[00:00:02] Speaker 03:
Case number 13-3098, the United States of America versus Ricardo Hunter appellant.

[00:00:08] Speaker 03:
Mr. Marwell for the appellant, Mr. Ricard for the appellee.

[00:00:15] Speaker 02:
May it please the court, Jeremy Marwell, as court appointed to meet this courting appellant, Ricardo Hunter.

[00:00:21] Speaker 04:
Good morning.

[00:00:22] Speaker 02:
Good morning, Your Honor.

[00:00:23] Speaker 02:
When a pro se incarcerated criminal defendant has no notice that a court has denied his claim for relief, discovers that order through his own diligence, and as a result is two days late in noticing his appeal, the federal rules do not invariably compel the harsh sanction of dismissal.

[00:00:41] Speaker 02:
Instead, this court can excuse the late filing or can remand for the district court to consider vacating and re-entering this order.

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This is so for three main reasons.

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First, that approach is consistent with the fact that Rule 4B's time limits for noticing an appeal are non-jurisdictional, and it follows from this court's own decisions shielding the right of appeal in related circumstances.

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Second, the key issue here is the schedule for paying criminal restitution.

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And Congress has made clear that the government does not have a strong finality interest in that schedule.

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In 3664K, Congress provided that the district court has ongoing authority to modify a restitution schedule in the interest of justice and in response to change circumstances.

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What was his, what rule, the Federal Rules of Criminal Procedure was his motion under?

[00:01:36] Speaker 02:
Well, it was captioned, Your Honor, under the Federal Rules of Criminal Procedure and 3664.

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And I would submit first that 3664-K provides that authority to revisit a restitution order.

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It may have also been under, well, 3664 has an unusual provision that says that other rules of criminal procedure do not apply to.

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That's during the original

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the initial sentencing that that procedure and that section deals with.

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Because it specifically mentions pre-sentence reports.

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I don't think that section has anything to do with motions after the sentence.

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Courts have entertained 3664K motions, other circuits, and I would draw your attention to the text of 3664K, which is an addendum four to five of the green brief, the opening brief.

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It says a restitution order shall provide that the defendant shall notify the court and the attorney general of any material change in the economic circumstances.

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Upon receipt of the notification, the court may, on its own motion or the motion of any party, including the victim, adjust the payment schedule as the interests of justice require.

[00:02:53] Speaker 03:
He didn't have a change in circumstances, did he?

[00:02:56] Speaker 02:
Well, I think when you look at the facts that he asserts in his motion, he says a few things.

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He says, one, I've been placed in a facility where there aren't jobs.

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When you have an indigent, a defendant ordered to pay, as here, about $35,000 in restitution, nobody understood that he had assets at the time.

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So the primary source of assets during the period of incarceration, which is at issue here, would be prison jobs or perhaps contributions from family members

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So he says he also has health problems.

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And then he says he receives a limited amount of funds from his relatives for his commissary account.

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So I think if you think- That doesn't strike me as a change in circumstances.

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How long was he in that prison from sentencing to the time that he filed his motion?

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It was approximately two months, I believe, between sentencing his motion.

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The reason I'm asking you this is because Rule 35A provides that for an adjustment of sentence for when there's been clearer, and we have a plainer argument here too,

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But that rule requires that the motion be made within 14 days.

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And every other circuit has looked at it.

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There are no cases in our court that has held that that's jurisdictional.

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So if that rule applies, then the district court didn't have jurisdiction.

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to change his sentence even for clearer error because it was five, more than 14 days afterwards and we could recognize it on appeal and that would be the end of the case, wouldn't it?

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That's right.

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I know this doesn't, government has not argued that there was a jurisdictional barrier.

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I know that that is not

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that doesn't prevent this court from needing to address the jurisdictional issue.

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I would refer you to 3664C at Addendum 2.

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It's an unusual provision.

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It says, the provisions of this chapter, Chapter 227 and Rule 32C of the Federal Rules of Criminal Procedure shall be the only rules applicable to proceedings under this section.

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That's 3664C.

[00:04:58] Speaker 02:
Which one is that?

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Addendum 2, Your Honor, it's Subsection C of 18 U.S.C.

[00:05:04] Speaker 02:
3664.

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I'm not aware of courts interpreting that.

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I'm not aware of this court interpreting that.

