BERMAN v. UNITED STATES
Term:
- 1960-1969
Facts of the Case
None
Question
None
Conclusion
Decision: 5 votes for United States, 4 vote(s) against
Legal provision:
Legal provision:
None
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Transcript:
Argument of Bernard B. Polak
Chief Justice Earl Warren: Number 245, Milton Berman, Petitioner, versus United States.
Mr. Bernard B. Polak: Mr. Chief Justice --
Chief Justice Earl Warren: Mr. Polak.
Mr. Bernard B. Polak: Mr. Chief Justice, may it please the Court.
We have here an appeal or a putative appeal of a criminal defendant whom, through some type of error or negligence, did not get his notice of appeal filed within 10 calendar days after the judgments of conviction was pronounced in open court.
The judgment of conviction was pronounced on April 24 after 2 o'clock pm in the afternoon.
The written judgment and commitment was signed and was filed with the clerk of the Court the same day.
That day, a postcard was sent to counsel's office, my office.
We have a notation on that judgment which is in the original record.
The notation however, not being transcribed by the printer of the record that it was docketed as a judgment the following day, April 25th, which was a Thursday.
That docketing relates only to the civil aspects of this judgment.
It -- providing for a fine as well as a prison term and the docketing which was done the next day in the civil judgment docket was on a Thursday.
We do concede that we are concerned with the criminal appeal here rather than the civil appeal.
Chief Justice Earl Warren: (Inaudible)
Mr. Bernard B. Polak: That was a fine Your Honor.
Chief Justice Earl Warren: (Inaudible)
Mr. Bernard B. Polak: Well, that was because it was in the civil judgment docket.
It was a criminal judgment, Your Honor.
There's no --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Bernard B. Polak: That is correct, Your Honor.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Bernard B. Polak: All of the judgment was entered in the file of the criminal docket against this defendant on -- on or as of April 24.
On April 25th, it was entered in the docket of civil judgments as a judgment of the United States of America against the defendant for $10,000 or for the amount that he was fined herein.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Bernard B. Polak: That --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Bernard B. Polak: That appears in the original record here, Your Honor.
Now, if that docketing has a judgment on April 25th could be considered effective, then the 10 days from that would have expired on the Sunday and by the provisions of the roof of a computation of time would carry over to the following Monday.
This is one -- one point that can be noted from that notation on -- on the docket.
And that is stamped by a rubberstamp on the original judgment and commitment dated April 24th.
And I have checked the docket of the U.S. District Court in the Southern District Of New York, and in that docket book of money judgments, that notation appears under the date of April 25th, the following date.
The --
Chief Justice Earl Warren: When does the time for appeal start to run according to your -- your theory whether it's announced and opened -- a sentence then announced in open court or when it's -- it's --
Mr. Bernard B. Polak: Well it would seem that --
Chief Justice Earl Warren: -- reported.
Mr. Bernard B. Polak: -- from the weight of authority of this --
Chief Justice Earl Warren: I beg your pardon?
Mr. Bernard B. Polak: From the weight of authority of this Court and of the Circuit Court of Appeals, we would have doubts as to whether we could rely upon the April 25th docketing of the fine as giving us a right to appeal.
The whole doctrine of authority and of this Court in the past, has considered the sentencing in open court to be the principle point.
However, this is a factor that enters into this case that may distinguish it from other cases that there was a separate docketing of this case as a civil judgment the following day.
Chief Justice Earl Warren: Oh, they take the sentence as it was given in Court, why does it make any witness when -- when it was docketed after that?
Mr. Bernard B. Polak: Because the -- the docketing -- if the metaphysical concept of entry of judgment is to be considered, the actual entry into the clerk's docket as of the time when the clock starts to run, then it may well be that if the Government or the Court chooses to enter the judgment as a money judgment as well as a criminal judgment that the fact that this is effective the following day, at least gives him the right to appeal from the money fine or the judgment insofar as it is a money fine.
Chief Justice Earl Warren: Well, on what -- what authority do you rely of the fact that the fine was a civil judgment?
Mr. Bernard B. Polak: I -- I have no authority, Your Honor -- I --
Chief Justice Earl Warren: So why do you --
Mr. Bernard B. Polak: That -- that is an --
Chief Justice Earl Warren: Why do you call it something different then, from the -- in terms of imprisonment?
Mr. Bernard B. Polak: I would like to withdraw that.
I was thinking in terms of inspection -- inspecting books and the docket that was entered into was a docket of civil judgments for money.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Bernard B. Polak: That is correct, Your Honor.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Bernard B. Polak: That is correct, Your Honor.
My principle point is if this appeal is to be considered as a -- a matter of limitation upon the right of the defendant to file his notice of appeal as it has been found in previous cases that the defendant ought to be accorded, every benefit of any possible doubt of interpretation of the rule in as much as the right of a defendant to appeal to the extent that it is to be considered as a right by this Court, deserves protection.
The defendant's rights herein concern some constitutional points, points that may not have been appreciated too well by counsel that urged these points upon the trial court or by the trial court itself that decided the points.
