United States v. Robinson

PETITIONER:United States
LOCATION:District Court for the District Court of Columbia

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 361 US 220 (1960)
ARGUED: Dec 08, 1959
DECIDED: Jan 11, 1960

Facts of the case


Audio Transcription for Oral Argument – December 08, 1959 in United States v. Robinson

Earl Warren:

Number 16, the United States, Petitioner, versus Troyit Robinson, et al.

Ms. Rosenburg.

Beatrice Rosenberg:

May it — May it please the Court.

This case is here on writ of certiorari to the District of Columbia Circuit and presents the question of the interpretation of the Rules of Criminal Procedure with respect to the timeliness of an appeal in a criminal case.

The pertinent facts are very simple.

Rule 37 (a) provides that an appeal in a criminal case may be taken within 10 days after sentence or denial of a motion for a new trial.

In this case, 26 days after sentence, the respondent noted an appeal and petition for leave to proceed in forma pauperis.

The District Court did grant the leave to proceed in forma pauperis.

In the Court of Appeals, the Government moved to dismiss the appeal on the ground that it was untimely under Rule 37.

The Court of Appeals for the District of Columbia Circuit held that under 45 (c) of the Rules of Criminal Procedure while a District Court could not enlarge at the time for Appeal within the 10-day period, it could, after the expiration of the 10-day period, allow an untimely appeal on the showing of excusable neglect.

And it said that if the District Court, by granting permission to appeal in forma pauperis, intended to find excusable neglect, if the Court of Appeals would have jurisdiction of the appeal.

The District Court did find excusable neglect and that question here is, whether there was power to allow an untimely appeal after the 10-day period 65 Rule 37.

Now, before turning to the legal considerations that governs this, I want to point out that the only question here is what the rule did provide.

There is not doubt that the rule makers could have allowed an appeal for an excusable neglect and we have no question here of whether they should have done so, in other words whether the policy was good or bad.

The only question is what did they do?

This is the first time in the 13 years or so the rules had been in existence that any Court has had — had held that they did make provision for an untimely appeal.

In fact, that every other Circuit in the country has held to the contrary and so, the question is, as I have said simply did they do this.

It seems to us like every test of legislative rule making intention that we have, language, background, history, it is perfectly clear not only that the rule makers did not make provision for an untimely appeal, but that they very deliberately decided not to.

Is there no other trick in showing the contrary that the District Court (Inaudible)

Beatrice Rosenberg:


Not that I know of.

I think this is the only decision that has come up that way.

I don’t believe that it has been considered a question for the District Court.

That is — I don’t think they’ve asked — the District Court has ever thought it had power to allow an untimely appeal.

Motions have usually been made in the Court of Appeals on motion to dismiss the appeal.

I think that —


Beatrice Rosenberg:

Yes, it may have.

I just don’t know there is a decision, Your Honor.

Well, let’s turn to these theories, considerations by which we judge the intention of the rule makers and the first is the language itself.

Beatrice Rosenberg:

The rule is set forth in page 2 of our brief.

Rule 37, as I say, simply says that, “Appeal maybe taken 10 days after sentence or motion for a new trial.”

The Court of Appeals relied on Rule 45 (b) which is also on page 2 and that says, “When an act is required or allowed to be done within a specified time, the Court for cause shown may at any time in its discretion with or without notice, one, order the period enlarged if application therefore is made before the expiration the period fixed by the rule.

Or two, upon motion permit the act to be done after the expiration of the specified period if the failure to act was the result of excusable neglect,” and then he goes on and these are the crucial words, “but the court may not enlarge the period for taking any action under Rules 33, 34 and 35, except as provided in those rules, or the period for taking an appeal.”

Now, the reasoning of the court below is this.

They say, “enlarge” is used only in subdivision (1).

It is not the word used in subdivision (2) and therefore, the provision the Court may not enlarge the period for taking any action under the rules or the period for taking an appeal prohibits enlargement of a 10-day period, but doesn’t prohibit action under (2) allowing an appeal after the 10-day period.

Charles E. Whittaker:


Beatrice Rosenberg:

That is the point of view of the court below.

There are number of reasons why we don’t think this interpretation is the intent of the drafters of the rule.