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But at least one court, the Van Horn decision, cited at page 47 of the Green Brief,

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says that as a result, rule 35, the time limit for noticing, sorry, the time limit in rule 35 does not appeal in the specific context of seeking to modify a schedule for payment of restitution.

[00:05:30] Speaker 02:
Okay, thank you.

[00:05:31] Speaker 02:
Sure.

[00:05:34] Speaker 02:
With respect to this court's authority to overlook the untimely notice of appeal, which I think is one of several pathways for this court, the analysis, I think, is fairly straightforward.

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If you look at Holland v. Florida cited in the briefs, with respect to the standard for when equitable tolling is available and the standard for when the presumption in favor of some tolling would be rebutted, this case would support the availability of tolling.

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Some other courts have

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not aware of a decision of this court, but other courts have recognized that in some circumstances, given the unique equities of a criminal case, that overlooking this is not.

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But what do you do with the, I understand those cases, and I agree with you, 4B is not jurisdictional, right?

[00:06:20] Speaker 04:
We all agree with that.

[00:06:24] Speaker 04:
What do you do with this very express language in 49C that says the clerk's failure to give notice does not affect the time to appeal or relieve or authorize court to relieve a party's failure to appeal within the time?

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Doesn't that deprive us of authority to exercise any equitable authority we might have?

[00:06:48] Speaker 02:
I don't think so, Your Honor, for a few reasons.

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First, I think that rule is best understood as governing the district court.

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It says when the court issues an order on any post-arrayment motion, the court must provide notice.

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It refers to appeal.

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It says a party's failure to appeal within time.

[00:07:07] Speaker 02:
That's right.

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So it says the clerk's failure to notice does not affect the time to appeal or relieve or authorize the court to relieve a party's failure to appeal.

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But this rule is a lot like the Civil Rule 77 and this court's decision in Expeditions Unlimited didn't see the text of Rule 77 as a barrier to

[00:07:27] Speaker 02:
allowing the district court to vacate and remand.

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And I would say that with respect to this court's authority, the more applicable rule, I think, would be a rule of Appellate Procedure 26, where a slightly more permissive language, I think.

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It says the court may extend the time prescribed by the rules or may permit an act to be done after that time expires.

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Two different authorities.

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And then it says the court may not extend the time to file a notice of appeal, but it doesn't then refer back to, it doesn't say anything limiting that may permit an act to be done after that time expires.

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I think it's possible to read that rule consistent with the idea that equitable tolling is an excuse for noncompliance, as distinct from an extension of the time.

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And if the two standard, if there are different legal standards, I think that's more than semantics.

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It gives this court, I think it's consistent with the presumption that equitable tolling is available.

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If I could reserve the remainder of my time.

[00:08:21] Speaker 00:
Wait, before you sit, what do you, what do we do with the plain error problem?

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So I think a few things on plain error.

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First, the government didn't say anything about it below, and if you think of this case as involving a motion.

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Wait, why would they be obliged to say anything to the district court?

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Plain error is about

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affecting our review.

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That's correct.

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Although if Mr. Hunter had lacked any procedural basis or if he had been out of time, this was an objection that needed to be raised.

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At sentencing, the government pointed that out to the district coordinator.

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It might have been an alternate basis.

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I would say

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With respect to the purpose of plain error review, the district court was presented with the claim.

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It addressed it on the merits.

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And if you consider this a motion for change circumstances, or if you think that it potentially is read that way, then it doesn't make any sense to apply plain error, because by definition, you're talking about something that couldn't have been brought up at sentencing.

[00:09:17] Speaker 00:
The sentencing scheduling couldn't have been brought up?

[00:09:20] Speaker 02:
Well, he could have asked for a schedule at sentencing, for sure.

[00:09:24] Speaker 02:
But 3664K contemplates then, if there are change in circumstances, that the defendant could have actually.

[00:09:30] Speaker 00:
Oh, you're trying to suggest there were change in circumstances.

[00:09:34] Speaker 02:
I think this wasn't fully ventilated below because there was no objection to whether Mr. Hunter's motion was timely, but I think if you look at the face of his motion, the three facts that I mentioned earlier could potentially be viewed in that way.

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Lack of prison jobs, health concerns, and so forth.

[00:10:01] Speaker 01:
May it please the Court, Stephen Ricard, on behalf of the United States.

