Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

BERMAN v. UNITED STATES

decided: June 22, 1964.

BERMAN
v.
UNITED STATES



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

Author: Per Curiam

[ 378 U.S. Page 530]

 The judgment of the Court of Appeals for the Second Circuit is affirmed. United States v. Robinson, 361 U.S. 220.

Disposition

Judgment affirmed.

MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, and MR. JUSTICE GOLDBERG join, dissenting.

This case seems to me to be decided on the premise that it is more important that the Federal Rules of Criminal Procedure be slavishly followed than that justice be done. I cannot agree to any such principle and therefore dissent.

Petitioner was convicted in the United States District Court for the Southern District of New York on two counts -- one of possessing counterfeit currency and one of receiving stolen securities. He was sentenced to concurrent prison terms of two years on each count and a total fine of $2,000. He decided to appeal. Federal Rule of Criminal Procedure 37 (a)(2) requires a notice of appeal to be filed within 10 days. Here the tenth day fell on

[ 378 U.S. Page 531]

     Saturday. On the preceding Friday an associate to whom petitioner's attorney had given the notice of appeal for filing left the office with a fever and went home to bed, where he stayed until late Sunday. Because of the associate's illness, the notice was not filed on Saturday; instead, it was filed Monday morning. The Court of Appeals, on motion of the Government, dismissed the appeal on the ground that under Rule 37 (a)(2) and Rule 45 (a) the notice for appeal had been filed one day late. Two days after this dismissal, petitioner, as authorized by Fed. Rule Crim. Proc. 35, moved in the District Court for reduction of the sentence. This motion, with supporting affidavits, pointed out to the District Court that petitioner's appeal had been dismissed because it was one day late. Indeed, a principal ground urged upon the court for acting on the motion was that granting the motion would enable petitioner to appeal from the amended sentence and challenge the validity of the original conviction. The prosecuting attorney objected, saying, "I think he has had his one shot, and it's all over. He has no further right to appeal if the sentence is reduced." The District Judge, stating that his understanding was "contrary" to that of the prosecutor, granted petitioner's motion and, exercising his authority under Rule 35, reduced the sentence on each count from two years to one year and eight months and reduced the fine on each count. The following day, petitioner's counsel filed a second notice of appeal, but again the Court of Appeals granted the Government's motion to dismiss, rejecting the District Court's holding that the time for appeal began to run anew upon the partial rejection of the defendant's Rule 35 motion. This Court now affirms with the simple citation of United States v. Robinson, 361 U.S. 220. Because I think that United States v. Robinson should be confined to its particular facts, and for a number of other reasons, I would reverse the judgment of the Court of Appeals.

[ 378 U.S. Page 532]

     In this case petitioner, Berman, has contended since the time of his first appeal that evidence introduced at his trial had been obtained as a result of an unlawful search and seizure and that a statement by way of a confession made by him was involuntary and therefore should have been excluded as a violation of the Fifth Amendment. The most perfunctory review of this record shows that neither of those two questions is frivolous.*fn* In Fay v. Noia, 372 U.S. 391, this Court, after an exhaustive discussion of the question and the citation of many prior decisions of this Court, held that a defendant who had been convicted by use of a coerced confession in a state court could obtain relief in a federal habeas corpus proceeding notwithstanding the fact of a procedural default in the state courts which barred any challenge to the conviction in those courts. It is unthinkable that the same rule should not be applied in federal courts so as to grant relief to a defendant who has been denied a federally guaranteed right because of his failure to comply with the rule which requires the notice of appeal to be filed within 10 days. It is particularly abhorrent to think that such a rule can be enforced in the federal court where, as here, the sole reason for cutting off the defendant's right of appeal to the Court of Appeals is the fact that, after the defendant has decided to appeal, the lawyer to whom he entrusts the duty of physically transporting his notice of appeal to the Court of Appeals fails to get it there because he is taken ill.

[ 378 U.S. Page 533]

     Moreover, the Court in the Robinson case, which the Court now holds is controlling here, expressly stated, 361 U.S., at 230 n. 14, that the allowance of an ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.