In the first place, the entire rule is headed enlargement and the word “enlargement” in the title presumably covers both (1) and (2).

In the second place, this last sentence on which the Court of Appeals relies becomes — makes really knows that when you interpreted as did the court below in relation to rules 33, 34, and 35.

It says, “Enlarge the period for taking any action under Rule 33, 34, and 35 or the period for taking an appeal.”

So then, “enlarge” must mean the same thing in relation to Rule 33 as it does in relation to taking an appeal.

Now, Rule 33 and Rule 34 have, they’re in the appendix to our brief.

Rule 33 and Rule 34 have their own period of time for taking action within the period fixed by the rules.

So, that “enlarge” has used in relation to Rule 33 and 34, can’t possibly mean taking action within the period fixed by the rules.

The provision saying, “You can’t enlarge the period for taking action under Rule 33, must therefore refer to taking action after the period fixed by the rules.”

And as the matter of fact, this Court in United Sates against Smith, 331 U.S. said, “That you can’t take action after the period fixed by the rules.”

So much for the language —

Charles E. Whittaker:


Beatrice Rosenberg:

Oh, no.

In United States against Smith, Your Honor, A motion for new trial, the Court on its own motion tried to grant a new trial after the 10-day period fixed by the rules and it was held that Court on its own motion could not do so, even in the interest of justice — that the 10-day fixed by the — 10-day period fixed by the rules, terminated the power to grant a new trial.

It seems to me the length — I should point out in this connection that these rules went through 10 drafts in the four years before they were promulgated and that two of those drafts were circulated, to the bench, and the bar and their comment asked for.

Ambiguity have resulted sometimes, but an ambiguity that would make this whole reference to Rule 34, 35, and — 33, 34, and 35 meaningless, it is so incongruous that it doesn’t seem to me it could have survive 10 drafts if that was the intent of the drafter, but we’ve got more than that in a way to regard to legislative intent or the drafter’s intent.

These rules came with a background of 12 years experience under the Criminal Appeals Rules which were promulgated in 1934.

Now, under those Criminal Appeals Rules in 1934, the background was a very rigid one in relation to the time for appeal.

The time for appeal was five days and there was in those rules, no provision for enlargement of time such as Rule 45 of the present rules.

There were numerous decisions holding that there could be no untimely appeal after the five-day period.

The rules — the 1934 rules also had a provision at the time for petitioning for certiorari was 30 days and this Court decided that it, although it had authority to promulgate the rules that it was bound by the 30-day period and no justice with the Court granted an extension of time in that period.

Beatrice Rosenberg:

Now, against that background, any provision for an untimely appeal for excusable neglect would have been a marked departure from the practice as it was known before the rules were promulgated.

And one would have expected some comment on that in the two drafts that were issued with notes.

Now, the revisers have commented on the fact that they were then extending the time for appeal from five days to 10.

They commented on the fact that they were granting to a Justice of this Court, the power to extend the time for filing the petition for certiorari, 30 days, if application was made in the 30-day period.

But there isn’t one word in the notes for the first preliminary draft or the second preliminary draft or in all the various articles that the commentators that drafted the rules have written, explaining the rules which suggests that they were granting to the Court the power to allow an untimely appeal, except for this one comment which even further clarified their intent not to allow an untimely appeal.

And that is, that in the first preliminary draft of the rules, there was a very limited provision for extension of time, that’s on page 22 of our brief, and this provided that when a Court imposes sentence upon the represented by counsel, appointed by the Court or not represented by counsel, the Court shall ask for defendant whether he wishes to appeal.

If the defendant answers in the affirmative, the Court shall direct the clerk forth with to prepare, file and serve on behalf of the defendant a notice of appeal and then, this is the crucial thing or shall extend the time specified by the rule for filling the notice of appeal.

In accordance with that, at the top of page 23 of our brief, Rule 45 which proposed Rule 45 (b), equivalent of it, as it was proposed in the first draft said, “But, the Court may not enlarge the period for taking an appeal except as provided in Rule 35 (a) (2), which was the number of the appeal rule in that first draft.

Now, that very limited provision for an extension of time was dropped by the second draft of the rules and never reappeared.

