SHUMAR v. U.S.
423 U.S. 879

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U.S. Supreme Court

SHUMAR v. U.S. , 423 U.S. 879 (1975)

423 U.S. 879

Archie James SHUMAR v. UNITED STATES.
No. 74-1414.

Claude W. CLARKE v. UNITED STATES.
No. 74-6518.

Supreme Court of the United States

October 6, 1975

Leave to File Petition for Rehearing Denied Jan. 12, 1976.

See 423 U.S. 1067.

On petition for writs of certiorari to the United States Court of Appeals for the Seventh Circuit.

The petitions for writs of certiorari are denied.

Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.

Rule 26(b) of the Federal Rules of Appellate Procedure authorizes the courts of appeals to permit motions to be made out-of-time only 'for good cause shown.' The question in these cases is whether the Government showed good cause for its untimely motion to extend time to petition for rehearing in the Court of Appeals.

Petitioners Shumar and Clarke were convicted in the District Court for the Southern District of Indiana on one count of conspiring to violate 18 U.S.C. 1955 and on two counts of actually violating 1955. The Court of Appeals for the Seventh Circuit affirmed the convictions on the substantive counts, but reversed on the conspiracy count, holding that Wharton's Rule barred conviction for both violating and conspiring to violate 1955. The Court of Appeals entered judgment on July 31, 1974, and denied petitioners' petition for rehearing on September 30. The Government moved on October 4 to stay the mandate pending our decision in Iannelli v. United States, 420 U.S. 770 ( 1975), a case which presented the identical Wharton's Rule question decided by the Court of Appeals. The Government did not seek an extension of time to petition for

Page 423 U.S. 879 , 880

rehearing until October 24, when it sought an extension pending our decision in Iannelli. The Court of Appeals granted the extension. Several months later, we held in Iannelli that Wharton's Rule does not bar conviction for both violation of 1955 and conspiracy to do so. The Government then petitioned for rehearing. The Court of Appeals granted rehearing and modified its decision in light of Iannelli, affirming petitioners' convictions on the conspiracy count.

Absent an extension of time or a new entry of judgment, time to petition for rehearing expired on August 14, 14 days after entry of judgment by the Court of Appeals on July 31. Fed.Rule App.Proc. 40(a). The Government contends, however, that its time to petition for rehearing began to run from the denial of petitioners' petition for rehearing on September 30. But even accepting this doubtful contention,1 time to petition for rehearing expired on October 14, and, as the Government concedes, its motion to extend time on October 24 was untimely.

The Government argues instead that it satisfied the good cause requirement of Rule 26(b) by pointing out that we had granted certiorari in Iannelli on the same Wharton's Rule question decided by the Court of Appeals. Admittedly, our grant of certiorari in Iannelli would have been good cause to grant a timely motion to extend time to petition for rehearing, but that is not the question presented by these cases.

The Government's motion to extend time was itself untimely. Its burden was to show good cause, not only for the extension, but also for its untimely motion [423 U.S. 879 , 881]


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