United States v. Roth and Five Other Actions

208 F.2d 467

• Court: Court of Appeals for the Second Circuit
• Decided: December 11, 1953
• Docket: 22752
• Status: Published

Opinions

PER CURIAM.

Unlike the civil rules, under which the lack of timely appeal here would be quite clear, see Fed.Rules Civ. Proc. rule 58; United States v. Wissahickon Tool Works, 2 Cir., 200 F.2d 936, 939, and cases cited, the federal rules of criminal procedure do not cover the point in issue; and in United States v. Hark, 320 U.S. 531, 534, 64 S.Ct. 359, 361, 88 L.Ed. 290, decided by a divided bench, where it was “Unaided by statute or rule of court,” the Court relied on what it took to be a local practice for the evidencing of decision by later formal orders. A directly contrary practice in the Eastern District was found to require dismissal of an appeal in United States v. Eliopoulos, 2 Cir., 158 F.2d 206, 208. To similar effect is United States v. Rockower, 2 Cir., 171 F.2d 423, cer-tiorari denied Rockower v. United States, 337 U.S. 931, 69 S.Ct. 1484, 93 L.Ed. 1738, where we upheld the defendant’s immediate appeal from a denial of a motion to vacate his conviction, such denial being merely endorsed by the judge on the motion papers and then noted in the docket.

The two cases last cited therefore point to the invalidity of the appeals here. But we think the necessary result is made quite clear by a local rule, being a uniform rule in effect in both the Southern and Eastern Districts, providing : “A memorandum of the determination of a motion, signed by the judge, shall constitute the order. * * *” Rule 10, General Rules of the United States District Courts for the Southern and Eastern Districts.¹ This general statement of the intent of the court — see United States v. Rockower, supra, 2 Cir., 171 F.2d at page 425 — should be taken as decisive, since in effect it incorporates the clear provisions of the civil rules into the criminal procedure and serves to dissipate uncertainty as well as counsel control of the time of submission and hence of the signing of orders. For matters thus important should not turn upon the time when Government counsel choose to submit orders to the judge who has completed adjudication.

To offset the effect of this rule, appellant submits an affidavit from the Chief Deputy Clerk in the office of the District Court Clerk stating a practice to enter orders when a judge grants a motion as here and “The Government’s submission for settlement of an order on this decision was in accord with the practice usually and customarily followed in this district, notwithstanding Local General Rule 10(a).” Whose is the practice is not made clear; other affidavits before us 2 leave it in some doubt whether it is that of the clerk, or of the lawyers as in the civil cases as previously criticized by us, e. g., Leonard v. Prince Line, 2 Cir., 157 F.2d 987, 989. Certainly we should expect something more precise than this before holding that the district judges had by positive action nullified their own sensible rules formulated with the greatest of care by co-operating committees of able lawyers from the two districts and only recently adopted.³ We conclude that the appeals were not timely.

Motions granted; appeals dismissed.

1 . The rule continues: “but nothing herein contained shall prevent the court from making an order, either originally or on application for resettlement, in more extended form.” There may he seeds of ambiguity lurking here as to the effect of granting an application for resettle-merit of an order. But since no such application was made below, the provision quoted is not presently applicable.

2 . An affidavit by the Assistant United States Attorney states that he attempted to take an earlier appeal, but “was advised,” on bringing it for filing to the Clerk, “that an order would have to be entered.” An affidavit by one of defense counsel recates that the Clerk has found no one in his office who gave such a direction, that he had given no instructions for refusing a notice of appeal where there was no formal order on a judge’s signed memorandum of determination, that “the usual practice of the bar” was “to file a formal order,” but the Clerk upon inquiry would merely refer the questioner to Rule 10 and the deputy’s affidavit did not intend to offer any opinion as to the computation of the timeliness of an appeal. Other evidence tended to show that at a hearing on March 31, 1953, court and counsel relied on the court’s direction for a return of the records to defendants as foreclosing compliance with a subpoena to the United States Attorney requiring production of some of these-records in Chicago.

3 . Effective March 1, 1952. An earlier-form of the rule stated: “A memorandum of the determination of a motion, together with a recital of the papers-used thereon, and signed by the court: or judge shall constitute the order.” The italicized words now omitted follow the-method beloved in state practice and criticized federally. F.R. 54(a); Soderstrom v. Kungsholm Baking Co., 7 Cir., 184 F.2d 756, 757; United States v. Wissahickon Tool Works, supra. The order prepared by the Government and submitted-' to Judge Goddard thus followed an olderpraetice repudiated in the new rule.