Lott v. United States/Opinion of the Court

by Charles Evans Whittaker

United States Supreme Court

367 U.S. 421

Lott  v.  United States

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

This case is concerned with the timeliness of an appeal from a judgment of conviction and sentence in a criminal case under Rule 37(a)(2) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. ^[1]

These three petitioners, having been jointly indicted, with two others, on five counts in the United States District Court for the Southern District of Texas for willfully attempting and conspiring to evade the federal income taxes of their corporate employer, ^[2] entered, and the court accepted, pleas of nolo contendere on March 17, 1959. But the court decided that pronouncement of its judgment should await conclusion of the impending jury trial of the other two defendants. ^[3] Soon after the conclusion of that rather protracted trial, the court, on June 19, 1959, orally pronounced its judgment convicting petitioners and sentencing them to imprisonment. ^[4] Three days later, on June 22, formal judgment was prepared, signed by the judge and filed with the clerk. The next day, June 23, petitioners filed their separate 'motion(s) in arrest of judgment.' ^[5] Those motions were denied on July 13. Two days later, on July 15, petitioners filed their separate notices of appeal from the judgment to the United States Court of Appeals for the Fifth Circuit. ^[6]

On the Government's motion, that court dismissed the appeals as untimely under Rule 37(a)(2). 280 F.2d 24. It held, in effect, that, although there is no such express limitation in the Rules, the provisions of Rule 37 ^[7] impliedly modify and limit the provisions of Rule 37(a)(2). And it concluded that, although 'motion(s) * * * in arrest of judgment' had, in fact, 'been made within the 10-day period' after entry of the judgment appealed from (Rule 37(a) (2)), it cannot be so regarded under these Rules because the tender by petitioners and acceptance by the court of the pleas of nolo contendere on March 17 constituted the 'determination of (their) guilt,' and, inasmuch as the motions in arrest were not made 'within 5 days after (that) determination of guilt' as required by Rule 34, it followed that, to be timely under Rule 37(a) (2), the appeals had to 'be taken within 10 days after entry of the judgment or order appealed from' (Rule 37(a)(2)), or by June 30 or July 2-depending upon whether it was the oral pronouncement of June 19 or the formal entry of June 22 that constituted the judgment-and not 'within 10 days after entry of the order denying the motion.' Rule 37(a)(2). 280 F.2d at pages 27 28. Because of a conflict between the circuits upon the question presented ^[8] and of its importance to the proper administration of the criminal Rules, we granted certiorari. 364 U.S. 813, 81 S.Ct. 63, 5 L.Ed.2d 45.

Buttressed by Lujan v. United States, 10 Cir., 204 F.2d 171, and Smith v. United States, 10 Cir., 273 F.2d 462, holding, on similar facts, that Rule 37(a)(2) alone and unaffected by any other Rule prescribes the time within which an appeal must be taken to a Court of Appeals in a criminal case, and further buttressed by their belief that this Court, too, so held, even if sub silentio, in exercising jurisdiction, under facts virtually identical to those here, in Sullivan v. United States, 348 U.S. 170, 75 S.Ct. 182, 99 L.Ed. 210, petitioners point to the facts that Rule 37(a)(2) is captioned 'Time for Taking Appeal'; that it is the only Rule that purports to deal with the subject; that it does not speak of motions filed within five days, nor after 'verdict or finding of guilty' (Rule 33), nor after 'determination of guilt' (Rule 34)- whatever that term may mean-and makes no reference to timeliness, under any other Rule, of the motions of which it speaks, but that it simply says in plain and unmistakable language that 'An appeal by a defendant may be tk en within 10 days after entry of the judgment or order appealed from, but if a motion * * * in arrest of judgment has been made within the 10-day period an appeal from a judgment of conviction may be taken within 10 days after entry of the order denying the motion.' Then, after pointing to the admitted fact that their motions in arrest were 'made within the 10-day period'-actually within three days-after entry of the judgment appealed from, and that they appealed on the second day after their motions were denied, petitioners strenuously insist that their appeals were timely. They contend that to hold their appeals to have been untimely, in these circumstances, would be to mutilate that plain language of Rule 37(a)(2) and to make of it a trap even for the wary-including their experienced and competent counsel who were doing their best to protect petitioners' rights of appeal. And they insist that such a snare should not be permitted to deprive one of the valuable right of an appeal upon which his liberty, or even his life, may well depend.

Though we are impressed by this demonstration and argument, as also by the legalisms of the Government's countervailing argument, and although recognizing, as we do, the obscurity, if not inconsistency, in these Rules that has been exposed by this case, we need not here decide whether Rules 33 and 34 modify Rule 37(a)(2) so as to limit the time which it specifies for the taking of an appeal-but may and should leave that problem and its kindred ones, brought to the fore in this case, for resolution by the rule-making process, ^[9] United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259-for we have concluded that it was the judgment of conviction and sentence, not the tender and acceptance of the pleas of nolo contendere, that constituted the 'determination of guilt' within the meaning of Rule 34. And, inasmuch as the motions in arrest were 'made within 5 days after (that) determination of guilt,' as required by Rule 34, and thus, in any view, were also 'made within the 10-day period' after entry of the judgment appealed from, as required by Rule 37(a)(2), the appeal, taken 'within 10 days after entry of the order denying the motion,' was timely.

