full circle.  Under any imaginable

scenario, Podolsky's appeal from the denial of Motion No. 1 was

untimely.  Hence, this aspect of his appeal fails for want of

appellate jurisdiction.

III.  THE REMAINING ISSUE

     In contrast to the jurisdictional tangle surrounding

Motion No. 1, Motion No. 2 clearly falls within our domain.  The

lower court denied this motion on February 12, 1998, and Podolsky

noticed an appeal on February 23, 1998.  The appeal was timely. 

See Fed. R. App. P. 26(a) (explicating procedures for computing the

ten-day appeal period).  Consequently, we must reach Podolsky's

substantive claims on this issue.

     We apply an abuse of discretion standard in reviewing the

district court's disposition of Motion No. 2.  See United States v.

Vaknin, 112 F.3d 579, 586 (1st Cir. 1997).  Because the court acted

by simple endorsement, we cannot be certain of the grounds upon

which Judge Stearns rejected the motion.  In that state of affairs,

we have two options; an appellate court, faced with the task of

reviewing an inscrutable order, may either remand for a fuller

exposition or act, without remanding, if a reasonable basis

supporting the order is made manifest on the record.  See Camilo-

Robles v. Hoyos, ___ F.3d ___, ___ & n.5 (1st Cir. 1998) [No. 97-

2260, slip op. at 15-16 & n.5] (observing that an appellate court,

facing an unexplained trial court order, may either remand for

clarification or employ the record to "reconstruct the probable

basis for the district court's decision"); see also Polyplastics,

Inc. v. Transconex, Inc., 827 F.2d 859, 860-61 (1st Cir. 1987)

(discussing appellate court's freedom to affirm on any

independently sufficient ground revealed by the record).  In this

instance, we choose the latter option.

     Here, the district court placed a special condition on

its restitution order.  The condition stated that:

     The court will entertain remitting restitution

     or any portion thereof if the defendant

     presents evidence that he has paid the costs

     of the airline tickets through his credit card

     payments.  The defendant is to provide the

     Probation Officer with any documentation of

     his payment.  The Probation Officer in turn is

     to furnish this information to the Government,

     who shall have an opportunity to respond.  The

     Court will ultimately decide on any amendment

     to the order of restitution; . . . .



Purportedly responding to this condition, Podolsky reassessed the

data used in establishing the original restitutionary award and

presented this reworking to his probation officer on July 21, 1997

(roughly five months after the date of sentencing and four months

after entry of the sentence on the docket).  Three months later, he

filed Motion No. 2, beseeching the court to hold a hearing

regarding the new assessment or to assign review of the information

to a master of some kind.  The district court denied this motion by

endorsement.

     Podolsky did not appeal the district court's original

restitutionary order, so that order became final and unappealable. 

Withal, in crafting the special condition of probation, the

district court left open a pathway for remission of restitution: 

if the defendant "present[ed] evidence that he has paid the costs

of the airline tickets through his credit card payments."

     In this venue, Podolsky argues that the district judge's

statements at the disposition hearing reveal a willingness to

revalue existing information even without the benefit of additional

evidence.  The best support for Podolsky's argument, hawked by his

counsel at oral argument in this court, is Judge Stearns's

statement that, by imposing the condition, he left open the

possibility of "remit[ting] the probation term at least in all or

in part if you can show me by a preponderance of the evidence a

reason to do so."  But this comment is at best ambiguous. 

Moreover, during the relevant colloquy, Judge Stearns noted that he

was "satisfied with the integrity of the government's accounting

which focuses on the elicit [sic] credits the defendant amassed for

the exchange of tickets."  He then framed the window of opportunity

for remission and directed Podolsky to provide his probation

officer with "financial information . . . to establish restitution

or to advise [the judge] of whether any revision in the restitution

is in order."  Given these remarks, we find Podolsky's

interpretation of the colloquy dubious.

     We need not dwell upon this amphiboly because Judge

Stearns's written statement of the probation condition removed any

uncertainty as to what sort of submission might engender a decrease

in the restitution owed.  That statement limited the evidence that

would ground a reduction to evidence that Podolsky "paid the costs

of the airline tickets through his credit payments."  We accept

Judge Stearns's written order at face value and regard it as

satisfactory clarification of his intent in establishing the

probation condition.  See Lefkowitz v. Fair, 816 F.2d 17, 22 (1st

Cir. 1987) (suggesting that "uncertainty as to the meaning and

intendment of a district court order can sometimes best be

dispelled by deference to the views of the writing judge").  This

course seems especially appropriate since the judge's subsequent

summary rejection of Podolsky's proffer is fully consistent with

this construction.

     That ends the matter.  All the information that Podolsky

subsequently submitted to the probation department and on which

Motion No. 2 depends was available at the time of sentencing. 

Podolsky's recharacterization of credit card charges and his

rearrangement of figures previously disclosed amounts to nothing

more than an attempt to reargue the original issue in defiance of

conventional finality principles.  This initiative cannot qualify

under any reasonable definition as additional "evidence" or

"documentation."  Because Motion No. 2 strayed from the narrow path

that the sentencing court had left open, the court acted well

within its discretion in declining to reconsider its restitution

order in response to Podolsky's importuning.

IV.  CONCLUSION

     We need go no further.  Podolsky failed to preserve his

right to appeal either his sentence (including the order for

restitution) or the district court's denial of his subsequent

motion for return of property.  And though he did retain a right to

appeal from the sentencing court's purported refusal to implement

the special condition attached to his probation, Podolsky's

presentation did not address the circumscribed issue left open by

the court.  Thus, because Motion No. 2 represented a futile attempt

to insert a square peg into a round hole, the district court did

not abuse its considerable discretion in rebuffing the attempt.



Affirmed.