Herbert R. Smith v. United States

During oral argument, this court raised the question of its jurisdiction. The record shows that on July 1, 1968, judgment was entered against Smith following his conviction for violations of the federal narcotics and tax laws (21 U.S.C. 174 and 26 U.S.C. 4705(a)) and that he filed a notice of appeal on September 26, 1968.

Rule 4(b), F.R.App.P., requires that the notice of appeal be filed with the Clerk of the District Court “within 10 days after the entry of the judgment” and it is settled that compliance is both mandatory and jurisdictional. United States v. Robinson, 361 U.S. 220 , 80 S.Ct. 282 , 4 L.Ed.2d 259 (1960); Thomas v. United States, 328 F.2d 607 (9th Cir. 1964). Tested by this requirement alone, Smith’s notice is clearly untimely and, consequently, this court is without jurisdiction to entertain the appeal. However, to avoid that result, Smith points to an order of the district court entered on September 26, 1968, which purported to extend the time for filing the notice until September 30, 1968. This order was based on Smith’s ex parte motion in which he asserted that his trial attorney had indicated that he would file the notice but had failed to do so, and that…