Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1418 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Veeradech A. AMORNVATTANA, aka Masprassart Tipprasert,Defendant-Appellant.

No. 89-10142.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 7, 1990.* Decided Feb. 16, 1990.

Before WALLACE, ALARCON and LEAVY, Circuit Judges.


MEMORANDUM** 

The appellant claims the district court erred by striking the notice of appeal because it was not filed within ten days after entry of judgment as is required by Federal Rule of Appellate Procedure 4(b). Rule 4(b) provides that " [a] judgment or order is entered ... when it is entered in the criminal docket."

The appellant claims the precise date of entry of the judgment cannot be proved because the clerk's office has a practice of back-dating judgments to reflect that they were signed and filed on the date of the sentencing hearing, although they are actually signed and filed later. According to the appellant, the back-dating occurs to allow the Probation Office time to review a judgment before it is signed by the court. He states that a judgment is entered after it is drafted by a clerk, but before it is signed and filed, Reporter's Transcript at 17, in violation of the rule that "the judgment must pre-exist before the clerk can perform the clerical or ministerial act of entering it." Richards v. U.S., 192 F.2d 602 (D.C. Cir. 1951); see also, 21 Federal Procedure, Lawyer's Edition, Sec. 51.51 (1984). Because of this practice, the appellant claims the clerk's office does not note the correct time of entry of the judgment on the docket.

The docket sheet shows that the judgment in this case was entered on the docket on February 21, 1989.1  The stamp of the clerk's office on the face of the judgment reflects that it was filed, or delivered to the clerk's office, at 4:30 p.m. on February 21, 1989. The trial judge stated emphatically that his practice is to sign a judgment on the day of the sentencing hearing.

The appellant claims the Probation Office did not receive the judgment until February 27, 1989, and therefore, we must assume the February 21, 1989, date reflected on the docket sheet and on the face of the judgment does not reflect the actual date of filing and entry of judgment on the docket.

Given the judge's statements as to his practice of signing judgments on the day of sentencing, and the February 21, 1989, date reflected on the docket and judgment, it is sheer speculation that the judgment was filed and entered on any date other than February 21, 1989. We cannot say that the district court's finding that the judgment was entered on February 21, 1989, is clearly erroneous. See Maine v. Taylor, 477 U.S. 131, 145 (1985) (applying the "clearly erroneous" standard of review to a finding of fact by a district court in a criminal case on an issue other than guilt).

Because the court docket unequivocally shows entry of judgment on February 21, 1989, and there is no evidence to the contrary, the appeal filed on March 7, 1989, was untimely. Further, we agree that there is no "excusable neglect," for the reasons stated in the March 17, 1989, order of the district court. We need not reach the appellant's other arguments.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

The judgment was assigned Docket Number 17. The complete entry for this docket number reads: "JUDGMENT including Sentence Under the Sentencing Reform Act EZRA."