The only thing that remained is the provision that where a defendant is not represented by counsel, the clerk will note his appeal for him, so that this obviously represented a deliberate decision although the reason for it was not commented on the notes of the second draft, but it was there, the first set was circulated and then it was dropped.

So that, it is perfectly clear that the revisers knew how to draft the provision for an extension of — or allowing untimely appeal if they want to do it or allowing an extension, and they decided not to.

And we have still one (Inaudible) guide to the intentions of the drafter and that is, Rule 6 of the Rules of Civil Procedure.

As they then read at the time of the promulgation of the Criminal Rules, that’s on page 25 of our brief, they provided much as Rule 45 be does now, the Court may not enlarge the period for taking any action under specific rules or the period for taking an appeal as provided by law.

And under the Civil Rules which were the model of 45 (b), the cases up to that time had held that the time for appeal was jurisdictional and that you could not allow an appeal untimely even though there was excusable neglect.

Did any of the text writers (Inaudible) Court of Appeals?

Beatrice Rosenberg:

I haven’t found any, Your Honor.

I the — I have not found any suggestion of this interpretation of the rules until the opinion by the court below.

The only other point that might be said to agree with the opinion of the — I — I think the idea must have come from this fact which I was going to talk about, which is that in 1948, when the Civil Rules were amended in the refining process that does come about when rules are being reconsidered, the word “enlarge” in Rule (6) of the Federal Rule was changed to extend.

And the notes to the advisory committees on those rules say, at page 26 of our brief, the phrase “extend the time” is substituted for “enlarged period” because the former is a more suitable expression and relates more clearly to those Clauses (1) and (2).

But I want to point out which I think we didn’t mention in the brief that this refinement didn’t even the current of address.

This is the Civil Rule until the second preliminary draft.

The first preliminary draft which contains three alternatives about — how to handle this problem or continue to use the term “enlarge” in a way which I think leaves no room for doubt that there were referring to both (1) and (2) that is enlargement during the period or extending the time after the termination of the period.

And it wasn’t until the second preliminary draft of the Civil Rules that it occurred to someone that the word “extension” was possibly a more ashtrays than “enlarge.”

And so, from the time the Civil Rules were promulgated until the 1944 Amendment as far as I have been able to find, it was just assumed that “enlarge” in that context of, enlarge the time for taking an appeal, prohibited an untimely appeal under subdivision (2) as well as an extension of time to the take the appeal under subdivision (1) and as I say particularly, it was thinking about intent of the drafters.

But absence of comments, the fact, while they’re coming in on all sorts of minor changes like extending the time for five to 10 days, but the absence of any suggestion that they were departing from what have been the 12 year — year experience of a rigid time for appeal, suggested it never occurred to them that they were extending the time for appeal in the sense of allowing an appeal for excusable neglect.

Earl Warren:

Ms. Rosenberg, at any place in the Criminal Rules, do the headings make any distinction between enlargement and extension?

Now, you said that this particular rule, you were referring to headed —

Beatrice Rosenberg:

Is headed —

Earl Warren:

— it was headed enlargement.

Is there any other — other rule that is headed the extension or it have to —

Beatrice Rosenberg:


This is the one rule of governing enlargement generally.

Of course, there are in the rules like Rule 33 itself has a provision that —

Earl Warren:


I’m talking about the heading — the heading that you referred to as being enlargement.

Now, is there any other heading on — on any these other rules that says “extension” to differentiate the two?

Beatrice Rosenberg:

Oh, no, Your Honor.

This is the one rule that covers it generally.

Earl Warren:


Beatrice Rosenberg:

This is the one rule on enlargement or extension as except as to specific provision is made to do a particular thing.

This is the one general rule covering — this whole rule governs time, that is the first part of the rule governs the time within how you calculate time and then second part covers enlargement of time, so that there is no guide there.

Now, this Court last year in the Isthmian case pointed out that if rules are to be changed, there is a method of changing them.

As I understand it, the Criminal Rules are now in the process of being studied with a view towards revision.

The policy consideration for or against allowing an untimely appeal for excusable fact can be made at that point.

There are obviously, I think policy considerations for and against.

