*1 al. v. STATES. LOTT UNITED et (cid:127) Argued April 18, No. 238. 1961.— Decided June argued petitioners. C. W. Wellen the cause for With him H. Moss. on the brief were John Crooker and Joe S. argued
Bruce J. Terris the cause for the States. him on the briefs With were former Solicitor General Rankin, Cox, Attorney Solicitor General Assistant Gen- Rice, eral Assistant Attorney Oberdorfer, Meyer General Bailey. Rothwacks and Lawrence K. opinion delivered Justice Whittaker
Mr. Court. *2 appeal of an the timeliness concerned with
This case is in a criminal and sentence of conviction judgment a from of the Federal Rules (a)(2) 37 of case under Procedure.1 Criminal indicted, having been jointly petitioners, three
These in the States five counts others, on with two for District of Texas the Southern District Court federal conspiring and to evade the attempting willfully and entered, employer,2 corporate of their income taxes 17, March nolo contendere on of accepted, pleas of its pronouncement decided that But the court 1959. jury impending the conclusion! of should await judgment after the con- defendants.3 Soon trial of the other two Taking 1“Rulb 37. of Appeal; Petition for Writ and
Certiorari. “(a) Taking Appeal Appeals. to a Court of may Taking Appeal. appeal by
“(2) An a defendant Time for entry appealed days judgment the or order within 10 of taken judgment of has from, motion for a new trial or but if a 10-day appeal judgment of period the an from a been made within of the order be taken within 10 conviction denying the motion. . . .” corporate employer taxpayer was Farnsworth & Cham The and employee-officers corporation, Co., Petitioners were of that bers Inc. percent its issued and collectively approximately 7 owned and outstanding The of the indictment capital stock. first four counts charged attempt corporation’s taxes for to evade the income willful 1952, 1954, respectively, the fifth years 1951, count the 1953 and charged. charged conspiracy the substantive offenses to commit four trial were Richard A. Farns- The two codefendants who stood major corpora They part of the worth, Sr., his son. owned a began 6, 1959, trial, April on capital Their which tion’s stock. acquittal through 9, resulted in a June verdict continued agree counts, jury to on and a failure son on all to the father. counts as court, on June trial, protracted rather of that
elusion convicting peti its judgment orally pronounced 19, 1959, Three imprisonment.4 to sentencing them tioners prepared, was formal 22, June days later, on next the clerk. and filed with judge signed “motion separate their filed petitioners [s] June day, denied on Those motions judgment.” arrest of filed July 15, petitioners later, on Two July 13. from notices of separate Fifth Circuit.6 for the Appeals Court United States dismissed court motion, On Government’s F. (a)(2). untimely under Rule appeals there is no although effect, that, held, It 2d provisions in the Rules, express such limitation *3 of provisions modify and limit impliedly 347 Rule “mo- although that, it concluded (a)(2). 37 And Rule in “been fact, had, judgment” in arrest of ... tion [s] entry judg- of the after 10-day period” within made it cannot be so (a)(2)), 37 (Rule from appealed ment by peti- the tender because these Rules under regarded nolo pleas of court of by the tioners “determination constituted the March 17 on contendere 4 for three imprisonment to were sentenced Petitioners —Blocker count, the sentences years, on Frazier for two each years, Lott and $20,000. fined concurrently, each was run 5 judg alia, “that prayed, inter in arrest of the motions Each aside, that the indict set ... be arrested ment and sentence granted other relief be such dismissed, and that ment ... be [there] may demand.” justice as 6 Frazier July Blocker and 15. only appealed on Actually, Lott July days later, two on appealed 7 Judgment. Arrest “Rule of 34- information or if the indictment judgment “The shall arrest court jurisdiction without the court was charge or if not an offense does judgment shall charged. in arrest The motion of the offense such guilt or within days 5 determination within after made 5-day during period.” fix further time as 424 guilt,” [their] and, inasmuch as the motions days [that] made 5 after determination not “within guilt” required by to be 34, Rule it followed that,
