Herbert R. Smith v. United States, 425 F.2d 173 (9th Cir. 1970). · Go Syfert
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Herbert R. Smith v. United States, 425 F.2d 173 (9th Cir. 1970). Cases Citing This Book View Copy Cite
“t is set- tled that compliance is both mandatory and jurisdictional.”
29 citation events (8 in the last 25 years) across 6 distinct courts.
Strongest positive: United States v. Sadler (ca9, 2007-02-28)
Treatment trajectory · 1974 → 2026 · click a year to view as-of
1974 2000 2026
Top citers, strongest first. 16 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) United States v. Sadler (2×) also: Cited as authority (rule)
9th Cir. · 2007 · quote attribution · 1 verbatim quote · confidence high
t is set- tled that compliance is both mandatory and jurisdictional.
examined Cited as authority (rule) United States v. Philip Martin Sadler (4×)
9th Cir. · 2007 · confidence medium
See, e.g., United States v. Arevalo, 408 F.3d 1233, 1236 (9th Cir.2005) (describing Rule 4(b)’s time requirement as “mandatory and jurisdictional”); George v. Camacho, 119 F.3d 1393, 1396 (9th Cir.1997) (en banc) (“It is a well-settled principle that this court cannot hear an appeal that was not timely filed, as we have no jurisdiction to do so.”); Smith v. United States, 425 F.2d 173, 174 (9th Cir.1970) (“[I]t is settled that compliance [with Rule 4(b)’s timing requirements] is both mandatory and jurisdictional.”); see also 15A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND …
discussed Cited as authority (rule) United States v. Roland Lorenzo Mitchell
10th Cir. · 2006 · confidence medium
See Deym v. von Fragstein, 127 F.3d 1102 , 1997 WL 650933 , at *2,3 (6th Cir.1997) (unpublished table decision) (despite minimal delay in filing, attorney’s busy workload was insufficient to satisfy the excusable neglect standard under Pioneer); Files v. City of Rockford, 440 F.2d 811, 815 (7th Cir.1971) (noting that the heavy work load of counsel has been rejected as a basis for finding excusable neglect); Smith v. United States, 425 F.2d 173, 174 (9th Cir.1970) (dismissing late appeal as untimely when it was uncontested that parties’ counsel informed them that the notice would be filed b…
discussed Cited as authority (rule) United States v. Billy Joe Kreidel
9th Cir. · 1997 · confidence medium
United States v. Avendano-Camacho, 786 F.2d 1392, 1394 (9th Cir.1986) ("[C]ourts have consistently viewed the filing deadlines of Federal Rule of Appellate Procedure 4(b) as 'both mandatory & jurisdictional' ") (quoting Smith v. United States, 425 F.2d 173, 174 (9th Cir.1970)).
discussed Cited as authority (rule) United States v. Olin B. Kicklighter
9th Cir. · 1996 · confidence medium
See United States v. Clark, 984 F.2d 319, 320 (9th Cir.1993) (per curiam); Smith v. United States, 425 F.2d 173, 174 (9th Cir.1970) (district court order granting extension of time to file notice of appeal beyond time limit allowed under Fed.R.App.P. 4(b) is "unauthorized and [ ] a nullity"). 5 Accordingly, Kicklighter's appeal of the denial of his section 3582(c)(2) motion is DISMISSED for lack of jurisdiction. 6 Kicklighter contends that his sentence imposed pursuant to 21 U.S.C. § 841 (b)(1)(A) is illegal because the relevant amendment governing his offense of conviction was not yet in eff…
discussed Cited as authority (rule) United States v. Miguel Espinoza-Betancourt (2×)
9th Cir. · 1995 · confidence medium
See United States v. Stolarz, 547 F.2d 108, 111 (9th Cir.1976) (mere acceptance of notice of appeal by court clerk after 10-day period does not give rise to extension of time to file), cert. denied, 434 U.S. 851 (1977). 6 This court has consistently held that compliance with Rule 4(b) is "both mandatory and jurisdictional." United States v. Eccles, 850 F.2d 1357, 1363 (9th Cir.1988); United States v. Avendano-Camacho, 786 F.2d 1392, 1394 (9th Cir.1986); Smith v. United States, 425 F.2d 173, 174 (9th Cir.1970); see United States v. Robinson, 361 U.S. 220, 229 (1960).
discussed Cited as authority (rule) Medicare&medicaid Gu 38,961 United States of America v. Prairie Pharmacy, Inc.
9th Cir. · 1990 · confidence medium
See id. (mis-communication and mistakes of counsel are not excusable); See also United States v. Avendano-Camacho, 786 F.2d 1392, 1394 (9th Cir.1986) (“attorney neglect has not been seen as providing a basis for relief” from Rule 4(b)); Smith v. United States, 425 F.2d 173, 174 (9th Cir.1970) (appeal dismissed where attorney failed to file notice after informing defendant that it would be filed).
discussed Cited as authority (rule) United States of America, Cross-Appellee v. Karen Eccles, Cross-Appellant
9th Cir. · 1988 · confidence medium
However, the Federal Rules of Appellate Procedure and the case law interpreting them indicate that we have no statutory jurisdiction to consider the defendant’s appeal. “[Cjourts have consistently viewed the filing deadlines of Federal Rule of Appellate Procedure 4(b) as ‘both mandatory and jurisdictional.’ ” United States v. Avendano-Camacho, 786 F.2d 1392, 1394 (9th Cir.1986) (quoting Smith v. United States, 425 F.2d 173, 174 (9th Cir.1970)).
discussed Cited as authority (rule) United States v. Jesus Avendano-Camacho (2×) also: Cited "see, e.g."
9th Cir. · 1986 · confidence medium
Having resolved defendant’s constitutional challenge, we observe that courts have consistently viewed the filing deadlines of Federal Rule of Appellate Procedure 4(b) as “both mandatory and jurisdictional.” Smith v. United States, 425 F.2d 173, 174 (9th Cir.1970) (citing United States v. Robinson, 361 U.S. 220, 229 , 80 S.Ct. 282, 288 , 4 L.Ed.2d 259 (I960)).
discussed Cited as authority (rule) United States v. Chaney
E.D. Wis. · 1983 · confidence medium
Smith v. United States, 425 F.2d 173, 174 (9th Cir.1970); cf., Crumpton v. United States, 496 F.Supp. 774, 776-777 (C.D.Cal.1980) (failure to file notice of appeal, followed by failure to file timely motion for extension, extinguishes right to appeal beyond revival).
cited Cited as authority (rule) United States v. Masaichi Ajimura
9th Cir. · 1979 · confidence medium
See United States v. Stolarz, 547 F.2d 108, 109-10 (9th Cir. 1976), cert. denied, 434 U.S. 851 , 98 S.Ct. 162 , 54 L.Ed.2d 119 (1977); Smith v. United States, 425 F.2d 173, 174 (9th Cir. 1970).
discussed Cited as authority (rule) Estate Butler's Tire & Battery Co., Inc. v. Ferrous Financial Services
9th Cir. · 1979 · confidence medium
Because there was some question regarding the actual date of filing, no inquiry by the court into the delay, and no attempt by the court to assist the indigent pro se litigant, the court remanded to the district court for findings on the question of excusable neglect The court in Alley acknowledged that this circuit takes a stricter stance on adherence to rules governing appeal. 501 F.2d at 884 , n.13 (citing Smith v. United States, 425 F.2d 173, 174-75 (9th Cir. 1970)). 13 The language in FRAP 4(a) regarding excusable neglect was derived from the 1966 version of FRCP 73(a).
discussed Cited as authority (rule) Headlee v. Ferrous Financial Services
9th Cir. · 1979 · confidence medium
The court in Alley acknowledged that this circuit takes a stricter stance on adherence to rules governing appeal. 501 F.2d at 884 , n.13 (citing Smith v. United States, 425 F.2d 173, 174-75 (9th Cir. 1970)). .
discussed Cited as authority (rule) Carl H. Alley v. Dodge Hotel
D.C. Cir. · 1974 · confidence medium
B. g., United States v. Isabella, 251 F.2d 223, 226 (2d Cir. 1958) ; United States v. Temple, 372 F.2d 795, 799 (4th Cir. 1966), cert. denied, 386 U.S. 961 , 87 S.Ct. 1024 , 18 L.Ed.2d 110 (1967) ; Smith v. United States, 425 F.2d 173, 174-175 (9th Cir. 1970). 14 .
cited Cited "see" United States v. John Clayton Harris
9th Cir. · 1996 · signal: see · confidence high
See id., citing United States v. Smith, 425 F.2d 173, 174 (9th Cir.1970). 4 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument.
discussed Cited "see, e.g." United States v. Gerhardt
9th Cir. · 2002 · signal: see also · confidence medium
See United States v. Avendano-Camacho, 786 F.2d 1392, 1394-95 (9th Cir.1986); see also Smith v. United States, 425 F.2d 173, 174 (9th Cir.1970) (holding that the requirements of the Federal Rules of Appellate Practice are “mandatory and jurisdictional”).
Retrieving the full opinion text from the archive…
Herbert R. SMITH, Appellant,
v.
UNITED STATES of America, Appellee
24307.
Court of Appeals for the Ninth Circuit.
Apr 14, 1970.
425 F.2d 173
Lorraine A. Smith (argued), San Francisco, Cal., for appellant., John W. Hornbeck (argued), Asst. U. S. Atty., Wm. Matthew Byrne, U. S. Atty., Los Angeles, Cal., for appellee.
Hamlin, Koelsch, Kilkenny.
Cited by 21 opinions  |  Published
KOELSCH, Circuit Judge.