It seems to us, we can never escape from the conclusion that the draft is of — the present rule deliberately shows the policy of a rigid time for appeal, 10 days instead of five before but nevertheless a rigid time for appeal.

That policy should be reconsidered, the place to reconsider it is in the revision of the rules, but the language and the background and the history of the rule we think make it clear that when these rules were drafted, that was not the policy chosen.

There is no provision.

I try to distinguish it there is not limitation on the number for language as it may be granted by the Court in there, the application was made before the expiration or the duration of the time (Inaudible) defendant.

Beatrice Rosenberg:

There was no power to grant an extension of time to appeal, Your Honor.

I know but, if in 10 days an application for an extension was made or argued?

Beatrice Rosenberg:

Because there was no power.

That is — even the court below could insist that within — concedes that the effect of Rule 45 (b) is that within the 10-day period, a District Court may do nothing.

It may not enlarge the time for taking an appeal and that as I say, the court below concedes also that otherwise for the language of Rule 45 (b) with respect to appeal would be absolutely meaningless, but in that it held that even though you can’t do it within the 10-day period, you can do it sometime after without (Inaudible) presumably five years later if excusable — excusable neglect was shown.

Earl Warren:

Mr. Stempil.

I. William Stempil:

Honorable Chief Justice and learned justices, by this time the Court knows and understands the circumstances under which the filling of the notices of appeal in this case were made.

Evidently, the Court of Appeals believed that there was merit in the causes, as they were presented to them otherwise what other reason would they want to have jurisdiction over the cases and to hear them.

Having already decided on the 45 (b) (2) that the District Court exercised its juri — jurisdictional and discretionary powers to act as it did, when it enlarge directed to indicated that the forma pauperis notice of appeal was filed late and it was done under circumstances constituting legal, excusable neglect under 45 (b) and the order did state that.

True the only question before the Court is may a District Court allow the filling of that notice under those circumstances if the reason for the untimely filling is excusable neglect?

But the trouble here is that the Government wants to go further than just attacking that action.

I. William Stempil:

It wants to make this a cardinal offense against the rules and insist that an action of this type will open the flood gates and it will amount to frivolous appeal taking by everybody who might come trump up some excuse and then come along and say, “I’m filling the appeal or the notice of appeal late on the grounds of excusable neglect.”

The Government contends that if this type of ruling and decision and opinion is allowed to stand, it would permit unwarranted delay and could result in appeal as Mrs. — as Miss Rosenberg said being filed months and even years after the time for appeal has expired.

In the brief that the Government has filed, it asks the Court to take special notice of Criminal Rule (2) as it pertains to the rules that we are now discussing, 37 and 45.

And quick to point out that it provides the standard for constructing and construing the Criminal Rules and advises as that these standards include three things, simplicity in administration, fairness in the administration and elimination of delay.

And that to allow on appeal at anytime on the showing of what they say excusable neglect is not within the standards for interpreting the rules.

I say, that’s not logical reasoning and I can’t go along with the government.

It’s important to note that when the rule writers, who were appointed by this Court had to determine whether the rules should have the words, may or shall or must, where they wanted the rules to be mandatory, they used the word “shall” or the word “must,” but where a situation arose where the Court or the trier of the facts had to determine for itself and use its own discretion as to what had to be done in the interest of justice, then, the word “may” was used.

I asked the question, what is wrong with someone seeking review of an apparent miscarriage of justice and being allowed to do so by a forward and correct thinking opinion of a Court instead being thwarted by a rule or the interpretation of a rule that says, “No, you cannot prove yourself innocent.”

Now, although we know you are and the Government knows, having read the brief, and the Court of Appeals having the brief before it, you should have told us about it Monday.

Today is Tuesday, it’s too late.

The rule says so and we can’t do anything about it.

Sorry, we’ve got to go by the rules.

Charles E. Whittaker:

I had in this argument (Inaudible) hard to resist and their most appealing but is it the basis for rewriting the rule?

I. William Stempil:

Yes Your Honor, under the certain circumstances.

I say, there is nothing wrong when the Court rules correctly.

As the party filing of an appeal, when the ends of justice is served and an innocent person is freed after being incorrectly convicted of a crime that he is blameless of, we don’t have to rewrite the rules.

