United States Court of Appeals

“ The case, therefore, to be appealable to this court from the court of appeals of the District of Columbia, must be one in which the validity of the authority exercised or the existence or scope of the authority of the officer named is drawn in question.
'Drawn in question' is a phrase long used in other statutes of the United States regulating appellate jurisdiction. It is found in § 709 of the Revised Statutes (U.S.C.omp. Stat. 1901, p. 575) , governing appeals from state courts to this court. ”

“ A circuit court of appeals is not limited to issuing a writ of habeas corpus only when it finds that it is 'necessary' in the sense that the court could not otherwise physically discharge its appellate duties. ”

“ We have concluded that it was not, and accordingly remand the case for a disposition of petitioner's appeal on the merits.
Rule 37 (a) provides that ' (a) n appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from * * *' and that an appeal is taken 'by filing with the clerk of the district court a no ice of appeal * * *.' The Court of Appeals has read this to mean that, irrespective of the reason for the delay, the notice of appeal must actually be in the hands of the clerk on or before the 10th day. ”

“ That I ‘voted an appeal should lay to the supreme judiciary of the United States, for the correction of all errors both in law and fact,’ in rendering judgment is most true, and it is equally true that if it had been so ordained by the Constitution, the supreme judiciary would only have had an appellate jurisdiction, of the same nature with that possessed by our high court of appeals, and could not in any respect intermeddle with any fact decided by a jury ”

“ There is a further principle, also supported by the history of federal appellate jurisdiction, that importantly pertains to the present problem. That is the concept that in the federal jurisprudence, at least, [8] appeals by the Government in criminal cases are something unusual, exceptional, not favored. The history shows resistance of the Court to the opening of an appellate route for the Government until it was plainly provided by the Congress, and after that a close restriction of its uses to those authorized by the statute. ”

“ It is clear from Rule IV of the Criminal Appeals Rules [2] that the Circuit Court of Appeals has the right to exercise sound judicial discretion in supervising and controlling the proceedings on appeal. ”

“ For reasons that seem to me too obvious to need spelling out, that Act should be interpreted as transferring to the Circuit Court of Appeals the case and not merely a stage in its disposition if the Congressional language reasonably permits the Act to be so read. Since it can be so read I do so read it and conclude that the whole appellate process in this case was vested in the Circuit Court of Appeals, regardless of the piecemeal exercise of that process. ”

“ Heritage
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. Upon the suggestion of the Solicitor General and an examination of the entire record, the judgment of the United States Court of Appeals for the Fifth Circuit is vacated and the case is remanded to that court for further proceedings in which the petitioner is to be accorded the opportunity to present oral argument on the merits of his appeal, either personally or through counsel, to the same extent as such opportunity is accorded to the United States Attorney. ”

“ Whether 'appeal' includes proceedings before the Supreme Court was not addressed by the Advisory Committee's Note and was until now an academic question since the rule became effective after the implementation of the Criminal Justice Act under which courts of appeals have uniformly adopted procedures routinely to extend appointed counsel's duty to preparation of certiorari petitions desired by their clients. ”

“ And, while we recognize that no single word or group of words can provide a precise formula that will dispose of every case, we think it appropriate to indicate in somewhat greater detail than in the past, the approach a Court of Appeals must take toward an indigent's application for leave to take a direct appeal from his criminal conviction in forma pauperis. ”

“ The decision was reached after a thorough examination of the Federal ligislation as to appellate jurisdiction in criminal cases and of the authorities in England and in the United States relating to criminal appeals, in which the court finds no precedent without express statutory enactment for any review of any judgment in favor of the accused. ”

“ In each State the judicial power is vested in a Supreme Court or Court of Appeal, one or more superior courts known by different names, and a series of local courts of various kinds. In several States the Supreme Court is such only in name, there being a court of last resort above it and usually known as Court of Appeals or Court of Errors and Appeals. ”

“ This isn't to suggest the statutory standing problem is insurmountable—or even close to it. Though standing isn't apparent in the transcript the plaintiffs recently supplied or the record they prepared for our review on appeal, perhaps on remand the plaintiffs can muster credible evidence that an assignment occurred before the lawsuit began. . . . Perhaps they can establish some direct and personal injury. ”

“ The requirement for filing the record in an appeal within the time prescribed by Rule 13 is not jurisdictional. Rather it is a provision of our own Rule which we often waive in the interests of justice. We should waive it here. The appeal now dismissed was solely protective under 18 U.S.C. § 3731. The main remedy sought was mandamus in the Court of Appeals, and the record naturally went to that court, not here. ”

“ In the first place, Congress has never expressly given the Federal Courts of Appeals jurisdiction to try and punish people for criminal contempt of court, and I am unwilling to hold that such a power exists in these courts in the absence of a clear and unequivocal congressional grant. The business of trial courts is to try cases. ”

“ Nothing in the Constitution guarantees one the right to select his own tribunal or the right to a speedy and public trial by a fair and impartial judge. The right to trial by jury is a benefit granted an accused, see Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 2905, 61 L.Ed.2d 608 (1979) , which a defendant has the power to waive. But before a waiver can be effective, the consent of the prosecutor and the sanction of the court must be obtained. See Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. ”

“ I conclude that evidence adduced at trial can be considered by a district court as the basis for a motion in arrest of judgment when that evidence is used solely for the purpose of testing the constitutionality of the charging statute as applied. I do so because the legislative history surrounding the passage of the Criminal Appeals Act abundantly shows Congress contemplated review by this Court in such a case. ”

“ Any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related to or connected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appear, or other proceeding therein. ”

“ Second Preliminary Draft of Proposed Amendments to Rules of Criminal Procedure for the United States District Courts (Mar. 1964) .↑ Boskey, The Right to Counsel in Appellate Proceedings, 45 Minn.L.Rev. 783 (1961) .↑ Once a discretionary appointment under 18 U.S.C. § 3006A (g) has been made in such collateral matters, an indigent is automatically entitled (as in prosecutions on direct review) to counsel's aid in petitioning for certiorari in the event his appeal is adversely decided by the court of appeals. ”

“ Because we remained concerned, even after lifting the abatement of this appeal, that the claims certified under Rule 54 (b) in the district court's August 23, 2012, order were not separable from Plaintiffs' remaining unadjudicated claims, we issued an order directing Appellants to "file in this court a copy of an order of the district court dismissing the remaining claims with prejudice" or face dismissal of the appeal.
"When an action presents more than one claim for relief . ”

“ On these principles, an appeal as to fact is no less proper, than the appeal from judges of law. A jury, whose legal qualifications are only property and ripe age, may more probably incur the imputation of weakness, partiality, or undue influence. But in regard to appeals, it is very material to remark, that congress is to make such regulations and exceptions, as upon mature deliberation, it shall think proper. ”

“ An appeal is a process of civil law origin, and removes a cause, entirely subjecting the fact, as well as the law, to a review and a re-trial. A writ of error is a process of common law origin; and it removes nothing for re-examination, but the law. [275] The former mode is usually adopted in cases of equity and admiralty jurisdiction; the latter, in suits at common law tried by a jury.
§ 1757. It is observable, that the language of the constitution is, that "the Supreme Court shall have appellate jurisdiction, both as to law and fact." ”