Petition — Siviglia v. United States

92-1130 "Supreme Court, U.S.

FILED

NOV 10 1962

NO.

: . AL=XANDER L. STEVAS

4 October Term, 1982 ss

JOSEPH M. SIVIGLIA,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

SE Se bt Nee ee

Respondent.

$ PETITION FOR WRIT OF CERTIORARI

. TO THE

& UNITED STATES COURT OF APPEALS

e FOR THE

re. TENTH CTRCUIT

(Decision En Banc, June 23, 1982)

(Petition for Rehearing

Denied En Banc 10 September!982)

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ROGER S. HANSON, ESQ.

518 South Broadway

Santa Ana, California

92701

(714) 558-0921

Member of Bar

U.S. Supreme Court

Attorney for Petitioner

sod

.NO.

October Term, 1982

JOSEPH M. SIVIGLIA,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE

TENTH CIRCUIT

(Decision En Banc, June 23, 1982)

(Petition for Rehearing

Denied En Banc 10 September1982)

ROGER S. HANSON, ESQ.

518 South Broadway

Santa Ana, California

92701

(714) 558-0921

Member of Bar

U.S. Supreme Court

Attorney for Petitioner

In accord with Rule 21, Rules of the

Supreme Court of the United States, petitioner

avers the following:

(a) Questions Presented for Review:

This entire Petition for Certiorari seeks a

nationwide interpretation of Federal Rule Crim-

inal Procedure 33, under an existing conflict

in the Circuits, where the U.S. 10th Circuit

en banc has ruled that it has permanently lost

jurisdiction of the appeal on the merits by

granting a motion to remand and it includes

the following subsidiary issues/questions$

1. Whether a United States Court of

Appeals should deny without prejudice a motion

to remand a pending appeal in a Federal Crim-

inal conviction until first an application is

made to the trial level United States District

Court under Rule 33, Federal Rules of Criminal

Procedure where the defendant/petitionery/

appellant acting by counsel, seeks remand in

order to make a Motion for a New Trial pending

that appeal?

2. Whether the conflict among the

various United States Court of Appeals con-

cerning interpretation of F.R.Crim.P. 33

requires the Grant of Certiorari to interpret

this rule and resolve the conflict. See

in this regard United States v. Phillips, 558

F.2d 363 (6th Cir. 1977) and United States v.

Fuentes-Lozano, 580 F.2d 724 (Sth Cir. 1978)

(see also the follow-up appeal on the merits at

600 F.2d 552 (5th Cir. 1979)) requiring that the

Circuit Court deny application for remand until

application is first made to the District Court;

cf. the instant case, where U.S. 10th Circuit

grants said motion and rules it has permanently

lost jurisdiction of the merits of the pending

appeal.

3. Whether a UnitedStates Court of

Appeals permanently loses jurisdiction of a

pending Federal Criminal appeal under Rule 33,

F.R. Crim.P., by remand of that appeal to allow

the District Court to consider a motion for a

new trial made during the pending Federal

ii

Criminal appeal?

4. Whether, in view of the large number

of existing authorities which uniformly hold,

mandate, or at least suggest that application.

for remand to the District Court under Rule 33

of a Federal Criminal Appeal pending in the U.S

Circuit must first be made to the District Judg

who will then seek remand if and only if he fee

the motion for a new trial meritorious, has

this petitioner been denied the effective

assistance of counsel guaranteed under the 6th

Amendment to the United States Constitution by

his counsel on appeal solely and initially '

seeking remand of the pending appeal hy filing

Said application in the U.S. Circuit Court and

failing to seek only a temporary and qualified

remand, resulting in loss of the entire appeal

without consideration onthe merits because the

Circuit Court ruled it hadpermanently lost

jurisdiction when it remanded to the U.S.

District Court?

5. Whether the U.S. 10th Circuit can

iii

retroactively apply a newly promulgated

precedural decision so as to permanently

deny this petitioner resolution of the appeal

of his conviction of a Federal Crime without

a Hearing on the merits, on its own interpre-

taion that it has permanently lost jurisdiction

upon remand to the U.S. District Court?

(b) As far as is known, the only parties

affected by this case and petition are the

respondent United States and the petitioner

Joseph M. Siviglia.

iv

NO.

October Term, 1982

JQSEPH M. SIVIGLIA,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR CERTICRARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE

TENTH CIRCUIT

TO THE HONORABLE WARREN E. BURGER, CHIEF

JUSTICE OF THE UNITED STATES AND TO THE HONOR-

AELE ASSOCIATE JUSTICES OF THE UNITED STATES

SUPREME COURT:

JOSEPH M. SIVIGLIA, petitioner, by his

counsel, ROGER S. HANSON, seeks Certiorari

to the United States Court of Appeals, Tenth

Circuit, en banc, published decision

entered June 23, 1982.

Dated: October 31 » 1982 at Santa ‘Ana,

California.

spectfully) submitted,

Atko ey for Petitioner

Member of Bar

- Supreme Court

Item Page Appearing

(a.) Questions Presented for

RN 6) 6. eecermeseiemerte. a a Ses i

Cb.) Parekes. to FroceeGing. . .. .°. “@

te.) 43) -Tebie er Comtemee .. .. « o- 3

(c.) 2. Table of Authorities

Se Ss ha ek ss ee 5

(d.) Official Reports of the U.S.

10th Circuit Panel and En Banc

Decisions; Decision on rissa

for Rehearing En Banc

(e.) Jurisdictional Statement... . 7

(f.) United States Constitutional

PECORIORS ores ee he a 8

(g.) Concise Statement of Case ... 10

(h.)-(i.) Basis of Federal

Juv SsGeGlOn snow ee he ee eee

AO Yr oe RE RT Se NS

ae a ee ae eee em.

(C.) 1. Table of Contents

(i) Second Panel Decision

of U.S. 10th Circuit

on 2d Appeal, Denying

Appeal: on Merits, rendered

June 15, 1981 (Judges

Seth, Barrett, McKay) . . A-l

(ii) En Banc Decision of

US. 10th Circuit,

Denying Appeal on Merits,

rendered June 23, 1982

(Judges Seth, McWilliams,

Barrett, Doyle, McKay,

Seymour; Dissents by

Judges ar a

FO ae iar ie es St

(iii) Order Denying Petition

for Rehearing, En Banc

rendered September

OO a ae Cem «|

a a a

(m.) Certificate of Service by Mail . Final

(C.) 2. Table of Authorities and Cases

Case Page Appearing

Beasley v. United States

491 F. 2d 687 (6th Cir. 1974) 25

Betts v. Brady

316 U.S. 455 25

Cooper v. Fitzharris

586 F.2d 1325 (9th Cir. 1978

en banc) 25

Firestone Tire and rubber Co.

v. Risjord

449 U.S. 368, 101 S.Ct. 669,

L. Ed. 2d 14, 28, 29

Gideon v. Wainwright

372 U.8.: 333 25

Herring v. Estelle

491 F. 2d 125 (Sth Cir. 1974) 25

Knight v. United States

213 F. 2d 669 (Sth Cir.) 27

Marzullo v. State of Marvland

561 F. 2d 540 (4th Cir. 1977) 25

McMann v. Richerdson

397 U.S. 759 25

Moore v. United States

432 F. 2d 730 (3rd Cir. 1970

en banc) 25

United States v. DeCoster

159 U.S. APP. D.C. 326

487 F. 2d 1197 (D.C. Cir. 1973) 25

United States v. Easter

539 F. 2d 663 (8th Cir. 1976)

United States ex. rel.