The rules give us the power, gives the District Court the power now under 45 (b) as the Court of Appeals interpreted it — the rules and said they do have the power.

Charles E. Whittaker:

Well, that’s a different question.

It may be that they were right about it.

I didn’t mean to foreclose that issue, but I was merely calling your attention to the fact, many times I’ve had made to me, this argument that you’re making and it’s a difficult one to resist and simply because a notice is one day late that very important rights are to be lost, but yet are not courts bound by a — an ironclad rule if it is such?

I. William Stempil:

I say, it might be an ironclad rule, but if Your Honor will allow me to bring out a point, I think, we’re dealing with human beings and the rules took care of that, I’ll bring it out.

I say by — when the Court rules correctly in allowing someone or allowing the Court to rule as it did in this case, to make sure that an injustice is not done, that’s good law.

Isn’t that what justices are ought to be?

I’m under the impression that the rules were promulgated by human beings to see that justice was done.

Yet, the Government contends that these rules must be used and interpreted as gates never to be open to those who are entitled through morality, through ethics, through common sense and logic to justice despite the interpretation given to rules in these cases by the District Court and the Court of Appeals.

In construing the standards of the rules to ensure the simplicity and procedure, the fairness in the administration and the elimination of delay, if that means taking away a judge’s discretion as to what he can do and what he cannot do legally, under the rules and as interpreted by the Court of Appeal in this case, I say, there would be no simplicity in procedure.

There will be a manifest injustice and unfairness in the administration of justice leaving only a speedy way to get rid of and dispose all — of all the criminal cases.

And even at the chance of overlooking perhaps one that might merit an appeal in order to avoid a harsh injustice.

I know of no other instance than in a present case, where a District Court has allowed a so called filling late due to excusable neglect on the 45 (b) (2) with the Court of Appeals agreeing to hear the case on the merits, but the Court of Appeals was careful first to point out that it was the District Court, the District Court that had to determine first if the circumstances warranted the exercise of the power conferred under the 45 (b) (2), to the District Court before accepting jurisdiction.

On November 25th, two weeks ago, the Court of Appeals for the District of Columbia Circuit having previously accepted jurisdiction of a tardily filed appeal under 45 (b) (2) disposed of it thusly.

I. William Stempil:

“This Court’s Troyit Robinson Ruling is the law of this jurisdiction.

It holds that we have jurisdiction of a tardy criminal appeal if excusable neglect is found.

Such neglect having been determined to exist, we must entertain the present appeal.

But, since our consideration of the merits, convinces us that there is no prejudicial error, the resulting affirmance will have the same effect as the dismissal or want of prosecution.”

Do you found any cases in other circuits supporting your position?

I. William Stempil:

I have found if Your Honor will allow me as I go along to bring it out in order, supporting my position, yes.

What — what cases were those?

I know what you say about the Isabella case.

The Isabella case would be in this decision that (Inaudible), but I was wondering whether you have an answer?

I. William Stempil:

Judge Medina —

Whether you have a case that (Inaudible)

I. William Stempil:


I’m glad you mentioned that case.

Reading Judge Medina’s decision as I will bring out later, evidently Judge Medina never went beyond Rule 37 because he specifically says, “there is nothing in Rule 37 that makes mention of excusable neglect.”

Couldn’t you tell me whether you have a case?

I. William Stempil:

Yes, Your Honor.

I will have.

(Inaudible) your way?

I. William Stempil:


In Resnick versus Lehigh Valley Railroad 11 Federal Rules decision 76, the Court is aware under the provisions of Rule (6) (b), it is with out power to extend the time for taking any action under 73 (a).

Thus, the Court cannot enlarge the prescribed period.

However, in consideration of express representations made by defendant’s counsel, the Court finds that upon all of the facts that there is a showing of excusable neglect and all findings are dated back to the last day allowed under the rules.

Under that condition, the Court instead of using 45 (b), just used its discretion and its power and dated everything back.

That was into the — the case that he thought he couldn’t do it directly.

I. William Stempil:

I’ll have another one for you.

