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Government of The Virgin Islands v. Felipe Ferrer, 275 F.2d 497, 3rd Cir. (1960)
Government of The Virgin Islands v. Felipe Ferrer, 275 F.2d 497, 3rd Cir. (1960)
2d 497
Frank Padilla, Charlotte Amalie, St. Thomas, Virgin Islands, U.S.A., for
appellant.
Leon P. Miller, Charlotte Amalie, St. Thomas, Virgin Islands, U.S.A., for
appellee.
Before MARIS, WOODBURY and FORMAN, Circuit Judges.
MARIS, Circuit Judge.
On appeal the defendant contends that the judgment cannot stand because the
assault upon the police officer was justified in that the arrest was illegal.
However, we do not reach the merits of this contention since the appeal must
be dismissed as moot. The Government of the Virgin Islands has filed a motion
for such dismissal alleging, inter alia, that the case is moot because the
defendant has paid the fine in full, not having obtained a stay under Rule 38(a)
(3) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. That rule provides,
inter alia, that if an appeal is taken a sentence to pay a fine may be stayed by
the district court or by the court of appeals upon such terms as the court deems
proper and that, pending the appeal, the court may require the defendant to pay
all or part of the fine in the registry of the district court. The record discloses, as
the Government contends, that neither the district court nor this court granted
such a stay and that the fine was paid in full.
3
This court had occasion in Bergdoll v. United States, 3 Cir., 1922, 279 F. 404,
certiorari denied 259 U.S. 585, 42 S.Ct. 589, 66 L.Ed. 1076, to consider
whether an appeal was moot when the fine was paid before determination on
appeal. When that case was called for argument it appeared that the defendant
had paid the fine imposed under the judgment sought to be reviewed. The
appeal was ordered dismissed as moot on the ground that the voluntary
payment of the fine satisfied the judgment against the defendant and precluded
review of the conviction since there was no longer a subject matter upon which
the judgment of this court could operate. See also Hanback v. District of
Columbia, D.C.Mun.App., 1943, 35 A.2d 189; Gillen v. United States, 9 Cir.,
1952, 199 F. d 454; Pennywell v. McCarrey, 9 Cir., 1958, 255 F.2d 735, 17
Alaska 580; and Annotations 18 A.L.R. 867; 74 A.L.R. 638; 1 L.Ed.2d 1876.
The case is analogous to that of a prisoner who has served his sentence of
imprisonment in full prior to the determination of his appeal. St. Pierre v.
United States, 1943, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199; Williams v.
United States, 9 Cir., 1958, 261 F.2d 224, 16 Alaska 112, certiorari denied 358
U.S. 942, 79 S.Ct. 349, 3 L.Ed.2d 349; City of Seldovia v. Lund, D.C.Alaska
1956, 138 F.Supp. 382; Hill v. United States, D.C.Mun.App., 1950, 75 A.2d
138.
It is true that if a defendant on appeal is able to show that his conviction entails
collateral legal disadvantages in the future which survive the satisfaction of the
sentence imposed upon him it cannot be said that his case is moot. Fiswick v.
United States, 1946, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196; United States v.
Morgan, 1954, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248; Pollard v. United
States, 1957, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393; Tatum v. United
States, D.C.Mun.App., 1952, 88 A.2d 495; Davis v. District of Columbia,
D.C.Mun.App., 1952, 91 A.2d 14. There is here, however, no contention that
the judgment sought to be reviewed affects any future rights.
It was urged in argument that the case is not moot because the defendant has
incurred a moral stigma which he has the right to clear. But this contention was
expressly rejected by the Supreme Court in St. Pierre v. United States, 1943,
319 U.S. 41, 43, 63 S.Ct. 910, 911, 87 L.Ed. 1199, in which case the court said
'But the moral stigma of a judgment which no longer affects legal rights does
not present a case or controversy for appellate review.' In this respect we repeat
what was so aptly stated in State v. Cohen, 1921, 45 Nev. 266, 272, 201 P.
1027, 1029, 18 A.L.R. 864:
6
'* * * Appellant's opportunity to relieve himself of any odium that may have
attached to his name on account of his conviction was lost by his failure to
avail himself of the procedure provided for staying execution of judgment,
pending an appeal.'
At argument counsel for the defendant stated that he had incorporated into the
notice of appeal the statement 'The defendant by this instrument request the
court of appeals to stay the fine imposed by such terms as the court deems
proper.' This, however, was wholly ineffective to secure a stay. For the request
was incorporated (quite improperly, see Form 26 in the appendix to the Federal
Rules of Criminal Procedure) in the notice of appeal which was filed with the
clerk of the district court as required by Rule 37(a)(1) of the Federal Rules of
Criminal Procedure. Thus it did not actually come to the attention of this court
until the argument of the appeal on January 26, 1960, long after the fine had
been paid in full.
How counsel for the defendant expected this court sitting in Philadelphia to
know of and act upon an application for a stay which he filed in the district
court in Christiansted more than 1700 miles away he does not say. If he had
wanted to bring his request to the attention of this court to the end of securing a
stay from us one would think that he would have forwarded a written motion
for such relief to our clerk in Philadelphia in compliance with Rule 30 of this
court, 28 U.S.C.A. Nor does counsel explain why he did not seek a stay from
the district court in which he filed his application and which would have been
empowered to grant it if requested to do so. See Rule 38(a)(3) of the Federal
Rules of Criminal Procedure. We need only add that the district court properly
ignored the defendant's request for a stay since it was not addressed to that
court.
We conclude that the fine having been paid in full, no controversy remains for
determination and the appeal is moot. Accordingly, we need not consider the
other grounds upon which the Government relies in support of its motion to
dismiss the appeal.
10
One more matter must be considered, however. After the oral argument in this
case the defendant filed a petition for leave to continue in forma pauperis. This
late action was apparently taken in response to another ground relied upon by
the Government for dismissal, namely, that, since the defendant on this appeal
asks us to hold that the finding of the district court against him is not sustained
by the evidence, it was incumbent upon him to procure and file a transcript of
the evidence and to incorporate the pertinent parts of it in the appendix to his
brief, all of which he failed to do. As a matter of fact, the defendant's appendix
contained only some docket entries and a so-called 'Condensed Statement of
the Testimony' prepared by his counsel which the Government in its brief states
does not accurately reflect the actual testimony and which, of course, had no
proper place in the appendix. (See Rule 24(2)(e) of this court). Under these
circumstances it would have been impossible for this court to consider the
merits of the defendant's appeal even if it were not otherwise moot. Chase v.
African Methodist Episcopal Church, 3 Cir., 1940, 108 F.2d 977, 2 V.I. 411.
But since, as we have seen, it is moot, it would be footless to grant the
defendant leave now to proceed in forma pauperis even assuming that his
application was timely.
11
The defendant's application for leave to prosecute his appeal in forma pauperis
will be denied and his appeal will be dismissed.