The point of course being the claim that the search and seizure of contraband at premises where the defendant had desks space that he rented from an overall lessee of the premises was to be considered, he stops from raising an objection to the search and seizure on the ground that his landlord who was the overall tenant of the premises had consented.
It was upon this ground that the trial court finally denied the motion of the petitioner in the trial court to suppress all evidence that was raised and seized upon that search including an alleged statement that was given by the petitioner to the arresting officers after the contraband was found.
On Monday of this week, this Court, in Stoner against California, indicated in very strong terms that a person having legitimate claim to protection of his right against search and seizure has standing an interest to complain of it regardless of who else may have consented to the search.
This decision certainly was presaged by this Court's decision in Jones against United States and in Chapman against United States as well as the earlier case of McDonald against United States in 1948, which -- although it is not cited in my brief, I --
Justice John M. Harlan: (Inaudible)
Mr. Bernard B. Polak: This is -- this is a -- another problem that this Court really must consider because the last case where the principle point was raised, United States against Robinson, this Court indicated that where the constitutional rights of a defendant were at stake, he would always have the right to have a collateral attack brought against the judgment on the grounds that the infringement of his constitutional rights vitiated it.
This is a statement in United States against Robinson that the Government cites in its brief.
Chief Justice Earl Warren: Was this a collateral attack?
Mr. Bernard B. Polak: This is not a collateral attack, Your Honor.
This is a direct appeal and certiorari upon a direct appeal.
However --
Chief Justice Earl Warren: Well, how does that answer the question whether it's just been confounded to you?
Mr. Bernard B. Polak: The second appeal herein, as you may recall from the record after the first appeal was dismissed, the -- a petitioner brought a proceeding under Rule 35 of the Rules of Criminal Procedure in the District Court to modify and correct his sentence.
This motion was granted by the trial court and judgments denoted as an amended judgment and commitment was entered on June 10, 1963.
The defendant petitioner filed a notice of appeal the next day from that and --
Chief Justice Earl Warren: And does that give you an appeal from the original judgment of conviction or from -- from the --
Mr. Bernard B. Polak: There is an indication in the --
Chief Justice Earl Warren: -- decision of that order?
Mr. Bernard B. Polak: There is an indication in the earlier Berman case which of course has no relation to this particular petitioner, in 1937 where that particular procedure was attempted to be followed by the petitioner in that case who thought that his appeal was in jeopardy of being dismissed and hoped that he could revive it by making such a motion in the lower court which motion was granted and a relief sought therein was granted.
This Court, in that case, held that the first appeal was still a valid appeal and decided that first appeal on the merits and held that the District Court did not have jurisdiction to sentence the man.
That question was really left open in the Berman case.
There is a Circuit Court opinion cited in my brief, Bridges against United States wherein the Circuit Court, in reviewing a petitioners -- an appellant's claim of invalidity upon a remote collateral attack upon a judgment, held that the failure of that appellant to have made an appeal when the Court sua sponte had entered a corrected judgment months subsequent to the original judgment of conviction was thereafter precluded or at least prejudiced by his failure to have appealed from that corrected judgment.
From the indications in these cases, it is apparent to petitioner that where -- not only the petitioner asks that the judgment be corrected by any reason but where the Court sees fit to grant that application and thus enter an amended judgment thereon.
And it is noted in the record on appeal herein that in the oral argument that preceded the entry of this corrected judgment, that the history of the dismissal of this appeal and the desire of the petitioner to appeal claimed errors of the original conviction, was urged before the trial court.
And the trial court in its colloquy or pronouncements to counsel took note of the fact that the defendant desired to have such an appeal.
It is submitted by petitioner that if that second judgment did not open up the petitioner's right to appeal from the original conviction -- it's -- in its entirety that the effect of that second appeal should at least be considered equivalent to a collateral attack upon that judgment rather than to burden the petitioner appellant to go back to the District Court and make a motion under Section 2255 of -- I believe, Title 18 to set -- assign the judgment of conviction on the ground that it was obtained by the use of illegally seized evidence that where he --
Unknown Speaker: (Inaudible)
Mr. Bernard B. Polak: The remedy of 2255, I have doubts about even that Your Honor.
All of these things are doubtful to me.
Justice Hugo L. Black: (Voice Overlap) -- suppose you did, would it have any effect on this case?
Mr. Bernard B. Polak: If it is available, it would seem a matter of judicial economy to consider on a direct appeal that which could be treated upon a collateral attack.
There must be some effective meaning to the statement of this Court in United States against Robinson, that where there is an error of constitutional degree that the defendant is not barred and precluded by the fact that the 10-day rule may serve to preclude his direct appeal because in such an injustice, this Court has said, “The aggrieved defendant can go back to the District Court for collateral relief.”
Justice Hugo L. Black: Do you think argument or the holding either or the philosophy of the Noia case has any relationship to that question?
Mr. Bernard B. Polak: Well it would seem contrary, Your Honor.
It would seem that -- that the Fay against Noia case would indicate that it is a constitutional -- I'm sorry, a jurisdictional matter to have this.
But it -- what -- we really are --
Justice Hugo L. Black: Jurisdictional matters to do what?