timely (a) appeals (2), under 37 had to “be taken Rule entry or order within 10 (Rule appealed (a)(2)), June 30 or from” July depending upon pro- whether it was the oral 2— entry of June 22 nouncement of June 19 or the formal “within that constituted the not —and denying (Rule the motion.” of the order (a)(2).) 2d, 280 F. at 27-28. Because of conflict upon question presented8 the circuits between and. importance proper administration its to the granted criminal we certiorari. 364 S. 813. U. by Lujan States, Buttressed 204 F. 2d (C. Cir.), A. 10th and Smith v. F. 2d (C. Cir.), holding, A. 10th on similar facts, that (a) (2) by any Rule 37 alone and unaffected other Rule prescribes the time within which an must be taken Appeals to a Court of a criminal case, further buttressed their belief that this so too, held, Court, exercisingjurisdiction, silentio, if sub even under facts virtually here, identical to those Sullivan v. United petitioners point States, 348 U. S. to the facts that (a)(2) captioned Taking Appeal”; Rule 37 “Time only purports it is the to deal with subject; speak does of motions filed *4 days, finding guilty” within five nor after “verdict or (Rule 33), guilt” (Rule 34)— nor after “determination of
8In accord with the
Bertone,
decision below is United States v.
(C.
Cir.).
whatever that term mean —and Rule, under of the motions ence to other timeliness, in simply says plain which it that speaks, but that “An a defend- language appeal by unmistakable judg- of the may days entry ant be taken within after in ment or order but if a motion ... appealed from, 10-day arrest of has been made within period appeal may an from a of conviction denying taken within entry after of the order fact pointing motion.” to the admitted Then, 10-day within the that their motions arrest were “made within period” actually three — —after they and that on the judgment appealed from, appealed day petitioners second denied, their were They strenuously appeals timely. insist their contend that appeals untimely, to hold their to have been plain these would circumstances, be to mutilate language (a) (2) trap of Rule 37 and to make of it even wary including experienced competent for the — doing protect counsel who were their best to petitioners’ rights appeal. And insist a snare they that such permitted deprive should not be one of the valuable right appeal upon life, of an which liberty, his or even his depend. well
Though impressed by we are this demonstration argument, by legalisms as also of the Government’s countervailing argument, although recognizing, as we do, the if inconsistency, these Rules that obscurity, exposed by has been this case, we need not here decide modify whether Rules 33 and 34 (a)(2) Rule 37 so as to limit specifies time which it taking for the of an may and should leave that problem and its —but kindred ones, brought case, to the fore this for resolu- process,9 United States v. Robin- rule-making tion light In confusion has arisen under these exposed case, hoped this it is those who advise the Court *5 that it was we have concluded
son, 220—for 361 U. S. sentence, not the tender judgment of conviction contendere, that consti- of nolo pleas of the meaning of guilt” within the the “determination of tuted in arrest were inasmuch as the motions And, 34. Rule guilt,” determination of after “made within 5 [that] also any view, 34, thus, required by as judg- 10-day period” “made within the required by Rule 37 from, (a)(2), ment appealed entry of the order appeal, taken “within denying motion,” timely. was nolo means
Although plea it is said that a contendere States, Piassick v. United it,” “I contest literally do not statement of unwill 253 E. 2d and “is a mere 658, 661, Fahs, Mickler 243 F. ingness more,” to contest and no v. “every admit essential element of 515, 517, 2d does charge.” in the pleaded offense well is] [that Lair, Cir.). A. 47, (C. States v. 195 F. 8th Cf. United Distilleries, 293, 296. States v. U. S. Frankfort for Hence, guilt it is tantamount to “an admission of Hudson S. purposes case,” 272 U. 451, “nothing judgment, is left but to render 455, plea the obvious reason that the face of the no issue of exists, plea fact and none can be made while the remains Norris, record,” United States v. S. U. nor Yet the itself does not constitute conviction guilt.” only hence a “determination of It is a confes well-pleaded charge. sion of the facts It does not dispose up of the case. It is still to the court “to render judgment” thereon. United States v. at Norris, supra, e., 623. At imposed time before sentence —i. pronouncement before the of judgment plea may —the respect rule-making with powers par- to the exercise of its —more ticularly of course the Judicial Conference of the United States (28 §331) Advisory U. S. C. and the Committee on Federal Rules give problems early Criminal Procedure —will these attention. *6 with the withdrawn, consent the court. Rule (d), Fed. Crim. Rules Proc. Necessarily, it is then, the of the court —not the consti- —that tutes the guilt.” “determination of Apart from the opin- ion below, we have not been cited to case, and have found that none, holds or even intimates contrary. the
