[301 U.S. 158, 159] Mr. Reynolds Robertson, of Washington, D.C., for petitioner.
Mr. Gordon Dean, of Washington, D.C., for the United States.
Mr. Chief Justice HUGHES delivered the opinion of the Court.
Certiorari was granted to determine important questions which have arisen in the administration of the Criminal Appeals Rules promulgated May 7, 1934. 28 U.S.C.A. following section 723a; 292 U.S. p. 660 et seq.
Petitioner was convicted of violation of the mail fraud and conspiracy statutes. His timely appeal was taken on June 30, 1936. Within thirty days thereafter the trial judge extended the time to file a bill of exceptions to and including November 1, 1936, which was a Sunday. The trial had been long and the testimony was voluminous. On October 20, 1936, after unsuccessful efforts to obtain an agreement as to the condensation of the evidence, petitioner applied to the trial judge for an extension of time to settle and file the bill of exceptions. As it was found that the trial judge was without authority to grant that extension, petitioner sought an extension [301 U.S. 158, 160] from the Circuit Court of Appeals, but his motion was denied on October 27th. He then asked the trial judge to settle the stenographer's minutes as the bill of exceptions. That motion was first denied on October 29th, but on the following day the trial judge expressed his willingness to receive a similar application if the colloquy of counsel was stricken from the transcript, that application to be made on Monday, November 2d. On that day the bill of exceptions, so prepared, was settled and filed. On November 16, 1936, the government moved to docket and dismiss the appeal upon the ground that petitioner had failed to comply with rules 8 and 9 of the Criminal Appeals Rules (28 U.S.C.A. following section 723a). The motion was granted. Petitioner asked for a rehearing and was heard. Insisting that it was impossible within the allotted time to set forth the evidence in condensed and narrative form, petitioner requested the Circuit Court of Appeals to exercise its discretionary power under rule 9 to the end that the defect in the bill of exceptions might be cured. That request was made simultaneously with the motion to dismiss. It appears to have been treated as a motion to amend the record and it was denied. The court took the view that as, by the assignment of errors filed with the bill of exceptions, the question was raised as to the sufficiency of the evidence to support the conviction, it was necessary under the rule that the evidence should be properly presented in condensed and narrative form. The court held that the time for the settlement of the bill of exceptions could not be enlarged, and that if the bill were returned to the trial judge he would be powerless to correct, amend or resettle it as the time for such action had expired.
Finally the court decided that petitioner was inexcusably delinquent. The court said: 'This appellant had four months v. United States (C.C.A. 8th) 84 F. (2d) delinquency. The bill of exceptions was insufficient.' [301 U.S. 158, 161] The motion to amend the record was denied and the motion to dismiss the appeal was granted. 86 F.(2d) 942, 944.
First.-The government contends United States (C.C.A.9th) 86 F(2d) 463; 2d was too late. The Circuit Court of Appeals correctly held the contrary. The trial judge, by valid order, had extended the time 'to and including the 1st day of November, 1936.' That day being Sunday, on which the bill of exceptions could not be filed, the trial judge construed his order as permitting the settlement and filing on the following day. Rule 13 of the Criminal Appeals Rules (28 U.S.C.A. following section 723a) provides:
The government argues that this rule refers to a 'computation,' as where the extension is for a certain term or period, and not to a case where a specific date is fixed. The latter case is said to lie outside the rule and we are referred to various decisions which are deemed to furnish analogies for our guidance in reaching a conclusion upon a point left open. But there appears to be no reason why rule 13 should be so narrowly construed. The phrase 'For the purpose of computing time' was plainly intended to be of general application and 'computing' naturally embraces whatever reckoning is necessary to fix the time allowed. When a specific date is fixed and that date falls on Sunday or a holiday, the rule for the reckoning requires that that day be excluded and hence the bill of exceptions, in this case, apart from other questions, was settled and filed in time.
Second.-The Circuit Court of Appeals had authority to extend the time for filing the bill of exceptions. Rule 9 does limit the power of the trial judge to grant extensions. The purpose of the rule being to expedite appeals in criminal cases, it was sought to put an end to the inor- [301 U.S. 158, 162] dinate delays due to extensions of time to prepare bills of exceptions. Such extensions had been one of the most prolific causes of the delays in the disposition of criminal appeals. Accordingly rule 9 provides:
The rule presupposes that the trial judge, who is familiar with the proceedings on the trial, is in a position to estimate the length of time that is necessary for the preparation and filing of the bill of exceptions, and he is permitted within thirty days after the taking of the appeal to fix that time. That is the limit of his authority,1 save as he may act under the direction of the Circuit Court of Appeals. But, while this limit is placed upon [301 U.S. 158, 163] the power of the trial judge, the Criminal Appeals Rules give full authority to the Circuit Court of Appeals to set aside or modify his order whenever it appears that there has been an abuse of discretion or that the interests of justice require it.