Mr. Bernard B. Polak: To file your appeal within the 10-day period be it as it may.
It is our contention that in as much as the 10-day rule is a rule and not a statute, that the rule is subject to interpretation to a greater degree than a statute could be interpreted, and that --
Justice Hugo L. Black: But suppose -- suppose that there was a 10-day rule appeal in that case and they were delayed and if we prove them that that confession had been coerced as it was in Brown against Mississippi.
Would you say that that could be in fact collaterally?
Mr. Bernard B. Polak: I would certainly urge that point upon this Court and any court where any type of grave constitutional error occurs, it would seem that it is within the province of the Courts of the United States to entertain a claim which a defendant maybe able to substantiate, that his constitutional rights were infringed either by a coerced confession or by an unlawful search and seizure or by any other infringement of any constitutional right of a petitioner.
The --
Justice Hugo L. Black: As I recall, there was much discussion of that type of question in Fay against Noia.
Mr. Bernard B. Polak: I would certainly --
Justice Hugo L. Black: That's a philosophy which you have just expressed in connection with appeals.
The right not to have your constitutional right cut-off and when it is to be cut-off, violated, by delay and put into proceeding, a failure to raise it at the proper moment.
Mr. Bernard B. Polak: Well -- we'll -- we -- we'll we have to concede that, Your Honor.
Justice Hugo L. Black: I mean (Inaudible) --
Mr. Bernard B. Polak: To the extent --
Justice Hugo L. Black: (Inaudible) -- I think you'd be very fortunate to concede it.
Mr. Bernard B. Polak: Well, it's there.
The decision is on the record and the question is whether or not that that should be applied herein.
We still have the matter that the Court was open only three hours on a Saturday.
The sentence was admittedly pronounced in the afternoon.
There -- if the defendant is to have the benefit of 10 full days, should that be precluded by the fact that the time was not a full 10 days but even a half hour or an hour or less than 10 full days.
Justice William J. Brennan: Because I gather (Inaudible) --
Mr. Bernard B. Polak: That is a separate point.
Justice William J. Brennan: Yes.
Mr. Bernard B. Polak: There is one --
Justice William J. Brennan: And your other argument is that the actual entry of the fine under the judgment record, however that was done as Justice Goldberg just discussed with you, on the 25th, starts -- the time running from the 25th so again, you're filing another suit here on May 6 for the time, that --
Mr. Bernard B. Polak: That is correct, Your Honor.
There are two separate facets of my argument.
Justice William J. Brennan: And your third -- and your third deals with the -- the disposition of the Rule 35 motion, does it?
Mr. Bernard B. Polak: That is correct, Your Honor.
And I may add a fourth that where the procedural steps are taken to put a case into an appeal court where there is a narrower constitutional degree that is involved that the Court ought to consider it.
Perhaps contrary-wise to the prior rulings of this Court as has been mentioned by --
Justice William J. Brennan: Well, I -- I forgotten, was Robinson, was that a constitutional claim?
In Robinson, I forgot the claims.
Mr. Bernard B. Polak: I don't have that in front of me, Your Honor, the Robinson case, the type of case that was involved.
That appeared to be one only on the calendar and the issue there seemed to be confined to a matter of calendar.
It is -- I -- I'm unable to answer that question.
But, it would seem that if there were any grave constitutional issues in that case that it would be possible to determine that from the record in that case.
And I regret that I'm unable to answer that question of the Court.
It would seem in conclusion that regardless of how a petitioner's right of appeal may expire a normal cause that if he is able to demonstrate some constitutional error involved in the original proceeding in the trial and the trial court therein is willing to enter a corrected and amended judgment even though under Rule 35 on a purely technical point of reduction of sentences.
The fact that a judgment is entered and it is a judgment and a criminal judgment of the District Court that his right to appeal therefrom, even the ordinary right of appeal should be permitted to the extent of at least the constitutional questions that were involved in the original conviction.
It -- it seems that this is what the Court -- the Circuit Court in Bridges against United States meant when it discarded the appellant's later collateral attack when he hadn't made no direct appeal from the corrected judgment that was entered by that court.
And it would seem that whenever any judgment is entered in the criminal docket in that particular case, if the defendant at any stage of the proceeding has been aggrieved by constitutional errors that have contributed to that judgment.
It would seem that the defendant should be able to appeal to the extent of urging those constitutional errors.
Justice Hugo L. Black: Is there any dispute about the reason why this one -- this appeal was one day late?
Mr. Bernard B. Polak: There is none, Your Honor.
That is entirely my own responsibility.
Justice Hugo L. Black: Because of what?
Mr. Bernard B. Polak: Because I left that office at 3 o'clock that afternoon and went home.
And I had been instructed personally to file it, it was supposed to have been taken care of other personnel in the office.
Justice Hugo L. Black: You've been instructed to file the appeal that afternoon?
Mr. Bernard B. Polak: That afternoon, that's right Your Honor and I didn't.
Justice Hugo L. Black: (Inaudible) until Monday.
Mr. Bernard B. Polak: That's right, I let it go.