[00:10:05] Speaker 01:
I'd like to address timeliness also, but I'd like to start where Judge Edwards' question left off on the Plain Air Standard and also, I think, addressing Judge Randolph's question.

[00:10:14] Speaker 01:
Running throughout the questions about the District Court's jurisdiction and the preservation of the issue from Plain Air Review is the fact that appellant throughout this litigation has sort of alternatively been requesting two different forms of relief.

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And I'd like to make clear, I think actually the Ninth Circuit decision, which goes against us, the Lamuan case,

[00:10:31] Speaker 01:
makes clear that an order of schedule and order from the district court is not the same thing as a schedule of payments that the Bureau of Prisons oppose administratively through the Inmate Financial Responsibility Program.

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You can have one be less than the other.

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Even in the Ninth Circuit where the district court has to set a schedule, the Ninth Circuit subsequently held the IFRP could voluntarily impose a schedule that's greater than that because the defendant can participate in that program or not.

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And that payment can be addressed administratively.

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So to the extent there's any concern about his circumstances in the prison and the payment schedule that's been set by the Inmate Financial Responsibility Program, that's a question that I don't think anyone disputes, as we argued in our brief, had to be addressed through the administrative process.

[00:11:18] Speaker 01:
The argument that appellants advanced as a challenge to the district court judgment is an argument that's been developed in a much more sophisticated fashion, of course, by amicus on appeal.

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You can look in the government's brief below where the government read appellants' pro se motion as asking

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for suspension of the fines and restitution and the government responded, I'd submit appropriately, that that was not permitted under the statute and that the restitution was mandatory.

[00:11:53] Speaker 01:
As the arguments developed into this challenge that goes more to whether the district court acted properly at sentencing, at that point the government has raised the plain air and the waiver objections and I would ask the court to find the issue to be waived or at the very least to apply plain air review and find no plain air consistent with Baldwin.

[00:12:16] Speaker 01:
I wanted to start there because that's where we left off.

[00:12:18] Speaker 01:
I also do want to address the timeliness issue.

[00:12:23] Speaker 01:
Of course, this court has held, since the kind of trilogy of cases involving the definition of the term jurisdictional, this court has held that Rule 4B is a claims processing rule and is not jurisdictional.

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That said, Eberhardt, in soul holding, this court cited Eberhardt, the Supreme Court decision dealing with Rule 33,

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And in Eberhardt, the Supreme Court made clear that a claims processing rule can nonetheless be mandatory upon the invocation of the party.

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And the Supreme Court even said that Robinson, which is a case that did deal with the predecessor to Rule 4B, a case from the 1960s,

[00:13:00] Speaker 01:
in the Supreme Court that that case was not wrongly decided, just that it used the wrong terminology in calling the rule jurisdictional, but rather that Robinson is correct not because the district court lacked subject matter jurisdiction, but because district courts must observe the clear limits of the rules of criminal procedure when they are properly invoked.

[00:13:19] Speaker 01:
And when the government objects to the filing that's untimely under the rule, the court's duty to dismiss the appeal is mandatory.

[00:13:29] Speaker 01:
And so.

[00:13:30] Speaker 04:
You say in your brief that Hunter should have asked his lawyer or the district court about the situation rather than, you say, waiting until 30 days after the order was entered.

[00:13:47] Speaker 04:
But how, I mean, why would he have done that?

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First of all, he didn't know the order had been entered, correct?

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It had been, it wasn't sent to him.

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So how could he be criticized for not waiting until 30 days afterwards?

[00:14:07] Speaker 04:
Is it your theory that prisoners should sort of check with the district court every week or so to make sure orders haven't been entered on pending motions?

[00:14:17] Speaker 01:
I think my theory is that they have an obligation to check every 30 days or so, specifically so that they don't run through this 44-day time period that they have.

[00:14:27] Speaker 04:
So prisoners who have pending motions should be sending a letter to the district court clerk's office every 30 days just to make sure that the clerk's office, just to find out whether the clerk's office has failed to send them a notice of an order.

[00:14:46] Speaker 04:
the district courts, is that what you want to happen?

[00:14:49] Speaker 01:
Well, I do think that the

[00:14:53] Speaker 01:
appellant could have been more diligent in this circumstance.

[00:14:56] Speaker 01:
What could he have done?