William v. Twomey

510 F. 2d 634 (7th Cir. 1974)

United States v. Frame

454 F. 2d 1136 (9th Cir.)

United States v. Fuentes-Lozano

580 F. 2d 724 (5th Cir. 1978)

United States v. Fuentes-Lozano

600 F. 2d 552 (5th Cir. 1979)

United States v. Lowell

649 F. 2d 950 (3rd Cir.)

United States v. Phillips

558 F. 2d 363 (6th Cir. 1977)

United States v. Siviglia

U.S... (10th Cir. 1982

en banc

Zamloch v. United States

187 F. 2d 854 (9th Cir.)

25

25

27

43: Gh%.47, hoc

aa; av

27

4a, 12,27, dace

ie

(d) The initial decision of the U.S.

Court of Appeals (3 Judge panel) is reported

as United States v. Siviglia, F.2d_

(JOth Cir. 1982 ) and the En Banc opinion is

reported as United States v. Siviglia, F.2d

__» (10th Cir. 1982 En Banc).

(e) Grounds for Jurisdiction of this

Court:

(i) Date of Panel opinion (Judges

Seth, Barrett and McKay: June 15, 1981

Date of En Banc Opinion (Judges

Seth, McWilliams, Barrett, Doyle, McKay,

Seymour; dissents by Judges Holloway and

Logan:

June 23, 1982

(ii) A petition for rehearing En Banc

was made and denied on September 10, 1982 .

(iii) Does not apply.

(iv) The statutory provision believed

to confer on this Court jurisdiction to

review the judgment or decree in question by

Writ of Certiorari is 28 U.S.C. 2354(1).

(f) United States Constitutional Provi-

sions involved:

AMENDMENT V

No person shall be held to answer for a

capital, or otherwise infamous crime, unless on

a presentment or indictment of a Grand Jury, ex-

cept in cases arising in the land or naval for-

ces, or in the Militia, when in actual service

in time or War or public danger; nor shall any

person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liber-

ty, or property, without due process of law;

nor shall private property be taken for public

use, without just compensation.

AMENDMENT VI

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and

district wherein the crime shall have been

committed, which district shall have been

previously ascertained by law, and to be in-

formed of the nature and cause of the accusa-

tion; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor; and to have

the Assistance of Counsel for his defense.

FEDERAL RULE CRIMINAL PROCEDURE 33

The Court on motion of a defendant may

grant a new trial to him if required in the

interest of justice. If trial was by the

court without a jury the court on motion of a

defendant for a new trial may vacate the

judgment if entered, take additional testimony

and direct the entry of a new judgment. A

motion for new trial based on the ground of

newly discovered evidence may be made only

before or within two years after final judg-

ment, but if an appeal is pending the court

may grant the motion only on remand of the

case. A motion for a new trial based on any

other grounds shall be made within 7 days after

verdict or finding of guilty or within such

further time as the court may fix during the

7-day period. (As amended Feb. 28, 1966, eff.

July 1, 1966).

(g) Concise statement of the Case with

facts material to consideration of the ques-

tions presented:

Petitioner Joseph M. Siviglia was charged

with counts of 18 U.S.C. 371, conspiracy to

transport, receive and conceal stolen motor

vehicles; 18 U.S.C. 2313 and 2, transporting

stolen motor vehicles; 18 U.S.C. 2313, receiv-

ing stolen vehicles, in the United States

District Court in the District of New Mexico.

Following jury trial, petitioner was acquitted

of one count and convicted of the other counts.

On appeal to the U.S. 10th Circuit, a panel

of that circuit reversed the conviction on

June 5, 1978 in an unpublished opinion for

gross prejudicial misconduct on the part of

the Assistant United States Attorney during

closing argument.

Petitioner was retried on said charges,

10

was reconvicted, and took a second appeal to

the U.S. 10th Circuit. While that appeal was

pending, counsel on appeal desired to file a

Motion for a New Trial under F.R.CRIM.P. 33

in the District Court in New Mexico. While a

host of existing decisions (see e.g. United

States v. Phillips, 558 U.S. 363 (6th Cir. 1977)

and United States v. Fuentes-Lozano, 580 F.2d

734 (5th Cir. 1978) suggested that the accep-

table and safe procedure to insure viability

of the direct appeal at the circuit level,

should an adverse result be obtained in the

District Court on the Motion for a New Trial,

would be to file the Motion to Remand Under

Rule 33 in the District Court, appelate counsel

filed it in the U.S. 10th Circuit.

On or about September 7, 1979, the U.S.

10th Circuit, acting solely by a single judge,

granted the motion to remand to the U.S. Dis-

trict Court in Albuquerque.

Following an evidentiary hearing, the

United States District Court denied the Motion

11

for a New Trial and a timely appeal from that

denial was taken and filed as No. 79-2180.

Appellate counsel sought to return the

direct appeal to the U.S. 10th Circuit for

Hearing on the Merits in No. 79-1004, and the

two appeals were consolidated for oral argu-

ment. While neither the Government nor appel-

lant-petitioner raised the issue, a panel of

the U.S. 10th Circuit ruled that it had

permanently lost jurisdiction in cause No.

79-1004, the direct appeal on the merits from

the conviction, because the remand sought and

granted was unqualified, i.e., it was a

permanent remand although the three-judge panel

clearly admitted that it was quite apparent

that appellate counsel for petitioner did not

intend to abandon the direct appeal, and in

effect had desired merely a temporary and

qualified remand for the purposes of the Motion

for New Trial under F.R.CRIM.P. 33. See page

19 of this petition for Rule 33; see Appendix

"A" for the three-judge panel decision. In

12

effect, the U.S. 10th Circuit three-judge panel

refused to rule on the merits of the appeal in

cause No. 79-1004 because it had "permanently

divested itself of jurisdiction" when it re-

manded the cause for the purposes of the Motion

for a New Trial.

Petitioner sought a hearing En Banc and

that hearing was granted; on or about June 23,

1982, voting 6-2, with Circuit Judges Holloway

and Logan dissenting, the U.S. 10th Circuit

En Banc embraced the analysis of the panel de-

cision. See Appendix "B."

A Petition for Rehearing En Banc was made

and denied on September 10, 1982. See Appen-

dix "Cc."

The result of the U.S. 10th Circuit in

United States v. Siviglia, F.2d, (10th

Cir. 1982) is at gross variance and is in con-

flict with all other known decisions of other

Federal Circuit Courts of Appeal, and the con-

flict in the Circuits must cause this Honor-

able Court to grant Certiorari to resolve this

13

ambiguity in Federal criminal procedure which

quite obviously is a serious and recurring

national Federal criminal procedural issue

under Rule 33, F.R.CRIM.P.

The case at bar, if it is allowed to

stand, has denied this Petitioner his right

to appeal his Federal criminal conviction and

that result has been based on the alleged com-

mand of this Honorable Court in a Civil Case,

Firestone Tire and Rubber Co. v. Risjord, 449

U.S. 366, bEd. 24, 101 8.Ct. 669,

which was retroactively applied in this Federal

Criminal Conviction.

Further, it is rather apparent that the

loss of the direct appeal occurred solely as

a result of appellate counsel failing to take

cognizance of and to follow the manifold ex-

tanc decisions which mandated the proper pro-

cedure to follow to insure continued viability

of the pending appeal should the Motion for

New Trial made under Rule 33 not be successful.

This failure of appellate counsel to familiar-

14

ize himself with the non-deviating authority

prescribing remand application to the U.S.

District Court and not to the Circuit Court

constitutes ineffective assistance of counsel

recognized in a host of Federal Circuit Court

opinions and also, of course, by this Honor-

able Court. See the cited cases in the

Argument.

15

(i) Basis of Federal Jurisdiction:

Petitioner Siviglia was indicted by the United

States Grand Jury for the District of New Mexico

and was charged in U.S. District Court with

violations of 18 U.S.C. 371, 18 U.S.C. 2312 and

2, and 18 U.S.C. 2313.