In Ledwith versus Starkin, 2 Federal Rules decision 539, ordinarily, the discretion should be exercised towards granting relief if there’s an adequate showing of excusable neglect to take proper action within the time required.

Even when a party makes a showing of mistake, inadvertence, surprise for excusable neglect is right to have a default judgment set aside is not absolute.

And whether the default should be set aside rest in the sound discretion of the Court although upon adequate showing, the Court’s discretion should ordinarily inclined towards granting rather that denying relief, especially if no intervening rights have attached in reliance upon the judgment and no actual injustice will ensue.

Now, Your Honor asked me that perhaps they would going about in another fashion, going getting around, we might perhaps use the harmless error statute.

There, it says if it was an error for the District Court Judge to hold the motion timely rather than grant an enlargement of time for making it, the error was a formal and harmless error without effect on the substantial rights of the parties.

Charles E. Whittaker:

May I ask you a question?

Was the error of this not harmless doesn’t touch the question of whether the filling of the notice within the prescribed 10 days as mandatory and jurisdictionally?

I. William Stempil:

I maintained that the language of the rule is not mandatory and I believe if Your Honor will allow me, I’ll bring this up.

Charles E. Whittaker:


I. William Stempil:

I say, since this last case with District of Columbia Circuit has been decided two weeks ago that although it was accepted on the grounds of excusable neglect, they looked into the merits and said, “There is no reason to accept it as accept it on appeal.”

That leaves, the Troyit Robinson case, the only case on record, but under the circumstances, I believe, we can rely and trust the judgment of the judges in the District and Court of Appeals and that being able to determine which cases are going to be allowed and examine the circumstances on each case as to whether or not they’re going to allow them to proceed further under the circumstances as to filing in late when it comes to filing a notice to appeal at a time.

The Government insists as Your Honor has pointed out that the appeal is mandatory and jurisdictional and states for the large number of cases, since the present rule became effective, have uniformly held that the appeals regardless of their merits of the case, have been dismissed and regardless of the excuse.

My research indicates differently.

What the Government doesn’t tell the Court that in so many of the cases, when the Government has dismissed these appeals and noting that they were untimely filed that the opinions also include the words that the merits of the case do not want — warrant further hearing of the appeal even if they would timely filed.

That perhaps is a self or soul searching or a way of letting the judge rid himself of something he calls conscience within himself.

Another point that I find fault with the Government is that choice of cases.

Where the courts time after time had either misread or unconsciously misinterpreted 37 (a) (2) and delivered an opinion completely incorrect as I understand it.

In the Swihart case cited by the Government, the opinion reads, Rule 37 of the Federal Rules of Criminal Procedure provides that an appeal must be taken within 10 days after the entry of the judgment.

And in the Isabella case.

And the one so strongly relied upon by the Government, the Court noted its opinion thusly, the question on this case is one of power for if this Court had discretion in the matter, we might well exercise it in favor of the prisoner that there was mistake, inadvertence, neglect or something of the sort is plain enough and if there were in the present rules, some general provision authorizing a Court to grant relief, we might well be disposed to grant such relief here.

I think there was some general provision.

The Court goes on to say, “The difficulty is that the pattern of the Rules of Civil and Criminal Procedure relative to appeals makes it clear that relief maybe granted only in a specific case.

The text of the rules is too explicit to leave room for construction to meet the facts of a variety of particular cases of real or seeming hardship and it is not without significance that no provision whatsoever is made for excusable neglect.

Mistake or inadvertence in Rule 37 of the Federal Rules of Criminal Procedure, where a person convicted has an attorney, the notice of appeal must be filed within 10 days of above notice.”

In this case, the Isabella case is different from the present case in two respects; excusable neglect or legal excuse for neglect was not authorized reason for filing the appeal after the 10-day period and the District was never asked to nor did it ever do, according to my research and according to the record, exercised jurisdictional and discretionary power to pass on the question of late filling, under 45 (b).

Earl Warren:

What was the reason assign for, in the Isabella case for asking him to extend the time?

I. William Stempil:

The lawyer in the case professed that be both a believer or a follower of the Jewish faith and of the Seventh Day Adventist.

And the day for filing the brief was on the Sabbath, Saturday day.

