Lott v. United States/Dissent Clark

by Tom C. Clark

United States Supreme Court

367 U.S. 421

Lott  v.  United States

 Argued: April 18, 1961. --- Decided: June 12, 1961

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 administration 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 * * *.' (Emphasis 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.' (Emphasis 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 wih in 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, 292 U.S. 661, 662, 54 S.Ct. XXXVII, the predecessor of present Rule 34, stated that 'motions in arrest of judgment * * * shall be made within three (3) 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, 1930, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076; United States v. Bradford, 2 Cir., 194 F.2d 197. The same is true of a plea of nolo contendere. Our cases have long and consistently held that, 'like the plea of guilty, it is an admission of guilt for the purposes of the case.' Hudson v. United States, 1926, 272 U.S. 451, 455, 47 S.Ct. 127, 129, 71 L.Ed. 347. 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 page 623 of 281 U.S., at page 425 of 50 S.Ct. (Emphasis 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." 367 U.S. at page 427, 81 S.Ct. at page 1567. 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, 292 U.S. 661.' ^[4] (Emphasis added.) 'Existing law' did not allow motions in arrest unless made within three days of 'verdict or finding of guilt.'

The majority notes petitioners' argument that Sullivan v. United States, 1954, 348 U.S. 170, 75 S.Ct. 182, 99 L.Ed. 210, 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 32d ) after sentence.

The Court attempts to bolster its decision by noting that a nolo 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 respective pleas or of the verdict of the 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. Robinson, 1960, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259, that this should be effected 'through the rule-making 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.

Notes

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 10-day period,' the appeal period is tolled until the motion is overruled. Petitioners argue that since their motions in arrest were filed within the '10-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. Notes of Advisory Committee on Rules, 18 U.S.C. (1958 ed.), at p. 3428.
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.