(3) ARGUMENT

PETITIONER SIVIGLIA WAS DENIED

FEDERAL DUE PROCESS OF LAW UNDER

THE FIFTH AMENDMENT AND THE

EFFECTIVE ASSISTANCE OF COUNSEL

ON APPEAL UNDER THE SIXTH AMENDMENT

BY HIS APPELLATE COUNSEL MOVING THE

CIRCUIT COURT FOR A REMAND, RATHER

THAN THE DISTRICT COURT, IN ORDER

TO MAKE A MOTION FOR A NEW TRIAL

UNDER F.R.CRIM.P.33; ALTERNATELY,

THE U.S. COURT OF APPEALS FOR THE

10TH CIRCUIT HAS CREATED PROCEDURAL

LAW IN CONFLICT WITH ALL OTHER KNOWN

DECISIONS OF THE FEDERAL CIRCUIT

16

COURTS WHICH HAVE RULEDON THIS

PROCEDURAL ISSUE, AND HAS APPLIED

IT RETROACTIVELY AGAINST PETITIONER

TO DEPRIVE HIM OF A RESOLUTION OF

HIS APPEAL ON THE MERITS FROM A

FEDERAL CRIMINAL CONVICTION.

UNDER EXISTING LAW, E.G., UNITED

STATES V. PHILLIPS, 558 F.2d 363,

(6th CIR. 1977) AND UNITED STATES

V. FUENTES-LOZANO, 580 F.2d. 724,

(Sth CIR. 1978) AN APPELLATE

ATTORNEY CAN INSURE THE CONTINUED

VIABILITY OF A FEDERAL CRIMINAL

APPEAL BY FIRST AND ONLY MAKING

APPLICATION TO THE U.S. DISTRICT

COURT WHO HAS LIMIr ED JURISDICTION

TO EITHER DENY THE MOTION WITHOUT

SEEKING REMAND, OR IF THE DISTRICT

JUDGE FINDS MERIT TO THE MOTION,

HE CAN SEEK REMAND UNDER THE INTEN-

TION TO GRANT THE MOTION FOR A NEW

TRIAL.

17

IN THE CASE AT BAR, THE U.S.

10TH CIRCUIT HAS RULED THAT IT

HAS PERMANENTLY LOST JURISDICTION

TO FORECLOSE RESOLUTION OF THE

DIRECT APPEAL BY APPELLATE COUNSEL

INITIALLY SEEKING REMAND FROM THE

CIRCUIT.

NO COMBINATION OF NEW RETROACTIVELY

APPLIED PROCEDURAL DECISION OR COUNSEL

INEFFECTIVENESS SHOULD EXIST TO DE-

PRIVE A FEDERAL APPELLANT HIS RIGHT

TO APPEAL.

CONSEQUENTLY, CERTIORARI SHOULD BE

GRANTED.

The case at bar presents, as far as is known,

the first national requirement to interpret

Federal Rule of Criminal Procedure 33, which

provides:

18

FEDERAL RULE CRIMINAL PROCEDURE 33

The Court on motion of a defendant may grant

a new trial to him if required in the interest of

justice. If trial was by the court without a

jury the court on motion of a defendant for a

new trial may vacate the judgment if entered,

take additional testimony and direct the entry

of a new judgment. A motion for new trial

based on the ground of newly discovered evidence

may be made only before or within two years after

final jucgment, but if an appeal is pending the

court may grant the motion only on remand of the

case. A motion for a new trial based on any

other grounds shall be made within 7 days after

verdic or finding of guilty or within such

7-day period. (As amended Feb. 28, 1966, eff.

July 1, 1966).

19

(a) The ineffective assistance of counsel

issue.

Generally said, detenee counsel holding them-

selves out to be qualified to handle Federal

criminal appellate cases must be charged with

knowledge of the leading decisions which would

insure the continued viability of a pending

Federal Appeal should they deem it necessary to

seek a new trial based on newly discovered evi-

dence under F.R.CRIM.P. 33 while the appeal is

pending.

The manifold decisions in existence when

appellate counsel moved to remand this appeal

during its pendency in the U.S. 10th Circuit made

it clear that the seeking of the remand from the

District Judge would insure the continued life of

the pendiny appeal should the District Judge, in

exercising his limited jurisdiction to evaluate

the new trial motion, deemed it non-meritorious.

On the other hand, in failing to ask for a

qualified and temporary remand for the sole

purpose of evaluating the new trial motion, and

20

by seeking the remand from the 10th Circuit,

appellate counsel placed the appeal in jeopardy

and in effect abandoned it. When the Motion for

New Trial was resolved adverse to petitioner,

appellate counsel sought return to the 10th Cir-

cuite for resolution of the appeal in 79-1004 on

the merits. Clearly, as the 10th Circuit has

noted in its opinion, Appendix "B", appellate

counsel did not intend to abandon the direct

appeal, but really sought a limited and qualified

remand for the purpose of the Motion for the New

Trial under Rule 33.

Other Circuits (e.g. United States v.

Phillips, 558 F.2d 363 (6th Cir. 1977)) have

refused remand when the request is filed in the

circuit, forcing the petitioner-appellant to go

to the District Court; other Circuits, (e.g.,

United States v. Fuentes-Lozano, 580 F.2d 724,

(Sth Cir. 1978)) have provided that the motion

for remand, if made in the Circuit, can be

granted without permanently divesting itself of

jurisdiction to entertain the merits of the

21

appeal when the motion for new trial is unsuccess-

ful. The 5th Circuit thus sanctioned either an

application first to the Circuit or first to the

District Court, and did not anihilate the

petitioner-appellant's appeal if the Rule 33

motion was proven to be non-meritorious. See

United States v. Fuentes-Lozano, 600 F.2d 552

(Sth Cir. 1979).

Thus alert Federal appellate counsel familiar

with the foregoing cases, and a host of others,

easily ascertained from United States Code

Annotated, referenced to F.R.CRIM.P. 33 would

have been aware of the pitfalls and shoals

lurking beneath the uncharted waters of an

initial ungualified remand motion filed with

the Circuit.

The minimal mandates for counsel effective-

ness has been spelled out in a host of decisions.

The “farce, sham, and mockery” standard, of

course, is no longer with us. Plainly counsel

can miss an issue on appeal and not necessarily

be “ineffective” but it goes without saying that

22

a mistake of procedure which causes a loss of

the entire appeal where it is saliently clear that

ample authority existed to teach one how to avoid

that catastrophic result cannot be excused.

The En Banc 10th Circuit opinion cavalierly

attempts to shunt aside current counsel's allegatio

and assertion of counsel ineffectiveness by a

terse reference:

",..That particular issue cannot

be injected into the present

proceeding in such offhand manner.

Furthermore, there is nothing in

the record to support the sugges-

tion...' (Page B-7 , Appendix

"B ", this petition)

Two comments are in order:

l. It was the U.S. 10th Circuit that "in-

jected" the issue of "loss of jurisdiction"

into the appeal; neither appellant nor respondent

suggested such an epoch-making result and neither

party briefed the issue nor was it even suggested

by the 3-judge panel during oral argument in

23

the manner presented in the panel opinion; hence

counsel could not, and did not, suggest counsel

ineffectiveness because there wes no such

suggestion prior to the opinion of the panel that

this result would be the fate of No. 79-1004;

2. Of course, the record could not possibly

contain an evidentiary hearing looking into

counsel ineffectiveness for the U.S. 10th Circuit

developed this issue itself after all briefs

were filed and the case orally argued on the

merits, no one addressing the Court on the issue;

all we suggest here is when the entire right to

appeal a Fecera) criminal conviction is emasculated

by appellate counsel failing to adhere to well

established guidelines from other Circuits in

Rule 33 procedures, that is much more than

missing an issue in an appellate brief; it is

akin to not filing the Notice of Appeal on time

and thus causing total loss of the right of

appeal, and how can this be excused by any sort

of explanation in an evidentiary hearing? We

suggest this is Per Se appellate counsel

24

ineffectiveness recognized in the following

major decisions:

Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir.