In view of this disposition of
jurisdictional
ques
tion, we need not decide petitioners’ alternative conten
tions that
arrest should be treated as
motions under Rule 12 (b) (2) of the Federal Rules of
Criminal Procedure (see Finn
States,
256 F.
2d 304,
(C.
A. 4th Cir.); Hotch v.
States,
United
F. 2d 244,
(C.
A. 9th Cir.);
Holmes,
United States v.
110 F. Supp.
234 (D.
C. S. D. Tex.)), or as motions
to vacate sentences under 28 U. S.
(see
§C. 2255
Mar
teney v. United States,
to the Court of Appeals for further proceedings not inconsistent with this opinion.
Reversed and remanded. Clark, Justice with whom Mr. Justice Frank- Mr. furter, Mr. Justice Harlan and Mr. Justice Stewart join, dissenting.
The Court characterizes “determination of guilt,” as used Rule 34,1 by the significant phrase, “whatever that term may mean.” It then finds that of a nolo contendere plea is not such a determination. I submit that this Court has that held acceptance of such a plea is a “determination of guilt,” and that today’s deci- 1 Rule pertinent 34 states in part motion “[t]he judgment shall be made within 5 guilt determination of within such further time as during fix 5-day period.” 428- but is also out of only contrary prior cases, is not
sion of both federal and long-accepted practice tune with Believing that will result such state courts. requirements as to the of our Rules confusion justice adversely will be administration of criminal I dissent. affected, respectfully must At Frazier petitioners the time Blocker and offered their pleas (March 17), objected to their Government acceptance by the as it when Lott offered his court, did 20). The court heard (March counsel warned e., charge, of the seriousness of the i. parties *7 charge plea was willful tax that the was volun- avoidance, tarily might made without and that the sentence promises, years’ large be five confinement in addition to a fine. being parties After assured each of the that he wished plea, to enter his the court them. accepted Orders were entered in the minutes of as defendant, the court to each accepting pleas directing “pre-sentence the that a investigation” be undertaken “for sentence at conclusion delay of entire case.” The as to sentence was occa- trial sioned the awaited of two additional defendants pleaded guilty. who had The record that shows on that trial 19, (one June was concluded defendant being acquitted having and the other a hung jury), in appeared court criminal petitioners “on the action sentence . (Emphasis added.) docket . . .” The 11 court, addressing parties, you the said, three of “[a] plea have entered a of nolo contendere, equiv- and that is alent to a plea guilty(Emphasis added.) Neither of counsel nor the parties any made comment on this charac- pleas. terization of their Thereafter, petitioners and counsel made statements mitigation, after which pronounced. sentence was At no time were motions for permission pleas. made to withdraw the On June 22, the judgments formal and commitments on the sentences petitioner were entered and each filed a motion in arrest the that motions is these day. It next the on judgment of five within been filed have held should Appeals of Court nolo contendere of pleas of date crucial holds however, Court, March. was made was guilt” of “determination which on and sentence.2 conviction of day of the there- five within came in arrest Since the 34, Rule timely under were they says Court after, the (a)(2).3 Rule under followed, the appeals S. 292 U. Appeals Criminal (2) II Rule stated 34, present of predecessor 662, 661, made within . . shall . of “motions Certainly guilt.” of finding verdict days after (3) three of pleaA guilt. of verdict a jury referred “verdict” jury of a equivalent considered always been has guilty S. Norris, 281 U. States v. See United guilty. finding 2d 197. F. Bradford, 194 v. States (1930); cases Our contendere. nolo plea of a is true The same “like that, held consistently long have purposes for the guilt admission is an guilty, 451, S.U. Hudson case.” Norris, v. States in United said Court As this (1926). orally pronounced when June this date is Whether *8 