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 great hardship and injustice would result if an extension was not granted. It is true that Rule 4(b) allows the district court to extend the time for filing the notice, but this authority is not without limitation; the Rule restricts the allowable extension to a “period not to exceed 30 days” beyond the 10 days normally allowed. See also Rule 26(b), F.R.App.P. Thus the order here was unauthorized and is a nullity.

Smith also urges that a declaration he made at the time of sentencing satisfied the notice requirements. The record indicates that he then stated: “Yes, I would like to appeal on this, your honor.” The Second Circuit in United States v. Isabella, 251 F.2d 223 (2d Cir. 1958), held that an oral declaration did not constitute compliance with the notice of appeal filing requirements and that to hold otherwise would be to open a ‘Pandora’s Box.’ The same view has been taken by the other courts considering this issue and we conclude it is sound. Durel v. United States, 299 F.2d 583 (5th Cir. 1962); O’Neal v. United States, 264 F.2d 809 (5th Cir. 1959), vacated on other grounds, 272 F.2d 412 (1959); Howard v. United States, 396 F.2d 867 (8th Cir. 1968); Cf. United States v. Temple, 372 F.2d 795 (4th[*175] Cir. 1966), cert. den., 386 U.S. 961, 87 S.Ct. 1024, 18 L.Ed.2d 110 (1967).

Smith’s additional assertion that the conduct of his trial attorney was fraudulent and deceitful will not be considered. It was not made in trial court and will not be heard for the first time here. Thus Smith’s reliance upon Calland v. United States, 323 F.2d 405 (7th Cir. 1963) is misplaced.

Appeal dismissed.