1978 en banc); United States v. DeCoster, 159

U.S. App. D.C. 326, 330-31, 487 F.2d 1197,

1201-02 (D.C. Cir. 1973); Moore v. United States,

432 F.2d 730, 736-37, (3rd cir. 19790 en banc);

Marzullo v. State of Maryland, 561 F.2d 540,

543-44 (4th Cir. 1977); Herring v. Estelle,

491 F.2d 125, 128 (5th Cir. 1974); Beasley v.

United States, 491 F.2d 687, 696 (6th Cir.

1974); United States ex. rel. Williams v. Twomey

510 F.2d 634, 641 (7th Cir. 1974); and United

States v. Easter, 539 F.2d 663, 665-66 (8th

Cir. 1976).

Of course, this Honorable Court has long

recognized that criminal defendants are entitled

to the effective assistance of counsel: Gideon

v. Wainwright, 372 U.S. 335, 339, 83 S.Ct. 792,

9L.Ed. 2d 799 (1963) overruling Betts v. Brady,

316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed 1595 (1942);

and importantly, see McMann v. Richardson, 397

U.S. 759. 90S.Ct. 1441, 25 L.Ed. 2d 763 (1970),

especially 397 U.S. at 771, 90 S.Ct. at 1449.

The McMann decision mandated that "effective

assistance” means assistance "within the range

of competence demanded of attorneys in criminal

cases."

All we here aver is that it is per se

counsel ineffectiveness if the entire appeal

is lost because of counsel not following

existing case authority which clearly pointed

out the proper way to seek a motion for a new

trial during a pending appeal and not place

that pending appeal in jeopardy. Certiorari

should therefore be granted to set standards

for appellate counsel on Federal criminal

appeals.

(b) The conflict of authority in the

U.S. Circuit Court.

The instant En Banc opinion of the U.S.

10th Circuit holding that initial application

for remand made in and granted by the direct

Circuit annihilates the direct appeal is at

26

variance with all other leading circuit

court opinions. See United States v. Phillips,

558 F.2d 363 (6th Cir. 1977) requiring the

Circuit to deny without prejudice such an appli-

cation and directing that the application be

made first to the District Judge, who would

seek the remand if, and only if, he found

merit to the motion for a new trial; United

States v. Fuentes-Lozano, 580 F.2d 724 (5th

Cir. 1978), allowing the Circuit to reassume

jurisdiction of the direct appeal should the

District Judge deny the motion for a new

trial. (See the subsequent resolution of that

direct appeal in United States v. Fuentes-

Lozano, 600 F.2d 552 (5th Cir. 1979). See the

following cases which provide that the motion

for a new trial should be made, in the first

instance, to the District Court: United States

v. Lowell, 649 F.2d 950, 967 (3rd Cir.); United

States v. Frame, 454 F.2d 1136, 1138 (9th Cir.),

cert. den. 406 U.S. 925; Knight v. United

States, 213 F.2d 669, 702 (5th Cir.); Zamioch

27

v. United States, 187 F.2d 854, 855-56 (9th

Cir.); and see 2 Wright, Federal Practice

and Procedure, Sec. 557, pp. 534-535.

A gross conflict in the Federal circuits

on a serious and consequential Federal pro-

cedural issue that is intertwined with counsel

ineffectiveness provides ample reason for this

Honorable Court to grant Certiorari to resolve

the conflict.

Thus, certiorori is prayed for to resolve

this gross conflict of interpretation of F.R.

CRIM.P. 33 in the U.S. Circuit Courts.

This aberrent En Banc decision of the

U.S. 10th Circuit must not be allowed to stand.

(c) The error in "retroactivity" and the

erroneous use of Firestone Tire and Rubber Co.

v. Risjord, 449 U.S. 368, a civil case.

The U.S. 10th Circuit voted 6-2 En Banc

that petitioner's direct appeal was forever

lost because the Petition for Removal had been

made to the Circuit and not to the District

Judge, citing as basis for its loss of juris-

28

diction Firestone Tire and Rubber Co. v. Risjord,

449 U.S. 365;as the two-man dissent (U.S. Circuit

Judges Holloway and Logan) points out at B-18,

Appendix, of this Petition, Firestone is in-

apposite to the procedural issue here presented,

and the other cases embraced by the majority

similarly fail to support the anomalous result

of causing loss of the direct criminal appeal.

See, in toto, the dissent at pages B-9 through

B-23, Appendix.

(1) Conclusions.

Because of the need to resolve (1) a ser-

ious conflict in the U.S. Circuit Courts on

the interpretation of F.R.CRIM. P. 33, and

(2) to define the minimal effective assis-

tance of counsel standards for attorneys hand-

ling Federal criminal appeals, Certiorori should

be granted to the United States Court of Appeals

oge . Hanson, Esquire

Attormey for Petitioner

Member of Bar,

U.S. /Supreme Court

are iis

wes i

(k.) APPENDIX

Opinion of 3-Judge Panel,

U.S. 10th Circuit, entered

June 15, 1981.

En Banc Opinion of U.S.

10th Circuit, together with

Dissenting Opinions, entered

June 23, 19382.

Order Denying Rehearing,

entered September 10, 1982

30

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Nos. 79-1004

and 79-2180

)

)

Plaintiff-Appellee, )

)

vs. )

)

JOSEPH A. SIVIGLIA, )

)

)

Defendant-Appellant.

Appeal From the United States District Court

For the District of New Mexico

(D.C. No. 76-31 Criminal)

Hank Farrah of Hank Farrah and Associates (Robert

N. Singer and W. John Brennan of Coors, Singer,

Anaha, Brennan & Stratton, with him on the briefs),

Albuguercue, New Mexico, For Defendant-Appellant.

Don J. Svet, Assistant United States Attorney

(R.E. Thompson, United States Attorney, and

Richard J. Smith, Assistant United States Attorney,

with him on the briefs), Albuquerque, New Mexico,

for Plaintiff-Appellee.

Before SETH, Chief Judge, BARRETT and McKAY,

Circuit Judges.

BARRETT, Circuit Judge.

A-1l

Joseph Siviglia (Siviglia) appeals his jury

conviction, following retrial, of one charge of

conspiracy to transport, receive and conceal

stolen motor vehicles in violation of 18 U.S.C.A.

§ 371, three charges of transporting stolen motor

vehicles in violation of 18 U.S.C.A. 88 2313 and

2, and two charges of receiving stolen vehicles

in violation of U.S.C.A. & 2313. The second

trial commenced on September 18, 1978. The jury

verdict of guilty on a.l counts was returned on

the tenth day of trial.

Litigative and Procedural

Background

Siviglia was convicted in 1976 following his

first trial which lasted approximately ten days.

He was charged identically there with the charges

(counts) upon which he was convicted as above

related at his retrial. Siviglia was originally

tried jointly with Jeff Ralph Caruthers, Donnie

Clay Shafer and Ronald McIntyre for conspiracy

to transport motor vehicles and the receipt and

possession of same in violation of U.S.C.A. &

2312 and 371. Each case was consolidated

A-2

upon appeal, resulting in this court's unpublished

opinion entitled United States of America v. Jeff

Ralph Caruthers, Donnie Clav Shafer, Ronald McIntyre ,

and Joseph A. Siviglia, Nos. 76-1911, 76-1912, 76-

1913 and 76-1914 (10th Cir., filed June 5, 1978),

hereinafter referred to as sliv opinion. The con-

victions of Caruthers, Shafer and McIntyre were

affirmed. This court reversed and remanded for

a new trial as to Siviglia, holding that certain

comments made by the prosecutor in the course of

closing arguments:

+ « « constituted gross prosecutorial

misconduct requiring reversal of Siviglia's

conviction, even though no trial objection

was lodged. The statements constituted

plain error affecting substantial rights.

Fed. Rules Cr. Proc. rule 52(b), 18 U.S.C.A.