judgments formally entered 22, when sentence, June or rationale, these the Court’s for, under clear commitments, not made is of that considered were date timely if either would appeals guilt.” of "determination language solely on its decision place does the Court While appeal an that Rule under that note it well to (a) (2), is Rule of If, judgment.” entry of days after ten “within taken must be within made been judgment has of “in arrest however, a motion over is the motion until period is tolled 10-day period,” filed motions since argue that Petitioners ruled. were not judgment subsequent to period” “10-day within the timely. I 17) July are (filed appeals 13, their July until overruled making Rule this considers contention — the Court that assume refuses specifically it since untenable surplusage entirely mere — upon it. pass supra, entry, plea contendere, after its “the of nolo upon question guilt and for that case, [of innocence] plea was as conclusive as a guilty of would have been. . . . The court was no longer question concerned with the but character guilt, only with the and extent the pun- ishment. . . . The remedy of the accused . . . was to with- draw, court, leave of nolo contendere p.At (Emphasis 623. added.)
Rule 34, the successor to Rule II (2), is likewise clear
unambiguous
says the motion must be filed
—it
within
days
five
of “determination of guilt,” not the time
of judgment or sentence. The Court
however,
today,
rewrites the Rule
holding
judgment
date
is the controlling one.
“[I]t
”
court
. . . that constitutes the 'determination of guilt.’
Ante, p. 427.
It has, however, long been recognized that
determination of guilt
are dis-
parate. United
Norris,
States v.
supra; Fed. Rules Crim.
32 (b).
If
Proc.,
the framers of the Rules had intended to
have the time for filing the
motion
arrest run from the
date of judgment,
they would have said so.
they
Instead
said that Rule 34
existing
“continues
except
law
enlarges the time for making motions in arrest of judg-
ment
from 3
days.
to 5
See
II (2)
of Criminal
Appeals Rules,
The Court to bolster its decision a convic- plea that a nolo contendere “does not constitute dispose not of the case” and that tion,” that “does “[i]t judgment’ 'to render thereon.” up is still to a just guilty these statements are as true when However, guilty. or returns a verdict of plea accepted jury is (2). II equally true under former Rule They certainly committing the defendant judgment sentencing The in each of these instances would still have to be entered. In be done practice, then, nothing actual more is left to plea a nolo contendere than by accepting the court after plea jury a or after a necessary accepting guilty In guilty. returns a verdict of each of the three situa- upon tions, guilt has been determined respective the court of the or the verdict of the pleas In to jury. pleas each motions to withdraw the case, may made, might granted, set aside the verdict be availability that, but their does not alter the fact until any such motion is granted, there has been determination guilt. appears unseemly
It
rather
to me for
Court
enlarge,
through judicial decision,
filing
the time for
an
and,
consequence,
taking
that for
appeal. Only last
we said
United States v.
Term,
Robinson,
that this should be
(1960),
361 U. S.
effected
.
. .” As
“through
rule-making process
.
pointed
there,
(b) specifically provides
was
out
Rule 45
enlarge
period
taking any
“the court
April
nolo
Petitioner’s
contendere was entered on
8 and
immediately accepted
His
court.
motion
arrest of
May
gave
was filed on
29 and denied on June 23. The District Court
no
its
reason for
denial.
was filed June 23.
*10
action under Rules
34 and
35, except
pro-
as otherwise
vided
those
rules,
period
taking
an appeal.”
has, by today’s
The Court
opinion, enlarged the time pro-
vided in
these
contrary
express provision,
to their
contrary
prior
to our
cases,
contrary
long-
practice
established
at the Bar.
In so
doing,
places
these Rules
a state of utter
confusion,
thereby
must
surely drive the Bar and the trial
procedural
courts to
I
distraction.
would affirm.
notes
argument
that Sullivan