I was a New York lawyer and I had not been completely apprised of the interpretation and meaning and very terrible consequences of the 10 days and what the meaning was and I followed our usual New York practice which is if time expires on a Saturday, you can do it on a Monday morning.
Justice Hugo L. Black: Then when did you go to the Judge, that amending motion?
Mr. Bernard B. Polak: Immediately after the first appeal was dismissed.
The motion to dismiss the first appeal was made on or about the same day that it was filed which was that following Monday, May 6.
On May 6, the appeal was filed and immediately, the United States attorney moved to dismiss it.
For the purpose of that motion, the Court of Appeals considered that it had jurisdiction at least to decide to dismiss that appeal.
At that point, immediately, we went back to the District Court and moved to amend the sentence under Rule 35.
And as soon as the judgment was entered, we appealed then.
Justice Hugo L. Black: Well, I suppose, if it was wholly without jurisdiction again, jurisdiction whatever that would mean, how can it have been -- had jurisdiction or even had print this?
It was wholly without jurisdiction to do anything about it.
Mr. Bernard B. Polak: The Court did entertain that jurisdiction.
Thank you very much, Your Honor.
Chief Justice Earl Warren: Mr. Gilinsky.
Argument of Theodore George Gilinsky
Mr. Theodore George Gilinsky: Mr. Chief Justice, may it please the Court.
This case is here on a writ of certiorari from the Second Circuit to review two separate dismissals and presents basically two questions.
The first question is, when the last day to file a notice of appeal is a Saturday, whether the notice of appeal filed on Monday will suffice because of -- of a number of reasons either at the New York -- certain courts in New York have a practice where they exclude Saturday or because the clerk's office -- the federal clerk's office in New York was open only half a day on Saturday.
The second appeal which was dismissed presents the second question which in substance is whether an appeal maybe revived after the time -- the 10-day period has expired by a nominal reduction in a sentence.
In other words, may the District Judge deliberately enlarge the period for taking an appeal from 10 days to -- such as this case, a period of a month and a half?
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: He could have reduced it to zero.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: On the -- the rule does not provide for vacation, Your Honor.
The rule provides that he may reduce a sentence within 60 days of the sentence or it may be reduced 60 days after its return from the Court of Appeals or 60 days after this Court would deny it.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: Well, that he can do any time.
That 60 days -- if it's an illegal sentence, 60 days has nothing to do with it.
Now, he can do that -- any judge can eliminate an illegal sentence on a motion at anytime and that's the first sentence of Rule 35.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: Well --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: Well, I -- I'm -- I'm not sure that you and I are talking about the same thing.
We say vacate but I would -- I would say this, I think a judge has the power within this 60-day period, which measure from different spaces, to reduce a sentence to zero.
Now, that may be a vacation and put a man on probation, let's say, or something like that.
There's no -- there's no indication in the rule that would forbid.
As a matter of fact, that this is part of the purpose of the rule that the judge can have a second thought so to speak on the extent but it was limited deliberately as to time because as a matter of fact, the old practice was that they would extend the term to hold it over the head of the defendant and the idea was to get rid of this and to allow the District Judge only 60 days within which to do this type of thing.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: I don't think it could be done in those terms.
There -- there is a way it could be done.
I mean this isn't a problem of rules.
What you are talking about is something -- for instance, there is no question that on the collateral attack, which can be entered at anytime in this -- in the course of a -- a proceeding, that if there is something inherently wrong which have raised the judge has a right to vacate it.
Justice Arthur J. Goldberg: Yes.
Mr. Theodore George Gilinsky: Once that's done, I would assume, although I think it -- it would take some peculiar and unique circumstances to -- as a matter of fact, I would be surprised to find a judge merely entering a judgment of acquittal except in the case where the indictment, let's say, was absolutely invalid and --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: -- and so that what you would get to eventually is that what -- what's happening in this kind of a case is that they got an illegal -- illegal sentence so there are a number of ways to get to this.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: Well, as I say I think that there are ways that this can be done.
I don't have any question.
Justice Arthur J. Goldberg: (Voice Overlap) --
Mr. Theodore George Gilinsky: I have no question about its jurisdiction to do it if it's properly presented to him and I -- there's no --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: I don't think that we've ever questioned this one.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: I beg your pardon?
I don't -- I'm -- I'm not sure that you and I -- what -- I'm not certain what you mean when you say a mistake.
If you mean that a -- a judge has looked at either the sentence has decided that this man -- well, we're talking about two things, I think.
The problem of sentence, that is whether a man should be punished for a crime is -- is something that is separate apart from whether or not he is guilty even.
And -- and --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: Well, I'm not sure but I think it would arise in the same type of -- I -- I know of no case like this but I think that what you are talking about could arise in a type of proceeding that gives a judge jurisdiction power to grant a new trial.
And in that circumstance -- I mean after all, once you granted a new trial, you start fresh and -- and then I go back to my example of an invalid indictment or for any reason the judge enters a judgment of acquittal.
Now, the Government may be very unhappy that we haven't had a chance to even prove it nor we're -- we're suddenly thrown out.
We have no right to appeal and so forth but I have no doubt that the District Judge has power in certain circumstance.
Whether or not in all circumstances, I think would be questionable because I think it depend on the facts.