The prosecutor did, by these remarks, divert

the trial and the attention of the jury to

a trial of Siviglia's attorney. If the

witness Trower did lie, it was a matter for

the jury to consider in deciding the case.

The jury was not called upon to decide

who, if anyone, asked him to lie. This

was a collateral matter. Thus, the pro-

secutor's statement was both personal and

vindictive, directed to Siviglia's attorney,

and for all practical purposes to Siviglia.

why Trower lied, if he did, had nothing to

o with the guilt or innocence of Siviglia.

{Slip opinion, p. 33; Barrett, Circuit

Judge, dissenting).

A-3

Siviglia does not challenge the sufficiency of

evidence on appeal from his conviction on retrial.

His challenges involve claimed trial court errors.

We need not enumerate them, however, inasmuch as

the jurisdictional issue is dispositive.

Following Siviglia's conviction on retrial, he

appealed here in United States v. Siviglia, No.

79-1004.- During the pendency of that appeal, and

subsequent to its disposition on the merits,

Siviglia filed a motion with this court to remand

to the District Court for consideration of his

motion for grant of a new trial based on alleged

newly discovered evidence. This court granted the

remand on September 7, 1979

Thereafter, on October 15, 1979, the District

Court denied Siviglia's motion for a new trial

based on newly discovered evidence. A timely

appeal was taken by Siviglia from that denial on

October 24, 1979, and docketed here as United

States v. Siviglia, No. 79-2180.

On October 25, 1979, Siviglia filed an amended

notice of appeal incorporating the substantive

* (sic) - obviously the Court here means "prior."

A-4

issues he raised in Case No. 79-1004 prior to its

remand with his challenge to the District Court's

denial of his motion for new trial. We hereby

recall the mandate in Case No. 79-1004. This

opinion is issued under consolidated dockets

Nos. 79-1004 and 79-2180.

- Our Jurisdiction

Notwithstanding the fact that neither party

has raised the issue of this court's jurisdiction

to hear this consolidated appeal, jurisdictional

questions are of primary consideration and can

be raised at any time by courts on their own

motion. McGrath v. Kristensen, 340 U.S. 162

(1950); First State Bank, etc. v. Sand Springs

State Bank, 528 F.2d 350 (lOth Cir. 1976);

Bledsoe v. Wirtz, 384 F.2d 767 (10th Cir. 1967).

Lack of jurisdiction cannot be waived and juris-

diction cannot be conferred upon a federal court

by consent, inaction or stipulation. California

v. LaRue, 409 U.S. 109 (1972); Natta v. Hogan,

392 F.2d 686 (10th Cir. 1968). “If the parties

do not raise the question of lack of jurisdic-

tion, it is the duty of the federal court to

determine the matter sua sponte." Basso v.

SPT ee)

Utah Power and Light Company, 495 F.2d 906, 909

(10th Cir. 1974). A court lacking jurisdiction

cannot render judgment but must dismiss the cause

at any stage of the proceedings in which it be-

comes apparent that jurisdiction is lacking.

Mitchell v. Maurer, 293 U.S. 237 (1934); Citizens

Concerned, Etc. v. City and County of Denver,

628 F.24 1289 (10th Cir. 1980).

It is clear that the issue raised in Siviglia’

Case No. 79-2180, i.e., whether the trial court,

following his conviction on retrial, abused its

discretion in denying his motion for dismissal

or for a new trial based upon newly discovered

evidence, is properly before this court. We

hold that this contention is wholly without merit.

The record establishes that Siviglia could have

readily ascertained the existence of the alleged

newly discovered evidence with the exercise of

due diligence. It is our view that the so-calle

newly discovered evidence would not have altered

the result of the jury decision relative to his

guilt.

We move now to consideration of the thresh-

hold question whether this court is vested with

jurisdiction of the issues presented by Siviglia

in his direct appeal in Case No. 79-1004. He

there contends that, upon retrial, the District

Court erred in that: (a) retrial after reversal

for prosecutorial misconduct violated the double

jeopardy clause of the Fifth Amendment; (2) in

denying him a continuance to present evidence

impeaching one of the Government's key witnesses

or showing the Government's knowledge of same;

(3) he was denied his constitutional right to

a speedy trial; and (4) sentencing him for trans-

porting and receiving the same vehicle. For

reasons hereinafter set forth, we hold that we

do not have jurisdiction to decide these appell-

ate contentions. The appeal must be dismissed.

It is settled that under Fed. kules Cr.

Proc. rule 33, 18 U.S.C.A., a district court may

entertain a motion for a new trial during the

pendency of an appeal, although the motion may

not be granted until a remand request has been

A-7

granted by the appellate court. United States

v. Wilson and Abernathy, Unpublished Nos. 79-2142

and 79-2151 (10th Cir., filed June 4, 1980);

United States v. Ellison, 557 F.2d 128 (7th Cir.

1977), cert. denied, 434 U.S. 965 (1977); United

States v. Frame, 454 F.2d 1136 (9th Cir. 1972),

cert. denied, 406 U.S. 925 (1972); Ferina v.

United States, 302 F.2d 95 (8th Cir. 1962),

cert. denied, 371 U.S. 819 (1962).

A difficult question concerns the problem of

a remand motion made prior to the district

court's consideration of the motion for new

trial. In United States v. Phillips, 558 F. 2d

363 (6th Cir. 1977), the appellant's motion for

new trial was denied on the ground the proper

procedure requires that the motion for new trial

be first filed in the district court. The court,

however, denied the remand motion without pre-

judice to resubmission in the event the district

court certified its intention to grant the new

trial. Thus, the court effectively circumvented

the instant problem by refusing to entertain a

A-8

remand motion unless (1) a motion for new

trial is first made in the district court, and

(2) the district court certifies its intention

to grant the motion.

Faced with a similar circumstance, the court

in United States v. Fuentes-Lozano, 580 F.2d

724 (Sth Cir. 1978), treated a motion for a

temporary remand for the purpose of lodging a

motion for new trial in the district court as

an unqualified motion for remand. The motion

was granted. The court upheld the propriety of

the district court entertaining a motion for

new trial before remand in accordance with the

general rule, while at the same time sanctioning

the alternative procedure of first seeking a

remand to avoid delay for the purpose of per-

mitting the district court to "fully entertain

the motion." Fuentes-Lozano, supra, does not,

however, discuss the ramifications of an uncon-

ditional remand in relation to a subsequent

appeal on the merits. Even so, the court

subsequently accepted and decided an appeal on

A-9

the merits following the district court's

apparent denial of the motion for new trial.

See United States v. Fuentes-Lozano, 600 F.2d

552 (Sth Cir. 1979). The jurisdictional basis

for subsequent review of the case on the merits

cannot be clearly ascertained.

‘thus, in one case the appellate court, in

United States v. Phillips, supra, expressed its

policy of dismissing such a motion unless the

district court first certifies its intent to

grant a new trial, while the court, in United

States v. Fuentes-Lozano, supra, granted the

motion in the interests of expediency. We

observe that these alternatives are not mutually

exclusive nor do they exhaust all possibilities,

i.e., temporary or limited remand.

In the case at bar an unconditional remand

motion was requested and granted prior to the

District Court's entertainment of the motion

for a new trial. Ordinarily, an unconditional

remand contemplates termination of jurisdiction.

See e.g., Three J Farms, Inc. v. Alton Box

A-10

Board Co., 609 F.2d 112, 115 (4th Cir. 1979)

cert. denied, 445 U.S. 911 (1980); International

Union, United Mine Workers of America, Dist. 17

and 28 v. N.L.R.B., 468 F.2d 1139, 1142 (D.C.

Cir., 1972).

It seems absolutely clear, in the instant

case, that Siviglia did not intend that his

remand motion made in No. 79-1004 foreclose

his future appeal on the merits. That was,

however, the effect of the unconditional remand

order. Our research indicates that this

court has not heretofore expressed its policy

with respect to such a situation. We need not

be concerned further about the matter, how-

ever. The United States Supreme Court recently

and definitively resolved the matter.