He told the Court that on leaving the office on Friday, he left note with his secretary to pick up the appeal at the printers or have the printer, when it was finished, deliver the appeal to the Court.

Earl Warren:

On Saturday?

I. William Stempil:

On Saturday.

Earl Warren:


I. William Stempil:

It was not done.

He then came in on Monday and used that as a reason.

If the Court does ask me, I did ask first since connected with the Isabella case, I went right to the top.

Earl Warren:

Well, I was just asking you would the facts — facts are — but did he claim that that was excusable neglect?

I. William Stempil:

He claimed there was excusable neglect and Judge Medina told me that he felt that it was excusable neglect.

Earl Warren:

Well, I was just wanted to know what the claim was.

I thought you said that it was different, that it’s (Inaudible)

I. William Stempil:

And as far as any of the other cases cited by the Government where the opinions read that the appeal must be taken within 10 days, that’s not so.

The rule doesn’t say that or even mention the word “must” anywhere.

What it says, that an appeal by defendant maybe taken within 10 days after the entry of the judgment or the order appeal from, but no where is a mandatory words “must” used.

I’ve been under the impression and I have always been under the impression of the statutes that require acts that to be done or taking or effective within a statutory period or a time certain, contain the words “must” or “shall.”

And the time computation under such language could not be extended either by agreement or speculation, but where the rules or the statutes themselves spell out exceptions or the language of the rules and statute are couched in words such as “may” then the Court has no mandate to apply the strict interpretation, but has the power to hear and determine and exercise some judgment and make some determination.

That the Court can do what 45 (b) (2) says it can do, spells it out very plainly, how and when and under what circumstances.

In our case, with reference to Ms. Rosenberg’s notation that 45 (b) has enlargement of time, the record would bear me out that at no time that we ask for an enlargement of the period within which to take our appeal, now where.

And in the instant case, Judge Kurren used his discretion and issued the order, that the record reflects that the appeals were allowed and the failure to act was due to excusable neglect under the 45 (b) of the Federal Rules of Criminal Procedure.

I’m going to go off for the (Inaudible) if I may.

If this problem was handled systematically as well as in the humanistic manner, the decision reached by the District Court and the Court of Appeals is not hard to understand.

The initial question of jurisdiction maybe decided by a District Court to whom application is made and that is the law and I have the Supreme Court authority for that.

And in another case, in appellate court, the Supreme Court said that an appellate court must satisfy itself not only of its own jurisdiction, but also of that of the lower court and the cause under review.

That’s what the Court of Appeals did.

They first had to satisfy themselves that the District Court had the power and discretion and do what they did.

Then, they said there was going to be an appeal.

This Court also said that it’s a cardinal principle that on appellate court review was essential to avoid grave injustice to prevent or denial of the essential rights.

So, perhaps if a District Court Judge couldn’t do it because of one day late, he couldn’t find his way out, then was up to the appellant court — the Supreme Court to see that the man wasn’t denied of the essential rights.

The Government contends that the right of appeal in criminal cases is reason, and one of the expressed reasons or purposes of providing such rules was to eliminate the long delays after verdict.

I say here, the Government is responsible for the long delay because if they hadn’t challenged this ruling of the District Court and the opinion handed down by the Court of Appeals, these appeals would have been heard 14 months ago and if there was no merit to it or to those cases, the Court of Appeals would have disposed of them very expeditiously, very quickly.

On page 27 of the Government’s brief, they point out they’ve been unable to find one case outside of the District of Columbia which has interpreted 45 (b) to allow post expiration filings and that the majority below have cited no authority for their holdings.

We now come to an important point; must there be authority for their holding when no authority was necessary?

I did point out in some of the instances, the Ledworth and Resinick case.

The Government contends further that the ruling rendered by the District Court and accepted by the Court of Appeals is without precedent.

Must there be precedent before a Court can rule on a question that confronts it where it manifests injustice that is so apparent?

I say, that stare decisis has it place in the law, but when justice demands and allows a remedy as it does in 45 (b) (2), I say, to the Government, they ought to stand aside and not like — not block the path of those unfortunates who because of a technicality or an admitted error or excusable neglect on their part and the counsel too of being punished for a crime which in every respect they all blame us.