In other words, I don't think -- well, I don't -- I can't imagine, first of all, any judge just doing it for no reason.
Once you get to some reasons, you see, you find ways to do this.In other words, if there is an indictment that's invalid, I can find reason but I mean if -- if you just have a whim, this is difficult for me to -- to work with.
In any event, they -- the -- the second issue presented by the second appeal in this case really comes down to whether the District Judge can purposely enlarge the period from 10 days to, as in this case, approximately a month and a half.
At the outset, I think I should make the -- the Government's position clear about two matters.
One is the rules.
We do not say that the rule should not be changed or that this rule is the best rule that could be devised and certainly, the Rules Committee have these rules under consideration and that's why they're rules so that they'd be -- can be continually looked at in view of our experience and possibly some changes made.
The second thing is that we feel that in 1960, when this Court decided United States versus Robinson, that to a great extent, the excuses that are now offered in this case are of no different caliber or no different substance than the excuses that we're offered in Robinson and at that time, it was decided that the period for appeal cannot be enlarged, where the failure to take the appeal was due to the neglect of counsel even though it was excusable neglect of the counsel.
Justice William J. Brennan: Mr. Gilinsky, do you -- do you recall, I noticed the opinion doesn't indicate, what were the merits of Robinson's claim, were they constitutional?
Mr. Theodore George Gilinsky: There were no merits in -- in the -- in the case, Your Honor, because it arose on a notice of appeal.
No one ever --
Justice William J. Brennan: I see, (Inaudible)
Mr. Theodore George Gilinsky: You -- you see, one of the things I --
Justice William J. Brennan: What happened there is that it was appealed --
Mr. Theodore George Gilinsky: It was -- it was a manslaughter case in the District of Columbia.
Justice William J. Brennan: It was a murder case in which he got a manslaughter conviction.
Mr. Theodore George Gilinsky: That's right.
Justice William J. Brennan: We don't know what (Inaudible) --
Mr. Theodore George Gilinsky: What he would have raised.
Justice William J. Brennan: -- (Inaudible)
Mr. Theodore George Gilinsky: No, no.
As a matter of fact, this is one of the problems you see about petitioner's new suggestion of -- of collateral attack.
You see, what really happens on a notice of appeal is that they're just a paper file.
There's no -- one of the things we got away from in the rules was the -- the idea of setting forth why a person has to take an appeal, setting out the reasons and so forth.
So that all that the petitioner has to file is a paper saying, "I want to take an appeal."
Doesn't -- he doesn't have to present any issues.
So that what the Court of Appeals has in most cases is merely a notice of appeal saying, "I want to take an appeal."
They get the docket entries from below and the Government's motion to dismiss because of the timeliness of the -- of taking the appeal, so that the question of the real issues which may or may not be involved in some case are never really truly presented to the Court of Appeals and in an appellate procedure.
Justice Hugo L. Black: Suppose this man had had no lawyer at all and he had not taken the appeal within 10 days, that's all that occurs, the court sends him, he had no lawyer, could the court have dismissed his appeal because he filed it late?
Mr. Theodore George Gilinsky: Well, I have to make two assumptions but I would say yes.
But I'd like to explain.
Justice Hugo L. Black: I'm -- but the reason I'm asking you is because the rule says --
Mr. Theodore George Gilinsky: Well, that's what I was going to explain.
Justice Hugo L. Black: -- (Voice Overlap) judge to take the appeal first.
Mr. Theodore George Gilinsky: That's right.
Well, I was going to explain your --
Justice Hugo L. Black: So you'd be much better off without a lawyer, wouldn't you?
Mr. Theodore George Gilinsky: That's right.
What -- what you're saying is that maybe the -- the rule should be changed so that everybody has to take appeals within 10 days whether they got a lawyer or not.
And -- and in other words, if you -- if you stand before the bench and you have no lawyer and you -- and you are sentenced.
The judge then is required to ask you, "Do you want to take an appeal?"
And if you say yes --
Justice Hugo L. Black: But if the lawyer -- but if --
Mr. Theodore George Gilinsky: -- he tells the clerk.
Justice Hugo L. Black: -- he does have a lawyer and he suggests it, then he's out of luck.
Mr. Theodore George Gilinsky: Well, I don't think it's -- well, yes and no.
Justice Hugo L. Black: (Voice Overlap) --
Mr. Theodore George Gilinsky: I -- I don't think that --
Justice Hugo L. Black: -- he can't get his constitutional question decided.
Mr. Theodore George Gilinsky: Well, I'm not sure that we're -- we're talking about the same thing.
We're talking about a constitutional question.
Now, let me --
Justice Hugo L. Black: Well, isn't there a constitutional question involved in this one?
Mr. Theodore George Gilinsky: Well, I -- we'd have to -- well, it's not as plausible -- possible but it -- it's -- it's not -- I mean, I suppose in any -- any time you say you have a search and seizure case, you have a constitutional question.
I mean if you want to take this broad view, you -- you have a question.
But if you go to the facts of this case, I don't believe you have a --
Justice Hugo L. Black: You may -- may be at a lose if you had a (Voice Overlap) --
Mr. Theodore George Gilinsky: Well, no, I don't -- not only lose.