In Firestone Tire & Rubber Co. v. Risjord,

__ U.S. ___, 101 S.Ct. 669 (January 13, 1982),

the Court held:

. the finality requirement embodied

A-1l

in § 1291 is jurisdictional in nature.

If the appellate court finds that the order

from which a party seeks to appeal does

not fall within the statute, its inquiry

is over. A court lacks discretion to con-

sider the merits of a case over which it

is without jurisdiction, and thus, by

definition, a jurisdictional ruling may

never be made prospective only. We

therefore hold that because the Court of

Appeals was without jurisdiction to hear

the appeal, it was without authority to

decide the merits.

Slip Opinion, p. 11 [Footnote omitted].

Firestone is dispositive. It rejected the

rationale of those courts which have made their

non-appealability decisions prospective only in

order to reach the merits of the disputes before

them. The Firestone opinion, in recognition of

the "scarce judicial resources", refused to

broaden the scope of the finality rule.

We affirm in Case No. 79-2180. We dismiss

the appeal in Case No. 79-1004.

A-12

6-23-82 79-1004 - 79-2180

UNITED STATES COURT OF APPEALS

For the Tenth Circuit

SLIP OPINION

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Nos. 79-1004 and 79-2180

UNITED STATES OF AMERICA, ) Appeal fuom the

: ) United States

Plaintiff-Appellee, ) District Court for

) the District of

Vv. ) New Mexico

) (D.C. No. 76-31-

JOSEPH A. SIVIGLIA, ) Criminal)

)

Defendant-Appellant. )

ON REHEARING EN BANC

Don J. Svet, First Assistant United States

Attorney (William L. Lutz, United States

Attorney, with him on the brief), Albuquerque,

New Mexico, for Plaintiff-Appellee.

Roger S. Hanson, Santa Ana, California, for

Defendant-Appellant.

Before Chief Judge, HOLLOWAY, MCWILLIAMS,

BARRETT, DOYLE, McKAY, LOGAN and SEYMOUR,

Circuit Judges.

Per Curiam.

B-2

A three-judge panel of this Court filed its

opinion in these two appeals on June 15, 1981.

28 U.S.C. § 46 (1976). The three-judge panel

affirmed the judgment of the district court in

No. 79-2180 and dismissed the appeal in No. 79-

1004. On June 29, 1981, Siviglia, the appellant

in both cases, filed a petition for rehearing,

with the suggestion that both appeals be reheard

en banc. On August 18, 1981, this Court granted

Siviglia's petition for rehearing en banc. The

opinion of the panel, filed on June 15, 1981,

had not been withdrawn. Thereafter, the parties

were permitted to file supplemental briefs, and

the cases were reargued to the Court, sitting

en banc, on May 6, 1982.

No. 79-2180

Although a rehearing en banc was granted in

each of these two appeals, the supplemental

briefs and the oral argument of counsel related

only to No. 79-1004. As indicated, in No. 79-

2180, the panel affirmed the orderof the dis-

trict court denying Siviglia's motion for dis

missal or a new trial. On rehearing en banc,

B-3

the Court adheres to the judgment of the panel

in No. 79-2180, and affirms the order of the

districtcourt.

No. 79-1004

The supplemental briefs and the oral argu-

ment were concerned exclusively with No. 79-1004.

In No. 79-1004, the panel dismissed the appeal

on the ground that an earlier remand order

divested the Court of jur/ iction to consider

the merits of the appeal. On rehearing en banc

of No. 79-1004, theCourt adheres to the order

of the panel dismissing the appeal.

For background material, the reader of this

opinion is directed to the opinion of the panel.

United States v. Siviglia, ___—SF.2d ss (1: Ot

Cir. 1981). It is sufficient for our present

purposes simply to note that on August 27, 1979,

Siviglia, through counsel, filed a motion to

remand his case to the district court. As of

that date, the appeal had been fully briefed,

and the case was set for oral argument in the

September, 1979, term of court. On August 31,

B-4

1979, the government filed a response to the

motion to remand, in which the government objected

to a remand on the ground thatit was a delaying

tactic. On September 7, 1979, the Court granted

Siviglia's motion for remand. Our remand order

was an unqualified remand, i.e., not a partial

remand, and contained no conditions or limiting

language. The panel, in dismissing No. 79-1004,

held that the unqualified remand order terminated

our jurisdiction of that appeal. The Court, on

rehearing en banc, adheres to the panel's order

of dismissal in No. 79-1004.

The Court notes that Siviglia's motion to

remand was itself “unqualified” in nature in that

he did not request a partial remand for a limited

purpose. In his motion to remand, Siviglia

stated that he intended to file with the district

court a motion for dismissal, or, alternatively,

for a new trial, and that a remand was necessary

in order to permit the district court to consider,

and to grant guch motion. Fed. R. Crim, P. 33.

In the motion for remand, Siviglia declared that

B-5

if the district court were to grant his motion

for dismissal, or new trial, further prosecution

of the direct appeal, No. 79-1004, would be un-

necessary. Significantly, Siviglia further

declared that should the district court deny

his motion for dismissal or new trial, he would

then appeal “such denial." After remand,

Siviglia in fact did file a motion for dismissal,

or for a new trial, which the district court,

after hearing, denied. As above indicated, we

have affirmed such denial in No. 79-2180.

We find nothing in Siviglia's motion to

remand to indicate that he sought only a partial

or limited remand in order to preserve the dir-

ect appeal of his conviction should the district

court deny his motion fordismisaal or new trial.

On the contrary, Siviglia advised the Court in

his motion to remand that should the district

court deny his motion for dismissal or new trial,

he intended to appeal "such denial," which he

did. Accordingly, the motion for remand, in

practical effect, constituted an abandonment

of any appeal going to the merits of his convic-

tion. In this connection, our examination of

Siviglia's brief addressing the merits of his

second conviction indicate quite clearly that

his grounds for reversal are unsubstantial.

So, the motion for remand indicated, to us, that

Siviglia was staking all on his ability to con-

vince the district court that the charges against

him should either be dismissed, or thathe should

be granted a new trial thereon, or, absent that,

a reversal on appeal of any such denial order,

By supplemental brief, current counsel

for Siviglia, who did not prepare the motion

for remand or otherwise actively represent

Siviglia until the rehearing en banc, suggests

that Siviglia has been denied his Sixth Amend-

ment right to the effective assistance of

counsel. That particular issue cannot be in-

jected into the present proceeding in such off-

hand manner. Furthermore, there is nothing in

the record to support the suggestion.

In sum, this Court had jurisdiction over

Siviglia's direct appeal of his criminal convic-

tion in No. 79-1004 until September 7, 1979, on

which date we granted defendant's unqualified

motion to remand to the district court. Our

unqualified remand of the case operated to divest

us of jurisdiction. See Dist. 17 and 28, UMW

v. NLRB, 468 F.2d 1139, 1142 (D.C. Cir. 1972).

Having lost jurisdiction, we could not regain

it until a proper appeal had been perfected.

Siviglia’s atiempt to revive No. 79-1004 was

untimely and, as such, cannot constitute a

proper appeal. Accordingly, No. 79-1004 must

be dismissed for want of jurisdiction.

Judge Holloway and Judge Logan dissent,

and a dissenting opinion, or dissenting opinions,

will be filed.

TO: ALL RECIPIENTS OF THE OPINION FILED JUNE

23, 1982

RE: Nos. 79-1004 and 79-2180

United States of America vs.

Joseph A. Siviglia

Attached is an opinion filed today by Circuit

Judges William J. Holloway, Jr., and James kK.

Logan, dissenting and concurring in the

opinion filed June 23, 1982.

