On Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. Crim. No. 85-00151-01
Before: Becker, Mansmann, Circuit Judges, and Teitelbaum, District Judge*fn* Before: Gibbons, Chief Judge, Seitz, Weis, Higginbotham, Sloviter, Becker, Stapleton, and Mansmann, Circuit Judges
This appeal by Clinton Charles Hashagen from a conviction following a jury trial on two counts of distribution of a controlled substance, 21 U.S.C. 841(a)(1), presents an important question of appellate jurisdiction in criminal cases. Hashagen filed his notice of appeal after he was convicted but two days before he was sentenced and three days before judgment against him was formally entered. The panel to which this case was originally assigned found that the appeal was controlled by United States v. Mathews, 462 F.2d 182, 183-84 (3d Cir.), cert. denied, 409 U.S. 896, 93 S. Ct. 123, 34 L. Ed. 2d 153 (1972), in which another panel had interpreted Federal Rule of Appellate Procedure 4(b)*fn1 to mean that a court of appeals lacks jurisdiction when a defendant files his notice of appeal before pronouncement of sentence. In its internally circulated opinion, see I.O.P. Chapter 9A, the original panel in this case would therefore have dismissed the appeal because of Hashagen's three-day prematurity in filing his notice of appeal. We agree with the panel that the case is in a procedural posture squarely controlled by Mathews, and we have accepted in in banc in order to reconsider the rule Mathews announced.
The Mathews rule is harsh, and other circuits have rejected it. See e.g., United States v. Curry, 760 F.2d 1079 (11th Cir. 1985); United States v. Moore, 616 F.2d 1030 (7th Cir. 1980). It is also at odds with our jurisprudence in civil cases: "a premature appeal taken from an order which is not final but which is followed by an order that is final may be regarded as an appeal from the final order in the absence of a showing of prejudice to the other party." Richerson v. Jones, 551 F.2d 918, 922 (3d Cir. 1977) (emphasis in original). For the reasons that follow, we overrule Mathews and adapt to criminal cases the rule Richerson announced for civil cases: a notice of appeal filed after verdict but before sentence, although premature, ripens into an appealable order when the judgment of sentence is entered. Because we have jurisdiction over Hashagen's premature appeal under this rule, we must reach the merits. Finding no basis for his assignments of trial error, we affirm the judgment of sentence.
I. APPELLATE JURISDICTION
On December 11, 1985, a jury returned a guilty verdict against Hashagen on both counts of his indictment. Hashagen moved for a new trial, which was denied on February 6, 1986. Twelve days later, on February 18, Hashagen filed a notice of appeal "from the Order denying post-trial motions, and the judgment of conviction upheld thereby."*fn2
It was not until two days later, on February 20, that the district court sentenced Hashagen to concurrent terms of nine months imprisonment and special parole terms of three years on each count. On the next day, February 21, the sentence was reduced to judgment when a judgment and commitment order was filed. Hashagen filed no subsequent appeal. Therefore, his only notice of appeal was filed three days before formal entry of the judgment.
B. The Language of Rule 4(b)
To determine whether Hashagen's appeal was timely filed, we look to Federal Rule of Appellate Procedure 4(b), see supra n.1. This rule begins with the command" "In a criminal case, the notice of appeal by a defendant shall be filed in the district court within then days after the entry of the judgment or order appealed from." It has long been established that "final judgment in a criminal case means sentence. The sentence is the judgment." Berman v. United States, 302 U.S. 211, 212-13, 82 L. Ed. 204, 58 S. Ct. 164 (1937). Therefore, the judgment of sentence is the point from which the ten-day time limitation of Rule 4(b) begins to run.
Hashagen, however, filed his appeal three days before his sentence was formally entered and thus technically before "entry of the judgment or order appealed from." Therefore, the issue presented by Hashagen's appeal concerns the effect of a filing that is three days premature. The second sentence of Rule 4(b) may be construed as addressing this situation. It provides that "[a] notice of appeal filed after the announcement of a decision, sentence or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof."
The Mathews panel found that the second sentence of Rule 4(b) did not support jurisdiction over an appeal filed prematurely. In Mathews, the defendant filed a notice of appeal from a judgment of conviction and denial of post-trial motions five days before sentence was entered.*fn3 The panel refused to base jurisdiction on that appeal, finding it "premature because '[a]n appeal may not be taken until the pronouncement of sentence . . .'" 462 F.2d at 183 (quoting Corey v. United States, 375 U.S. 169, 172, 11 L. Ed. 2d 229, 84 S. Ct. 298 (1963)).*fn4 It noted the rule's second sentence but found that it operated ...