I don't think that -- I'm not sure that this is -- comes even close to being the kind of fundamental error that the Court would consider even on a collateral attack.
But as I say, you have to get to the facts on this.
Justice Hugo L. Black: You mean -- you mean -- suppose the record shows clearly that he had been denied his rights under the Fourth Amendment, do you think he could it attack collaterally?
Mr. Theodore George Gilinsky: Oh, yes.
Justice Hugo L. Black: Because of his lawyer's mistake here?
Mr. Theodore George Gilinsky: Yes.
Justice Hugo L. Black: You do?
Mr. Theodore George Gilinsky: Yes.
Justice Hugo L. Black: How?
Mr. Theodore George Gilinsky: Well, you -- you --
Justice Hugo L. Black: And I hate to (Voice Overlap) --
Mr. Theodore George Gilinsky: -- pose the question -- you pose the question of a -- of a clear violation of a constitution.
I would assume if you have a clear violation, yes, you can always attack.
As a matter of fact, 2255 in Title 28 says that you can raise -- it says in so many words, constitutional issue.
I mean, we can't -- I can't argue that -- against that.
Justice Hugo L. Black: Well, when -- when we get through, if we dismissed that then, I will presume, this man could still raise the 2255 question.
Mr. Theodore George Gilinsky: I -- there is no -- there is no doubt in my mind.
There's never been any doubt in the Government's mind in our brief that we -- we suggest -- we'd said this that if that -- there are a number of remedies for the --
Justice William J. Brennan: So, Mr. Gilinsky, if that should happen, then I take it -- and the Government interposed -- well, he didn't take an appeal, then, the (Inaudible) problem would arise, wouldn't it, this 2255, whether or not he's fairly to take an appeal, denies them as it would not, perhaps, in a review of the state proceeding in a federal habeas corpus, the review of this constitutional question.
Mr. Theodore George Gilinsky: I -- we've had -- we've had the problem of people who have not taken appeals where constitutional issues are involved.
Actually, I -- I think the answer gets down to this that it really doesn't make any difference whether you've taken an appeal even.
If you really have -- in other words, what I'm saying is this, if you really have the issue --
Justice William J. Brennan: Even though you never attempted to face the issue.
Mr. Theodore George Gilinsky: That -- regardless of -- if you -- even if you'd taken an appeal, you could still go back, that's what I'm saying and even if it hadn't been raised on appeal.
So certainly, if -- if that's the case, then the question of whether the appeal was denied certainly can't change this status.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: Oh, this --
Justice Arthur J. Goldberg: Could you tell me about this.
Mr. Theodore George Gilinsky: Yes, I will.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: Yes.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: Yes.
I -- well, this -- this is a civil lien.
And it -- it really isn't involved in this case but -- well, let's say, in -- in your jurisdiction in Chicago, for example, they had a number of places.
You had attorn, titles, and you have title companies, in some places you have dockets for types -- other types of title.
Those people who have judgments of money value against them, in order to docket it as a lien, it has to be docketed in a special book so that it will be picked by abstractors who -- a house or something like that or if somebody wants to check your credit or something like that, I suppose they could it.
But this has -- and this is done usually and not in a federal -- this has nothing to do with a federal clerk's office or anything else because the problems of liens are usually -- are controlled by this county or state organization.
So what happens is that when you have a -- a case where a fine is entered or it happens a number of times in -- all liquor violations you get fines of this type of thing, that's done as a -- or tax cases is automatic.
They do this all the time.
They take the tax judgments over and enter them as a lien.
Now, that judgment, that lien entry, judgment as a lien, has absolutely no bearing on -- on the question here.
In other words, the entry of a judgment somewhere else to perfect a civil lien and I would assume that this judgment would be good as far as a criminal is concerned even if this entry had never been made, has absolutely nothing to do with a question of taking a criminal appeal.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: It's on -- this is the original one.
And that's always done.
I mean that's where the clerk stands right on.
You can find out --
Justice John M. Harlan: (Inaudible)
Mr. Theodore George Gilinsky: Pardon me?
Justice John M. Harlan: (Inaudible)
Mr. Theodore George Gilinsky: Robinson flatly controls the first issue in this case.
And the second issue which is the question of going back and getting a new judgment, I think is -- is directly contrary to the -- the rule which says that District Judge may not enlarge the time because to allow this sort of thing would as in this case.
He got a -- a month and a half.
Justice Arthur J. Goldberg: What about the (Inaudible)?
Mr. Theodore George Gilinsky: Well, I don't doubt that if there's something wrong with the resentence, he has a right to appeal from that and we say so but that does not open up, that does not open up the whole conviction on -- or the whole or the original judgment for appellate review.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: Well, I --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: I -- I only -- I only concede he is right if he has a question relating to the second -- to the reduction but when you realize that he asked for a day or two and he got four months, he is hardly in a position to -- to make any serious argument about the reduction and it's purely discretionary with the judge.
I don't know what he --
Justice John M. Harlan: (Inaudible)
Mr. Theodore George Gilinsky: Well, the Government should have possibly because we should have made this kind of argument.
