Court: Court of Appeals for the Ninth Circuit; November 4, 1988; Federal Appellate Court
Lance H. Mortensen was convicted of willful failure to file a tax return after two jury trials before a magistrate in the Western District of Washington. Following a mistrial due to a deadlocked jury, Mortensen sought to withdraw his consent for a magistrate trial on the day of the retrial, which the district judge denied. An emergency interlocutory appeal against this decision was also rejected. Mortensen was subsequently convicted in his second trial and sentenced to one year of imprisonment and a $4,000 fine.
On appeal, Mortensen raised two issues: the timeliness of his withdrawal from magistrate trial consent and the admission of his prior testimony as evidence in retrial. The court held that while a defendant can withdraw consent in a timely manner, Mortensen's motion was not timely. Additionally, his claim regarding the admission of evidence was deemed meritless.
The appeal raised jurisdictional concerns as Mortensen failed to file his notice of appeal within the ten-day period mandated by Rule 4(b) of the Federal Rules of Appellate Procedure. The district court's order was entered on June 25, 1987, and Mortensen filed his notice on July 7, 1987, one day late. However, Rule 4(b) allows for extensions due to excusable neglect, potentially mitigating the late filing. Despite these considerations, the court affirmed the district court's order.
In a criminal case, if a defendant files a notice of appeal after the initial 10-day period but within a 30-day window where the district court could extend the filing time, the appellate court will remand the case for the defendant to demonstrate excusable neglect, even without a prior motion for extension. If the district court finds excusable neglect, it may grant an extension of up to 30 days, making a subsequently filed notice of appeal timely. The appellate court maintains jurisdiction while the district court assesses the situation. In this instance, the notice of appeal was filed after the 10-day limit, but following a remand, the district court accepted Mortensen’s claim of excusable neglect and granted a 30-day extension. Therefore, the appeal was deemed timely, allowing the appellate court to assert jurisdiction under 28 U.S.C. § 1291.
Regarding withdrawal of consent to trial before a magistrate, Mortensen argued that a mistrial nullified his prior consent. However, the court held that consent remains effective until formally revoked. Citing the Sixth Circuit's decision in United States v. Lee, it was established that consent continues through subsequent trials unless explicitly withdrawn in a timely manner. The principle is that while jurisdiction remains unbroken during an appeal, consent can still be withdrawn, reflecting the importance of constitutional rights in waiving trial before an Article III judge. Case law supports the notion that waivers of rights, such as the right to counsel or jury trial, can be retracted, and this principle extends to consent for a magistrate trial.
Timeliness is essential for a notice of withdrawal, which is evaluated based on the specifics of each case. A withdrawal motion is considered timely if it does not disrupt the proceedings. Mortensen's motion to withdraw was deemed untimely as he filed it on the day retrial was set to begin, with a jury panel present, indicating a deliberate attempt to cause delays. Prior to this, Mortensen had consistently shown his intent to proceed with the retrial, including scheduling hearings and submitting motions without indicating any change in consent to the magistrate.
Additionally, Mortensen argued that his testimony from the first trial was improperly admitted in the retrial, claiming a right to appellate review based on the precedent set in Harrison v. United States. He contended that because the mistrial was not a final judgment, he could not appeal the admission of his prior testimony. However, this argument was rejected as Mortensen failed to demonstrate that his earlier testimony was compelled by illegally obtained evidence, nor did he provide specific examples of such evidence or errors. The court affirmed the decisions made regarding both the timeliness of the withdrawal motion and the admissibility of Mortensen's prior testimony.