18 years ago in the case of Waring versus (Inaudible), there was a case decided here in the District of Columbia Circuit.

I. William Stempil:

Justice Vincent writing for the Court expressed themselves on the subject vastly.

When the case is decided, it is expected that people will make their behavior conform to the rule it lays down and also to the principle expressed insofar as it can be determined.

This is true whether the decision is to be regarded as the law, the best evidence of the law or a protection of what the Court will do the next time.

When hard cases arrive under the principle, counter principles are emphasized.

Distinctions pointed out and the determination, what are significant may become easier or more difficult.

If at last, the first decision is overruled, then, there is new law.

Better reference or an enlighten basis for protection.

All the loose ends presented in this discussion on the effect of altering the law can be pretty well tied together when it is realized that the law is not an exact or pure science.

And the law loses its vital meaning if it is not correlated to the organic society in which it lives and that the law is a present and perspective force that it needs some stability of administration.

The law is all that the law there is and that the law is more for the parties that for the courts and that the people were rely upon and a just behavior, the Court is with all the law, be it legislative or judicial or both.

These considerations should guide the lawmakers and law appliers in making their determinations in respect of whether a change in the law is to be effective only for the future or for the past and if for the latter, to what extent?

And these considerations should be applicable to both sides of the potential litigation Civil or Criminal.

So that we may have our rules as we go on.

It has often been said that the living should not be governed by the dead for that would be to close our eyes for the changing conditions which time imposes.

It seems sound to say that the living should not be governed by the posterity for that return would be downright chaotic.

So, I say to the Government, “Don’t worry, what might happen in another case or any case after this.

Determine this except, what the Court of Appeals has said, what the District Court has said in their interpretation of the rules and let it go with that” because I feel that the batting average, for justice, for date in the United States is pretty nigh perfect and I’ll take my chances on that the Government should too.

There are certain cases that the Government ought to knuckle down to and say, they merit the interpretation of 45 (b) (2) and I say this is one of them, Here in the District of Columbia —


I. William Stempil:

If I go over, two or three minutes, will the Court allowed me that?

Earl Warren:

Just — your time isn’t up yet.

I. William Stempil:


In the District of Columbia, it is settled law that its laws are local laws.

And since we operate under federal statutes and rules, with those rules having the same effect and force of statutes, why should the Government ask the Court to reverse its own rules in a situation that fits so compatibly and to a situation like this?

The Supreme Court in one case, said it would leave undisturbed the interpretation placed upon purely local law by a federal Judge, where the reasoning or conclusion of the judge was not refuted by the respondent and the Circuit Court of Appeals had not disagreed with the holdings of the judge.

I have two more minutes, if the Court will allow me.

Earl Warren:

You may —

I. William Stempil:

In interpreting the rules in favor of the Robinson Brothers, both the District Court and Court of Appeals have said in so many words, there is no reason and logic, no reason and justice or any expediency for limiting the time during which the Court may grant the release under circumstances.

I believe, clinging to that technicality which has been misinterpreted, is wrong.

They ought to keep in mind, Justice Vincent’s statement regarding these hard cases.

I. William Stempil:

Fortunately, we live under the system of laws where justice is not as hard and blind as some people would make it out to be.

I know, I come to the right place, to seek and secure justice.

I say, that 45 was written in a way it was written by the people to take care of situation such as this by giving the Court’s permission to exercise their jurisdiction and powers of discretion to allow an act to be done after the time prescribed.

To assert otherwise, is to worship the rule above the principle.

I was asked by Justice Whittaker, how I felt in light of the fact that he as a District Judge, felt very badly that he had one day to consider.

In our almost 200 years of existence, the conviction of the medicine person in the federal court is rarely, but it happens because human beings are fallible and I don’t know what the Government and I hope the Court doesn’t want the Government here add the Robinson case to its list and I have one more statement and I want to know if the Government wants this Court to believe that within the space of 11 days that the quality of innocence or the opportunity of being allowed to prove one’s innocence, looses its luster or that the aisle or that the eye of the trial judge has become too jaundice to rectify an apparent miscarriage of justice.

I hope you will allow the Court of Appeals’ opinion to stand.

Thank you.