Although it is said that a plea of nolo contendere means literally 'I do not contest it,' Piassick v. United States, 5 Cir., 253 F.2d 658, 661, and 'is a mere statement of unwillingness to contest and no more,' Mickler v. Fahs, 5 Cir., 243 F.2d 515, 517, it does admit 'every essential element of the offense (that is) well pleaded in the charge.' United States v. Lair, 8 Cir., 195 F. 47, 52. Cf. United States v. Frankfort Distilleries, 324 U.S. 293, 296, 65 S.Ct. 661, 89 L.Ed. 951. Hence, it is tantamount to 'an admission of guilt for the purposes of the case,' Hudson v. United States, 272 U.S. 451, 455, 47 S.Ct. 127, 129, 71 L.Ed. 347, and 'nothing is left but to render judgment, for the obvious reason that in the face of the plea no issue of fact exists, and none can be made while the plea remains of record,' United States v. Norris, 281 U.S. 619, 623, 50 S.Ct. 424, 425, 74 L.Ed. 1076. Yet the plea itself does not constitute a conviction nor hence a 'determination of guilt.' It is only a confession of the well-pleaded facts in the charge. It does not dispose of the case. It is still up to the court 'to render judgment' thereon. United States v. Norris, supra, 281 U.S. at page 623, 50 S.Ct. at page 425. At any time before sentence is imposed-i.e., before the pronouncement of judgment-the plea may be withdrawn, with the consent of the court. Rul 32(d), Fed.Rules Crim.Proc. Necessarily, then, it is the judgment of the court-not the plea-that constitutes the 'determination of guilt.' Apart from the opinion below, we have not been cited to any case, and have found none, that holds or even intimates the contrary.

In view of this disposition of the jurisdictional question, we need not decide petitioners' alternative contentions that their motions in arrest should be treated as motions under Rule 12(b)(2) of the Federal Rules of Criminal Procedure (see Finn v. United States, 4 Cir., 256 F.2d 304; 306; Hotch v. United States, 9 Cir., 208 F.2d 244, 250; United States v. Holmes, D.C.S.D.Tex., 110 F.Supp. 233, 234), or as motions to vacate sentences under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255 (see Marteney v. United States, 10 Cir., 216 F.2d 760; Finn v. United States, supra).

The judgment is reversed and the cause is remanded to the Court of Appeals for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Mr. Justice CLARK, with whom Mr. Justice FRANKFURTER, Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.

Notes

1. 'Rule 37. Taking Appeal; and Petition for Writ of Certiorari.
2. The corporate employer and taxpayer was Farnsworth & Chambers Co., Inc. Petitioners were employee-officers of that corporation, and collectively owned approximately 7 percent of its issued and outstanding capital stock. The first four counts of the indictment charged willful attempt to evade the corporation's income taxes for the years 1951, 1952, 1953 and 1954, respectively, and the fifth count charged a conspiracy to commit the four substantive offenses charged.
3. The two codefendants who stood trial were Richard A. Farnsworth, Sr., and his son. They owned a major part of the corporation's capital stock. Their trial, which began on Apri 6, 1959, and continued through June 9, resulted in a verdict of acquittal of the son on all counts, and a failure of the jury to agree on any of the counts as to the father.
4. Petitioners were sentenced to imprisonment-Blocker for three years, Lott and Frazier for two years, on each count, the sentences to run concurrently, and each was fined $20,000.
5. Each of the motions in arrest prayed, inter alia, 'that the judgment and sentence * * * be arrested and set aside, that the indictment * * * be dismissed, and that (there) be granted such other relief as justice may demand.'
6. Actually, only Lott appealed on July 15. Blocker and Frazier appealed two days later, on July 17.
7. 'Rule 34. Arrest of Judgment.
8. In accord with the decision below is United States v. Bertone, 3 Cir., 249 F.2d 156. And see O'Neal v. United States, 5 Cir., 264 F.2d 809; Drown v. United States, 9 Cir., 198 F.2d 999; Godwin v. United States, 8 Cir., 185 F.2d 411. To the contrary are Lujan v. United States, 10 Cir., 204 F.2d 171; Smith v. United States, 10 Cir., 273 F.2d 462; and see Sullivan v. United States, 10 Cir., 212 F.2d 125, affirmed 348 U.S. 170, 75 S.Ct. 182, 99 L.Ed. 210.
9. In light of the confusion that has arisen under these Rules, as exposed by this case, it is hoped that those who advise the Court with respect to the exercise of its rule-making powers more particularly of course the Judicial Conference of the United States (28 U.S.C. § 331, 28 U.S.C.A. § 331) and the Advisory Committee on Federal Rules of Criminal Procedure-will give these problems their early attention.