But I don't believe that this opens up the right to appeal.
Unknown Speaker: (Voice Overlap) --
Mr. Theodore George Gilinsky: We've this whole series of cases as a matter of fact and we cite them in our brief where people have used all types of devices to reenter something to get started again just because of this type of thing.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: Well, this -- that's what this case -- this judge did.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: No.
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: We -- we've had judges -- we've cited cases where judges have deliberately reentered orders or reentered something in order to give -- but I can't see that that would make any difference really what you do.
I mean if the whole purpose -- here, the judge is deliberately enlarging the man's time to take an appeal.
The rule -- I think in unmistakable terms, says, that the judge may not enlarge the time for taking an appeal because otherwise -- you see there're two sides to the coin.
And the fact -- and if you're going to allow the judge to enlarge it, you -- you're also going to allow him the withhold it.
And this is the kind of thing that we've tried to avoid in the -- in the whole setup of criminal rules that -- that it shouldn't be a matter that you just go in and have to ask leave of the judge to take an appeal.
You have 10 days and you take it.
It isn't something he can give you and it isn't something he can take away from you.
And in effect, that is what petitioner is asking for in that -- in that regard.
Justice Arthur J. Goldberg: What was the nature of the (Inaudible) --
Mr. Theodore George Gilinsky: Oh, I think it's fairly obvious what they -- what had happened.
The United States Government filed a motion -- have filed an affidavit -- we had to file a motion to dismiss because it doesn't -- Court of Appeals doesn't know what happened unless we file a motion to dismiss.
If you see our motion to dismiss, you will see that we outlined what had happened previously.
And immediately, the -- and filed the evidence, second panel, a different panel of the Court of Appeals, they could see that what this was, it was an attempt to take a second appeal.
If -- if -- let me --
Justice Arthur J. Goldberg: (Inaudible)
Mr. Theodore George Gilinsky: If --
Unknown Speaker: (Inaudible)
Mr. Theodore George Gilinsky: Well, let me put this case.
Unknown Speaker: (Inaudible)
Mr. Theodore George Gilinsky: It's lack of jurisdiction of the original conviction.
Unknown Speaker: (Inaudible)
Mr. Theodore George Gilinsky: If --
Unknown Speaker: (Inaudible)
Mr. Theodore George Gilinsky: Yes.
Unknown Speaker: (Inaudible)
Mr. Theodore George Gilinsky: If what you are posing had been the case, in other words, if there was some error in the reduction process that could be appealed, certainly, it would have been incumbent upon the petitioner to say something about that and he didn't say anything about that when he filed his affidavit.
He just recited again his excuses for not taking the original appeal.
So that I think the Court of Appeals was -- was well-advised to dismiss the -- the second one.
The petitioner argued that -- I should mention the things it covered in the brief.
One is this problem of Saturday in New York courts.
Of course, it depends upon which New York court you look to, I suppose because some New York courts are open all the time, Saturdays and Sundays.
So that if you -- if you start to adopt some type of procedure related to local practice, I think we would have a hodgepodge of taking appeals.
The problem of full days -- I'd also do not think is in this case because the rule certainly contemplate that even Saturdays and Sundays in the middle of the period are to be counted, he is not merely entitled to 10 full business days.
The question of half a day was also recognized by the rules because the rule specifically stated that a half a day should be counted as a full day.
In any event, let me say this that if this petitioner had made any real effort to file this notice of appeal on Saturday --
Justice Hugo L. Black: You mean of his lawyer?
Mr. Theodore George Gilinsky: His lawyer or the petitioner, that's not unusual, Mr. Justice Black.
In cases where defendants are out on bail for them to be constantly calling their lawyer about -- about notices of appeal, this is rather common and it's -- it's common all the way through in criminal cases.
Justice Hugo L. Black: Well, the rule certainly did try to take some precaution to see that a defendant --
Mr. Theodore George Gilinsky: Yes, they did.
Justice Hugo L. Black: -- would not lose his right of appeal because of his ignorance, isn't it?
Mr. Theodore George Gilinsky: That's correct.
That's correct.
So, that have -- and I would say something further about Saturdays.
As a matter of policy, it might be wise to eliminate Saturdays in the proposed amendments to the criminal rules aren't going to eliminate Saturday from a period of computation just as it's been eliminated in the civil cases.
But we think that thing should be handled -- it's going to be handled that way of -- by the regular rule making process.
Well, the second issue I -- as I --
Justice William J. Brennan: I gather -- and I gather your argument, do you suggest (Inaudible)?
Mr. Theodore George Gilinsky: Oh, I think so.
As a -- he can raise it that way or he can raise it under Rule 35 if he has grounds for that --
Justice William J. Brennan: (Inaudible)
Mr. Theodore George Gilinsky: -- or he can --
Justice William J. Brennan: (Inaudible)
Mr. Theodore George Gilinsky: We've never -- we've never felt he could but --
Justice William J. Brennan: (Inaudible)
Mr. Theodore George Gilinsky: -- some -- sometimes --
Justice William J. Brennan: -- if we didn't.