[00:14:57] Speaker 01:
He could have, just as your honor suggests, he could have written, after his reply brief was submitted and the motion was fully briefed, the court decided approximately two weeks later and he could have sometime in the time period between then and 46 days later, or 40 days later when he followed up with his attorney, written to the district court and asked for a copy of the docket or used any other method that might be available.

[00:15:20] Speaker 01:
There's nothing in this record about that, but I think there are

[00:15:23] Speaker 01:
other methods to check on the status of a docket case.

[00:15:30] Speaker 04:
He doesn't have access to the electronic docket, does he?

[00:15:33] Speaker 01:
I don't have any information in this record about what specific facilities are available at his particular prison.

[00:15:39] Speaker 04:
Do you know whether any prisoners have access to electronic, to court electronic dockets?

[00:15:45] Speaker 04:
I thought they didn't.

[00:15:47] Speaker 04:
I could be wrong about that, but I thought they had limited internet use and did not have access to the electronic document.

[00:15:53] Speaker 01:
I have no official ability to make a representation on that.

[00:15:56] Speaker 01:
I thought I'd seen cases where there has been some ability to access that through a library, but I don't know that it's present here, so I don't want to make any argument based on that.

[00:16:04] Speaker 04:
That's fair.

[00:16:05] Speaker 04:
That's okay.

[00:16:05] Speaker 01:
Even if Your Honor's concerned about the harsh nature of the circumstances here, I'd submit they don't rise to the level of the extraordinary circumstances required to find equitable tolling, and that's for exactly the reason.

[00:16:17] Speaker 04:
Well, your theory is, you read the statute, the statute's clear that it's deprived the court of any authority to equitably toll anyway, right?

[00:16:24] Speaker 04:
Isn't that your position?

[00:16:26] Speaker 04:
That the language in 49C says we don't have that authority.

[00:16:30] Speaker 04:
Isn't that your position?

[00:16:31] Speaker 01:
Yes.

[00:16:33] Speaker 01:
Not only that the court can't, as a matter of law, extend the time filing, but I think the presence of that provision, along with the committee report that makes clear what the provision is intended to do, would make it inappropriate for this court to find that circumstance, which is specifically envisioned in advance by the drafters of the rule, to be an extraordinary circumstance that would permit equitable tolling.

[00:16:53] Speaker 04:
I'm just curious, do you know whether, I take it this happens a lot because there's a rule on it, right?

[00:16:59] Speaker 04:
District court clerks fail to provide prisoners with notice of orders.

[00:17:05] Speaker 04:
I mean, it must happen a lot because otherwise there wouldn't be a rule about it.

[00:17:10] Speaker 04:
Do you know whether any effort is taken to discipline members of the clerk's office who do this so it doesn't happen again?

[00:17:19] Speaker 01:
I don't know, Your Honor.

[00:17:20] Speaker 01:
I don't think I can make any representations.

[00:17:21] Speaker 01:
And I think the other case where this happened in this circuit, the M-Ray sealed case, as you talked about, that was a sealed case and there was some problem with notice because it was a sealed case.

[00:17:30] Speaker 01:
My best guess here, I don't actually know for certain that the notice wasn't sent to him.

[00:17:34] Speaker 01:
We don't argue that in our brief because there's no evidence in this record whether it was sent or not.

[00:17:38] Speaker 01:
So we're asking this Court to dismiss assuming it was not sent.

[00:17:42] Speaker 04:
I see.

[00:17:42] Speaker 01:
So I haven't developed that point factually in any way that I can make representations.

[00:17:47] Speaker 01:
I would note that this was a case where he was represented by counsel at time of sentencing and judgment was entered.

[00:17:53] Speaker 01:
Then he filed this pro se motion, which

[00:17:58] Speaker 01:
It may have been that the clerk's office viewed the fact that there was counsel there as, you know, the ECF would take care of notice, whereas, in fact, the defendant was pro se at that point, and that may not have been updated.

[00:18:08] Speaker 01:
But I don't know exactly what happened or what the ramifications were.

[00:18:13] Speaker 00:
What is an example of an extraordinary circumstance in your view?

[00:18:16] Speaker 01:
I think that the Supreme Court case law on the point makes is a couple of examples.

[00:18:20] Speaker 01:
One would be an affirmative misrepresentation from the district court.

