Jose R. Bueiz-karma, Defendant, Appellant, v. United States of America, Plaintiff, Appellee, 336 F.2d 66 (1st Cir. 1964)

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US Court of Appeals for the First Circuit - 336 F.2d 66 (1st Cir. 1964) September 1, 1964

Francisco A. Gil, Jr., U. S. Atty., and Gilberto Gierbolini, Asst. U. S. Atty., on motion to dismiss appeal.

Enrique Calderon Lassen, San Juan, Puerto Rico, appearing for appellant, without opposition.

Before WOODBURY, Chief Judge, and HARTIGAN, Circuit Judge.

WOODBURY, Chief Judge.

The appellant was indicted in the United States District Court for the District of Puerto Rico in three counts for stealing on three different days from the Alcoa Steamship Company Pier in San Juan bags of beans constituting and moving as part of an interstate shipment in each instance of a value in excess of $100 in violation of Title 18 U.S.C. § 659. On arraignment he pleaded not guilty and went to trial by jury at which as at his arraignment he was represented by counsel of his own choice. He was found not guilty as to the first two counts but guilty as to the third and sentenced on that count on June 26, 1964. Twelve days later on July 8, 1964, his counsel filed notice of appeal to the "United States Circuit of Appeals for the Third Circuit." The file, however, was properly forwarded by the clerk of the court below to the clerk of this court.

Now the United States Attorney for the District of Puerto Rico has filed a motion to dismiss the appeal as both untimely and frivolous.

The motion must be granted, if for no other reason, because the notice of appeal was filed out of time under Criminal Rule 37(a) (2) wherefore this court has no jurisdiction over it. United States v. Robinson, 361 U.S. 220, 80 S. Ct. 282, 4 L. Ed. 2d 259 (1960).

Moreover, it seems evident that an appeal would be futile for in the notice of appeal it is stated that the ground therefor is: "For submitting to the Court of Appeals new evidence in reference to this case."

An order will be entered granting the appellee's motion to dismiss.