HOWARD K. PHILLIPS,

Clerk

NOS. 79-1004 and 79-2180

UNITED STATES v. SIVIGLIA

HOLLOWAY, Circuit Judge, with whom LOGAN, Circuit

Judge, joins, concurring and dissenting.

I am in agreement with the result reached

by the majority's opinions? in No. 79-2180,

affirming the district court's denial of Siviglia's

motion for dismissal or a new trial.” However,

I cannot agree with the majority's ruling in

No. 79-1004 that we are without jurisdiction to

hear the merits of that original appeal because

of an earlier order of remand entered to permit

filing and consideration of the motion to dis-

miss or for a new trial.

The effect of the majority ruling in No.

i

The panel's opinion in the instant case,

United States v. Siviglia, F.2d (10th

Cir.), w ereinafter referred to as

Siviglia I while the court's subsequent en banc

Spinion, United States v. Siviglia, ___ F.2d

(10th Cir.), w referred to as

Siviglia II.

2 I am persuaded that the record supports the

district court's finding that it was not shown

that the newly discovered evidence in question

Ts not have been obtained in the first

trial.

B-10

79-1004 is to dismiss Siviglia's original

pending appeal without any consideration ever

being given to the merits of the issues raised

| by thatappeal of right. No sound reason for such

a harsh result is given. First, the majority

points to no criminal rule nor to any rule or

decision of this court holding that after

denial of the motions by the district court,

consideration of the original appeal would be

foreclosed unless the motion to remand were

technically worded so as to avoid seeking an

“unconditional” or “unqualified” remand, as

the Siviglia I and II opinions state.

Second, Siviglia's motion to remand, made so

that his motions to dismiss or for a new trial

could be filed and considered by the district

court, can in no way be read as intending to ask

for a dismissal or outright abandonment of his

original appeal. Thus applying this new pro-

cedural rule, now adopted, to Siviglia's

August 1979 motion to remand unjustly defeats

consideration of a criminal appeal on its

merits.

B-11

First, neither the Federal Rules of

Appellate Procedure, the Federal Rules of Criminal

Procedure, nor the rules of Court for the Tenth

Circuit specify that to preserve the pending

appeal, a motion must be made for a "conditional"

or "qualified" remand, as now required by the

majority. Moreover, the procedure for such

a motion is not clearly staked out. As this

court noted in Siviglia I, under Fed.R.Crim.P.

33 a federal district court may properly enter-

tain a new trial motion based on newly discovered

evidence during the pendency of an appeal. How-

ever, the motion may be granted only on remand

of the case. Id., __F.2d___. Rule 33 does

not indicate that initial application should not

be made in the appellate court for leave to

file the motion in the district court.°

3 A number of Circuits have indicated that the

motion for a new trial should be made, in the

first instance, to the district court. See. gt

United States v. Lowell, 649 F.2d 950, 967 (3

@ir.); United States v. Frame, 454 F.2d 1136,

1138 (9th Cir.), cert. denied, 406 U.S. 925;

Knight v. United States, 213 F.2d 699, 702

(Sth Cir.); Zamloch v. United States,187 F.2d.

854, 855-56 t r.); accord, United States

(Fn. 3 continued to next pade)

B-12

(Fn. 3 continued)

v. Aguillar, 387 F.2d 625, 626 (2d Cir.); and

see ; Wright Federal Practice and Procedure,

$557, pp. 534-35. Our Tenth Circuit opinions

and rules have not stated that view.

Thus, though Siviglia's difficulty might have

been circumvented by presenting his motion dir-

ectly to the district court, see, e.g., United

States v. Hays, 454 F.2d 274, 275 (9th Cir.),.

our decisions did not require that he should do

so. See our own precedent in Heald v. United

States, 175 F.2d 878, 883-84 (10th Cir.),

cert. denied, 338 U.S. 859 and United States v.

Fuentes-Lozano, 580 F.2d 724, 726 (5th Cir.).

"The purpose of the provision of Rule 33, which

permits the hearing, but not the granting of the

motion, in a case in which an appeal has been

taken, is to expedite proceedings." Rakes v.

United States, 163 F.2d 771, 772 (4th Cir.

Indeed, it has been said that "as here, to avoid

delay, the appellant may seek [from the court

of appeals] a remand for the purpose of per-

mitting the district court fully to entertain

the motion.” United States v. Fuentes~-Lozana,

supra, 580 F.2d at 726.

B-13

In short, I find that the various rules provided

no mandatory sequence for the proper procedural

steps in such circumstances. Indeed, if this

court had adopted the procedure indicated in

some circuits, (see n.3, supra), it would have

denied the motion to remand and directed that

the Rule 33 motion be filed in the district

court, thus preserving the merits of Siviglia's

appeal. 4 Most importantly, I find no authority

dictating the harsh result of treating Siviglia's

Original appeal as abandoned upon the granting

of his motion to remand.

Second, I must dissent because we cannot

construe Siviglia's motion to remand as intending

to dismiss his original appeal. We cannot rea-

sonably impute to his motion for remand an

intent to abandon completely his appeal in No.

79-1004 and to pin all his hopes on persuading

4 The appeal could then be held in abeyance

until the trial judge certified to this court

whether he would grant or deny the motion for

new trial. See United States v. Smith, 331

B-14

the district court to grant a new trial on newly

discovered evidence. Such an interpretation of

Siviglia's motion is unjustified.”

5 Siviglia's motion read in pertinent part as

follows:

MOTION TO REMAND

Comes now Defendant-Appellant Joseph A.

Siviglia, by andt hrough his attorney of record,

Hank Farrah, and respectfully moves this Court

to remand to the District Court for the District

of New Mexico the above-styled cause. As grounds

therefore Defendant-Appellant would show the

Court the following:

1.) That Defendant-Appellant intends to

file in the District Court a Motion

for Dismissal of Charges or in the

alternative for a New Trial, a copy of

which is attached hereto, Labeled

"Exhibit A", and incorporated herein

by reference. The basis for such

motion is newly discovered evidence as

more fully explained in the Motion

itself.

2.) If the District Court forthe District

of New Mexico were to grant Defendant-

Appellant's Motion for Dismissal,

this Appeal would be unnecessary.

However, if the District Court for the

District of New Mexico denied Defendant-

Appellant's Motion for Dismissal,

Defendant-Appellant would appeal such

denial. Thus it would be expeditious

and economical in terms of judicial

time and expense if the above-styled

appeal were Remanded to permit consid-

eration of Defendant-Appellant's

(Fn. 5 continued on next page)

B-15

(Fn. 5 continued)

Motion for dismissal in the Court

below.

Defendant~-Appellant has sought concurrence

of counsel for the United States in this motion

and concurrence has been denied.

Respectfully submitted,

B-16

A motion to remand, even when not worded

as a request for a “conditional” or "limited"

remand, is no more than a motion to remand.

Yet, in effect, the majority has treated

Siviglia's motion as a motion to dismiss his

appeal. See Fed. R. App.P. 43(b). The

Siviglia II opinion says that Siviglia's

motion stated that if the new trial were

granted, further prosecution of the appeal in

No. 79-1004 would be unnecessary and that

Siviglia further said if the motion were

denied, he would appeal that denial. The in-

ference is drawn that he intended not to also

pursue his original appeal if the new trial

were denied. The inference is unjustified, in

my judgment, and we should not infer such an

intent without a clear basis. In fact, in

Siviglia I, the panel earlier concluded (slip

op. at 8, _—s F..2d_—Ss):

It seems absolutely clear, in

the instant case, that Siviglia

did not intend that his remand

motion made in No. - ore-

close his future appeal on the

merits. That was, however, the

B-17

effect of the unconditional

remand order. (Emphasis added),

I would not infer that Siviglia intended to

foreclose pursuing the merits of his appeal in

No. 79-1004 and would not hold that the remand

order compels that result.