[00:18:23] Speaker 01:
So in Boles v. Russell, the extraordinary circumstance there, which wasn't enough because that's a jurisdictional rule, but I think that it was an example of an extraordinary circumstance, was the district court telling the habeas petitioner, you have an extension of 17 days, when really the statute only permitted an extension of 14 days.

[00:18:40] Speaker 01:
So the district court sort of affirmatively misled the petitioner.

[00:18:43] Speaker 01:
And that was not enough to excuse it in the context of a jurisdictional rule, but that would be more in the line of the kind of extraordinary circumstances that have been considered.

[00:18:51] Speaker 00:
Any other?

[00:18:52] Speaker 01:
I think the affirmative misrepresentations from counsel are another example where counsel says specifically, we will file this notice of appeal, don't worry about it, and then doesn't follow through on it.

[00:19:03] Speaker 01:
And I think that a lot of the

[00:19:05] Speaker 01:
Ed Pape's cases in the Supreme Court are those sort of ineffective assistance type situations, which wouldn't be the case in this case because this defendant acted... That's what's sort of interesting about your position.

[00:19:17] Speaker 04:
If he had had a lawyer and the lawyer had failed to file on time, he'd have a really solid ineffective assistance claim, right?

[00:19:25] Speaker 04:
But Hunter, who didn't have a lawyer, is pro se, he has fewer options to him because he's not represented.

[00:19:34] Speaker 04:
That doesn't make any sense at all.

[00:19:36] Speaker 01:
Well, I didn't want to concede that every ineffective assistant's case is pertinent.

[00:19:39] Speaker 01:
Well, there's lots of cases.

[00:19:40] Speaker 04:
We have cases that say that.

[00:19:42] Speaker 04:
Courts have held that if a lawyer fails to file a noticeable appeal on time, it's ineffective assistance of counsel.

[00:19:48] Speaker 01:
Well, I'd ask the court not to find any sort of injustice, manifest injustice.

[00:19:52] Speaker 01:
There are extraordinary circumstances given that he did have attorney for his criminal case.

[00:19:57] Speaker 01:
He opted with that attorney not to file a direct appeal from his criminal conviction.

[00:20:01] Speaker 01:
Then he took the initiative to file a pro se motion after the time for noting an appeal from his judgment had expired, and it was his obligation to follow up with that motion.

[00:20:12] Speaker 03:
You know, there is a Supreme Court case

[00:20:14] Speaker 03:
at dealing with Rule 49C and the failure of the clerk's office to give notice.

[00:20:21] Speaker 03:
Are you familiar with Rosenbloom versus the United States?

[00:20:25] Speaker 01:
Only that it's cited in the committee note, I believe.

[00:20:29] Speaker 01:
Have you looked it up?

[00:20:30] Speaker 01:
I don't think I've looked it up because my understanding was it predated the amendment to Rule 49C.

[00:20:36] Speaker 03:
The Court of Appeals in that case held that the appeal was untimely.

[00:20:40] Speaker 03:
The defendant, who was imprisoned, replied that he never received notice and the Supreme Court reversed.

[00:20:50] Speaker 03:
The question is whether the Supreme Court's decision, which was rendered in 1957 and came before the amendment to 49C, because I think that the language we're dealing with was added first in 1966, wasn't it?

[00:21:14] Speaker 01:
That's correct, and thank you for your honest question.

[00:21:16] Speaker 01:
The committee report, it's a little bit oddly worded, I think at a different time in terms of how it's drafted, but it sets up... It's kind of wishy-washy.

[00:21:23] Speaker 03:
It says courts of hell or something like that.

[00:21:25] Speaker 01:
Well, I don't think it's wishy-washy.

[00:21:27] Speaker 01:
I think it takes...

[00:21:29] Speaker 01:
I think that when you read it, what it's saying is that there was a circuit split, or a split of authority, that some courts had held that the failure of notice provided an excuse.

[00:21:39] Speaker 01:
Some courts have held that it didn't.

[00:21:41] Speaker 01:
And now we're going to resolve that.

[00:21:43] Speaker 03:
And the Supreme Court, some courts have held that failure to give notice doesn't deprive you of the right to appeal.

[00:21:51] Speaker 03:
And one of those courts is the Supreme Court of the United States.

[00:21:54] Speaker 01:
and that was without the benefit of the change in the rule.