The fundamental policy of the Criminal Appeals Rules is that as speedily as possible, upon the taking of the appeal; the Circuit Court of Appeals shall be invested with jurisdiction to see that the appeal is properly expedited and to supervise and control all proceedings on the appeal 'including the proceedings relating to the preparation of the record on appeal.' Rule 4 (28 U.S.C.A. following section 723a). For this purpose the rules provide that the notice of the appeal shall be filed in duplicate with the clerk of the trial court and a copy of the notice shall be served upon the United States attorney. Rule 3 (28 U.S.C.A. following section 723a). By rule 4 it becomes the duty of the clerk of the trial court immediately to forward the duplicate notice of appeal to the clerk of the appellate court, together with a statement from the docket entries in the case substantially as provided in the form annexed to the Rules. This is a ministerial duty which the clerk of the trial court must perform. With respect to the authority of the Circuit Court of Appeals, rule 4 provides:
These provisions are comprehensive. The clause that the appellate court's supervision and control shall be [301 U.S. 158, 164] 'subject to these rules' refers to the rules governing the action of the appellate court. To make effective this supervision and control, any matter requiring correction may be brought before the appellate court upon the short notice of five days. Thus there may be not only a motion to dismiss the appeal but 'for directions to the trial court' and 'to vacate or modify any order made by the trial court or by any judge in relation to the prosecution of the appeal.' As the supervision and control of the proceedings on the appeal expressly embraces the proceedings 'relating to the preparation of the record on appeal,' it cannot be said that an order made by the trial judge fixing the time for the settlement and filing of a bill of exceptions is excluded. It is, of course, assumed that the Circuit Court of Appeals will not lightly interfere with the action of the trial judge. But the rules appropriately provide for the correction of any miscarriage of justice in this respect, and the lodging of the supervision and control with the appellate court gives the highest assurance that on the one hand the action of the trial judge will not be interfered with unnecessarily and on the other that neither party will be remediless when corrective action is required. For example, it may clearly appear on a showing by the government that the time allowed by the trial judge for the filing of a bill of exceptions is altogether too long and that, in the interests of a reasonably prompt disposition of the appeal, it should be shortened; or it may clearly appear that the time allowed is unreasonably short and that justice requires that an extension should be granted. To give a desirable flexibility, the rules do not attempt to lay down specific requirements to meet various situations but place upon the Circuit Court of Appeals full responsibility for the exercise of a reasonable control over all proceedings pertaining to the appeal and all the orders of the trial court or judge in that relation.
Third. The Circuit Court of Appeals had authority to [301 U.S. 158, 165] return the bill of exceptions to the trial judge and to require such correction as might be found to be appropriate, including the setting forth of the evidence in condensed and narrative form. Rule 9 provides:
The authority of the Circuit Court of Appeals thus extends to the 'correction, amplification, or reduction' of the record on appeal of which the bill of exceptions is a part. The appellate court is authorized to require a proper bill of exceptions and to give any directions to the trial court or trial judge that may be necessary to attain that end.
Rule 8 of the rules of this court (28 U.S.C.A. following section 354), to which rule 9 refers, provides (rule 8, par. 2):
Fourth.-The supervision and control of the Circuit Court of Appeals under the Criminal Appeals Rules calls for the exercise of a sound judicial discretion, and its action will not be reviewed unless it appears that its discretion has been abused. In the instant case, despite the mistaken view of its authority, the court appears to have rested its final conclusion upon the ground that, [301 U.S. 158, 167] even if the court had the power to grant petitioner's request, the circumstances justified its denial. The court pointed to the fact that petitioner had four months to procure the settlement of the bill of exceptions and the court thought his excuses insufficient. While petitioner strongly insists upon the authority of the appellate court, he apparently took no steps to have that authority exercised in his favor until toward the end of October. He complains that at that time, upon his motion for an extension of time or other relief, the court itself suggested that an application should be made to the trial judge for an order settling the stenographer's minutes as the bill of exceptions, and that the circuit judges intimated to the government's counsel that opposition to that course should be withdrawn. This, it is said, took place on October 27th. Petitioner urges that in directing the settlement of the bill of exceptions in its inappropriate form he was but following the suggestion of the appellate court in view of his exigency and with the idea that the condensation and narration of the evidence could later be obtained. But the Circuit Court of Appeals was fully acquainted with all that had taken place. When the later motions came before the court, it was clearly entitled to review the whole matter and reach a conclusion as to the proper exercise of its discretion. It was the province of the court to weigh the petitioner's excuses. It did so and found them to be without merit. In the light of its statement as to the ultimate ground of its action we cannot say that the court failed to exercise its discretion or that its action was an abuse of discretion. In that view the order is
[ Footnote 1 ] See White v. United States (C.C.A.4th) 80 F.(2d) 515, 516; Yep v. United States (C.C.A.10th) 81 F.(2d) 637; United States v. Adamowicz (C.C. A.2d) 82 F. (2d) 288; Gallagher v. United States (C.C.A.8th) 82 F.(2d) 721; Wolpa v. United States (C.C.A.8th) 84 F.(id) 829; Cusamano v. United States (C.C.A.8th) 85 F. (2d) 132; Spero v. United States (C.C.A.8th) 85 F.( 2d) 134; Slade v. United States (C.C.A.10th) 85 F.(2d) 786; Cary v. United States (C.C.A.9th) 86 F.(2d) 461; St. Charles v. United States (C.C.A.9th) 86 F.(id) 463; Goddard v. United States (C.C.A.10th) 86 F.(2d) 884; In re Lee (C.C.A.5th) 87 F.(2d) 142; Wainer v. United States (C.C.A.7th) 87 F.( 2d) 77; Fitzpatrick v. United States (C.C.A.7th) 87 F.(2d) 471; Miller v. United States (C.C.A.9th) 88 F.(2d) 102; Hightower v. United States (C.C.A. 9th) 88 F.(2d) 302; Young v. United States (C.C.A.10th) 88 F.(2d) 305. Compare Fierman v. United States (C.C.A.3d) 84 F. (2d) 968.