Mr. Theodore George Gilinsky: Either way if it comes up.
Justice William J. Brennan: You mean Rule 35 has been treated as a 2255 to whatever happens (Inaudible)
Mr. Theodore George Gilinsky: Right.
Justice William J. Brennan: (Inaudible)
Mr. Theodore George Gilinsky: That's correct.
Or even coram nobis if we -- if it has to go back.
Justice Tom C. Clark: (Inaudible)
Mr. Theodore George Gilinsky: Well, not as yet.
Justice Tom C. Clark: I mean in the last day on the motion to appeal?
(Inaudible)
Mr. Theodore George Gilinsky: Well, if -- no.
What he asked for in his motion was a reduction of -- he asked for a number of things in relief to the District Judge.
He asked that his sentence be reduced.
He asked that if that not be so that he'd be allowed an extended period of time before he started to serve his sentence, in other words, time to adjust his affairs.
This is the type of relief that he asked for at the time of the motion under Rule 35.
He didn't -- he didn't ask for a new trial or something like that in the sense of --
Justice Tom C. Clark: Go to the merits.
Mr. Theodore George Gilinsky: Go to the merits because -- well, some of the merits, of course, are bound to come out every time you -- you start talking about it but I don't think that they were primarily there.
And certainly, if -- if that's what he meant, I think he could've made himself a little more clear as to -- that he didn't -- in other words, if he -- what he really meant, instead of Rule 35 reduction, was that I want to attack my conviction now collaterally.
I think, at least saying something like that would've alerted the -- the judge to the problem that he was presenting but I don't think you'll find that in this motion at all or in these papers that he filed at that time.
So that we feel that this would fly in the face of all the rules of -- that -- on the time and unlike the civil cases by the way which this Court has had recently, there was absolutely nothing done here during this period, so that what -- what happens is you really have to revive it.
Now, the last point that I would like to make is that we think this is evaluation for committee of rules and the question whether to extend times, whether to give everybody appeals maybe within 10 days, cut the whole thing off --
Justice William J. Brennan: Do you know when this (Inaudible)
Mr. Theodore George Gilinsky: There are -- yes.
There is one and there's no question that this consideration of Saturday, that's all that had been printed by the proposed -- and we cite that in our brief.
The appellate rules are under another Advisory Committee and their treating of the whole may have not published any affairs but you can see in the articles that this problem is under consideration.
In some, we think that the petitioner is proposing a series of strained and technical interpretations to -- would create just a hodgepodge in -- in the manner of taking appeals which we think are rather simple.
And to throw out these rules and standards, would really turn us back to where we were over 30 years ago when you used to have to ask, leave to appeal and when you used to take periods of time and extend them beyond.
And we think all of this was done away with when they started the new civil rules.
And we respectfully submit that both dismissals should be affirmed.
Chief Justice Earl Warren: Mr. Polak, you have one minute, I think, according to the time, if you wish to use it.
Rebuttal of Bernard B. Polak
Mr. Bernard B. Polak: First of all, I would like to call the attention of the Court to Folios 640 through 646 of the printed transcript of record in which the consideration of the defendant's desire to again appeal was raised orally upon the return of the motion and was discussed between the Court and counsel for both sides to eliminate any doubt as to that particular point.
We did not get it into the motion papers.The motion was a several pronged motion.
There were other problems affecting the defendant, namely the prospect of immediate surrender which would have involved losses of hundreds of thousands of dollars to his creditors and to his family.
Justice Tom C. Clark: What page is that?
Mr. Bernard B. Polak: Pages 83 and 84.
If I may just have a word, it is --
Chief Justice Earl Warren: You -- you may.
You may just -- go ahead.
Mr. Bernard B. Polak: It is our contention that with the second appeal, that in as much as it is a judgment of the District Court that the defendant contending that the illegal search and seizure was an element that entered into judgment even though it was a reduced sentence and a reduced fine.
Still, it was a judgment of the District Court.
The defendant complains of constitutional error that entered to it and therefore, he should be permitted to at least raise the point of constitutional error --
Justice William J. Brennan: What if he didn't?
Mr. Bernard B. Polak: -- in the opinion.
Justice William J. Brennan: (Inaudible)
Mr. Bernard B. Polak: It --
Justice William J. Brennan: (Inaudible)
Mr. Bernard B. Polak: It permits us to raise the point on one proceeding, the appeal in the Court of Appeals rather than to have to go down stairs all the way again and start going up.
Justice William J. Brennan: That's the only difference, isn't it?
Mr. Bernard B. Polak: That is the only difference, a matter of judicial economy.
Chief Justice Earl Warren: Very well.
We'll adjourn.
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BERMAN v. UNITED STATES. The Oyez Project at IIT Chicago-Kent College of Law. 28 April 2013. <http://www.oyez.org/cases/1960-1969/1963/1963_245>.
BERMAN v. UNITED STATES, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1960-1969/1963/1963_245 (last visited April 28, 2013).
"BERMAN v. UNITED STATES," The Oyez Project at IIT Chicago-Kent College of Law, accessed April 28, 2013, http://www.oyez.org/cases/1960-1969/1963/1963_245.