[00:21:56] Speaker 01:
And when the committee changed the rule, they cited that Supreme Court decision and then said, the excusable neglect provision of the old rule will cover most cases where the failure of the clerk to give notice of judgment or orders has misled the defendant.

[00:22:09] Speaker 01:
No need appears for indefinite extension without time limit beyond the 30-day period.

[00:22:13] Speaker 01:
So I'd submit that when that comment is read in its entirety, it's expressing an intent to overrule that Supreme Court decision.

[00:22:19] Speaker 03:
We'll cover most cases, which means not all cases.

[00:22:22] Speaker 03:
And the rule or the judgment that the defendant is asking for in this particular case is not an indefinite extension of time for all cases.

[00:22:33] Speaker 01:
Well, I think that the rationale that amicus has advanced for that two-day extension could apply to any length of extension of time.

[00:22:40] Speaker 01:
Where there's a much longer extension and the defendant claims that he hasn't gotten notice, the same arguments will be made.

[00:22:46] Speaker 01:
And I think the rule is saying, when it says most, I don't think it's saying that the rule tolerates exceptions.

[00:22:51] Speaker 01:
It's saying there may be a few cases where this leaves someone out in the cold, but it's better to do that than to have an open-ended extension until

[00:22:59] Speaker 01:
the defendant says he has noticed.

[00:23:00] Speaker 03:
Do you agree with the amicus that this, the motion that Hunter filed was a motion under 3664K, change in circumstances?

[00:23:11] Speaker 01:
I agree that that's the only jurisdictional hook that appears that I could see in terms of filing it.

[00:23:19] Speaker 01:
And I think that's why I started my argument pointing out the fact that there was really two different

[00:23:24] Speaker 01:
kinds of relief that the appellant and amicus have sought throughout this litigation.

[00:23:30] Speaker 01:
And I think that the change in circumstances motion obviously wouldn't permit the district court to revisit its judgment.

[00:23:36] Speaker 01:
And to the extent that amicus is now asking for that, I would ask the court to find that that relief is foreclosed.

[00:23:44] Speaker 01:
Unless there's any further questions we'd ask?

[00:23:45] Speaker 01:
No.

[00:23:46] Speaker 01:
OK, thank you.

[00:23:47] Speaker 01:
Thank you.

[00:23:48] Speaker 01:
I ask that the district court's judgment be affirmed.

[00:23:49] Speaker 04:
Yeah.

[00:23:50] Speaker 04:
Did Mr. Marlowe have any time left?

[00:23:55] Speaker 02:
Thank you, Your Honor.

[00:23:56] Speaker 02:
To begin with Judge Randolph's questions, I think when you look at the Holland v. Florida and the Supreme Court's more recent McQuiggin decision about the standard for when some sort of equitable tolling is available, courts have looked very hard for possible ambiguity, for a clear statement that there is an intent to foreclose and for the reasons that you explored

[00:24:19] Speaker 02:
my colleague, I think that standard, the presumption here, has not been refuted.

[00:24:25] Speaker 02:
And I think if Judge Tagel's observation that Mr. Hunter's in a unique position because he's pro se, should give you comfort that allowing an equitable extension here would not open the floodgates in other circumstances.

[00:24:39] Speaker 04:
Do you know whether inmates have access to the court's electronic docket?

[00:24:44] Speaker 02:
I don't know.

[00:24:45] Speaker 02:
I know that Mr. Hunter filed a, obviously his notice of appeal explained his circumstances, and he followed up with a declaration in this court, it's in the docket, explaining that he had had no knowledge, no access to the opinion, and the government didn't dispute that.

[00:25:00] Speaker 02:
I don't know.

[00:25:01] Speaker 02:
I know that they do sometimes have access to an email system, the core links email system, but that's different.

[00:25:10] Speaker 02:
So if the court were concerned about these sorts of factors, the second option that I had proposed a possible remand to the district court for it to decide whether to vacate and reenter would allow the district court potentially to explore those factual issues.

[00:25:24] Speaker 02:
There are no further questions.

[00:25:27] Speaker 02:
The rest under submission.

[00:25:27] Speaker 04:
Thank you.

[00:25:28] Speaker 04:
Mr. Marwell, the court appointed you to serve as amicus, and we're grateful to you for your assistance.

[00:25:33] Speaker 04:
Thank you.

[00:25:34] Speaker 04:
Thank you.

[00:25:34] Speaker 04:
The case is submitted.