The authorities relied on by the majority

do not support this harsh result. Siviglia I

cites Firestone Tire & Rubber Co. v. Risjord,

449 U.S. 368, a civil case. There the Supreme

Court vacated a judgment of the Eighth Circuit,

312 F.2d 377, and held that the court of appeals

had improperly reached the merits of an order

denying a motion to disqualify an attorney,

which the Court held not to be a final decision

as required by 28 U.S.C. §1291. We are not con-

struing §1291 and the finality rule. In 79-1004,

Siviglia perfected an appeal from a final judg-

ment in the district court. That judgment has

been neither vacated nor reviewed in any manner

and the appeal therefrom remains to be considered

on its merits. Moreover, the reliance of

B-18

Siviglia I_ on the statement in Firestone that

"a jursidictional ruling may never be made pro-

spective only” is unpersuasive; the rule

adopted by the majority here is itself unsound

and is not supported by principles of retro-

spective or prospective application.

The opinions also cite International Union,

United Mine Workers of America, Dist. 17 and 28

v. N.L.R.B., 468 F.2d 1139 (D.C. Cir.) and

Three J Farms, Inc. v. Alton Box Board Co. 609

F.2d 112 (4th Cir.), cert. denied, 445 U.S. 911

as support for their holding. In International

Union, another civil case, the court of appeals

had remanded, apparently without a motion from

either party, to the Board. The Board conducted

hearings and subsequently the court of appeals,

sua sponte, ordered the case consolidated with

another case for review. At that point, the

court's jurisdiction was challenged and the

court stated that, as a result of the "“unquali-

fied" remand, the court was divested of

jurisdiction. However, the court noted that

B-19

there had been a new Board order dismissing the

complaint and thatno aggrieved party had yet

appealed that new order. The case is thus

unlike Siviglia's case where the judgment of

conviction has not been disturbed, the original

appeal from it isnot disposed of, and the pur-

pose of the remand has been served by the ruling

on the motions in the district court so that

appellate jurisdiction can again be exercised.

Three J. Farms, still another civil case,

is also inapposite. There, the case was re-

moved to the federal court and subsequently it

remanded to the state court, which resulted

in the federal district court's loss of juris-

diction. The finality of such transfer of juris-

diction between court systems was indicated

by 28 U.S.C. §1447(d) which directs that

"[a)n order remanding a case to the state court

from which it was removed is not reviewable

on appeal or otherwise... ." But cf.

Thermtron Products, Inc. v. Hermansdorfer., 423 U.S.

336, 345-46, This statute furthers expeditious

procedure as well as " . . .respect for

the state court and... recognition of

principles of comity.” In re La Providencia

Development Corporation, 406 F.2d 251, 252

(lst Cir.). We are not concerned with thae

policies as between the federal and state court

systems in the instant criminal case, nor are

we guided by such a statute.

I would hold that the order granting

Siviglia's mection to remand resulted not in

abandonment of the original appeal, but merely

in remand of the case to the district court to

permit it to rule on the motion to dismiss or

6 After that motion was dis-

for a new trial.

posed of - here by a denial - I would hold

that it is in order for us to proceed to disposi-

tion of the merits of the original appeal,

after notification of the district court's

ruling. See United States v. Fuentes-Lozano,

600 F.2d 552 (5th Cir.) (previously "remanded

6 The orderof remand was entered on September

7, 1979, by a single Circuit Judge of this court,

the order stating that:

(Fn. 6 continued to next page)

B-21

(Pn. 6 continued)

This matter comes on for consideration of

appellant's motion to remand the captioned

cause to the United States District Court for

the District of New Mexico for the purpose of

permitting the appellant to file with said

court a motion for dismissal of the charges

or, in the alternative, for a new trial.

Upon consideration whereof, appellant's

motion is granted.

The captioned case is vacated from this

Court's September Calendar on Friday, September

14, 1979, and counsel are excused from

attendance at that time.

It is further ordered that the cause is

remanded to che United States District Court

for the District of New Mexico.

The Clerk shall certify a copy of this order

to the said court as and for the mandate.

B-22

to permit the filing and consideration of the

proposed motion [for a new trial)" at 580 F.2d

726). After the purpose of the remand has

been served, there is no impediment to our re-

exercising jurisdiction to decide the case. The

procedure in Fuentes-Lozano is parallel to what

happened in the instant case, as the wording

of the remand order here shows. (See note 6).

After disposition of the motion for a new trial

in Fuentes-Lozano, the court of appeals decided

the merits of the original appeal under the same

docket number. 600 F.2d at 553. The original

appeal in the main case and the appeal from an

order denying a motion for new trial may be

consolidated. See United States. Butler,

636 F.2d 727, 729 n.**(D.C.Cir.), cert. denied,

451 U.S. 1019; United States v. Hays, 454 F.2d

274, 275 (9th Cir.).

Procedural rules should be construed to

favor hearing criminal appeals on their merits,

and not in a technical way which frustrates the

statutory right of appeal. For these reasons I

must dissent from the refusal to consider the

merits in No. 7941004.

B-23

JULY TERM - September 10, 1982

Before Honorable Oliver Seth, Honorable William

J. Holloway, Jr., Honorable Robert H. McWilliams,

Honorable James E. Barrett, Honorable William

E. Doyle, Honorable Monroe G. McKay, Honorable

James K. Logan and Honorable Stephanie K.

Seymour, Circuit Judges.

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs. ) Nos. 79-1004

) 79-2180

JOSEPH A. SIVIGLIA, ) (D.C. No.

; CR 76-031)

)

This matter comes on for consideration of

appellant's petition for rehearing en banc filed

in the captioned cases or in the alternative, a

motion for allowance of bail pending petition

for certiorari to the Supreme Court of the

United States. The government filed a response

to the petition.

Upon consideration whereof, no judge in

regular active service on the Court having re-

C-1

quested that the Court be polled on rehearing

en banc, Rule 35, Federal Rules of Appellate

Procedure, the petition for rehearing en banc

is denied.

It is further ordered that appellant's re-

quest for allowance of bail pending petition

for certiorari is granted upon the following

conditions :

a. Appellant shall file a ten thousand

dollar ($10,000) cash or corporate surety bond

with the clerk of the United States Court for

the District of New Mexico on or before October

1, 1982.

b. The clerk of the district court shall

notify the clerk of this Court when such bond

is filed.

c. If the bond is not filed with the clerk

of the district court by October 1, 1932, then

the mandate in case number 79-2180 shall issue

forthwith (mandate issued in 79-1004, June 25,

1982).

HOWARD K. PHILLIPS, Clerk

By: (Sig.)

ert L. Hoecker

Chief Deputy Clerk

C-2

(m.) Declaration of Attorney

Member of Bar of U. S. Supreme Court

Re Filing/Service of Petition for Certiorari

State of California)

County of Orange ee

Roger S. Hanson declares:

Ae I am a member of the Bar of the United

States Supreme Court.

2. On November 9, 1982, I caused to be

deposited in the UL. S. Mail in Ft. Worth, Texas,

copies of the Petition for certiorari in Joseph

Siviglia v. United States as follows:

(a.) Forty printed copies together

with Two Hundred Dollars ($200.00) filing fee

addressed to Clerk of U.S. Supreme Court,

Washington, D. C. 20543;

(b.) Three printed copies to U. S.

Solicitor General, Washington, D. C. 20543;

(c.) One copy to Don Svet, Asst.

U. S. Attorney, U.S. Court House, Albuquerque,

New Mexico 87103;

(d.) One copy to U.S. Court of

Appeals, Office of Clerk, U.S. 10th Circuit

Room C-404, U.S. Court House, Denver, Colorado

80294,

(e.) One copy to Jesse Casaus, Clerk

U.S. District Court, Albuquerque, New Mexico

87103.

I declare the foregoing to true and

correct under the Penalty of per.

! Phang

Roger Hanson, Esquire

Member of the Bar o the

United States Supreme Court

/