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    United States v. Samuel Scallio, A/K/A Santo C. Scallio, United States of America v. Samuel Scallio, 907 F.2d 1141, 4th Cir. (1990)

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    This document summarizes two appeals by Samuel Scallio regarding motions to correct his sentence and return seized property. The court found that Scallio's appeal of the denial of his Rule 35(a) motion to correct sentence was untimely, as it was filed more than 10 days after the order and the district court lacked authority to grant an extension. The court affirmed the denial of Scallio's Rule 41(e) motion for return of seized property, as civil forfeiture proceedings had been initiated, making that motion improper.

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    United States v. Samuel Scallio, A/K/A Santo C. Scallio, United States of America v. Samuel Scallio, 907 F.2d 1141, 4th Cir. (1990)

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    This document summarizes two appeals by Samuel Scallio regarding motions to correct his sentence and return seized property. The court found that Scallio's appeal of the denial of his Rule 35(a) motion to correct sentence was untimely, as it was filed more than 10 days after the order and the district court lacked authority to grant an extension. The court affirmed the denial of Scallio's Rule 41(e) motion for return of seized property, as civil forfeiture proceedings had been initiated, making that motion improper.

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    Filed: 1990-06-18 Precedential Status: Non-Precedential Citations: 907 F.2d 1141 Docket: 89-6351

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    This document summarizes two appeals by Samuel Scallio regarding motions to correct his sentence and return seized property. The court found that Scallio's appeal of the denial of his Rule 35(a) motion to correct sentence was untimely, as it was filed more than 10 days after the order and the district court lacked authority to grant an extension. The court affirmed the denial of Scallio's Rule 41(e) motion for return of seized property, as civil forfeiture proceedings had been initiated, making that motion improper.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    123 views3 pages

    United States v. Samuel Scallio, A/K/A Santo C. Scallio, United States of America v. Samuel Scallio, 907 F.2d 1141, 4th Cir. (1990)

    Uploaded by

    Scribd Government Docs
    This document summarizes two appeals by Samuel Scallio regarding motions to correct his sentence and return seized property. The court found that Scallio's appeal of the denial of his Rule 35(a) motion to correct sentence was untimely, as it was filed more than 10 days after the order and the district court lacked authority to grant an extension. The court affirmed the denial of Scallio's Rule 41(e) motion for return of seized property, as civil forfeiture proceedings had been initiated, making that motion improper.

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    of 3

    907 F.

    2d 1141
    Unpublished Disposition

    NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of


    unpublished dispositions is disfavored except for establishing
    res judicata, estoppel, or the law of the case and requires
    service of copies of cited unpublished dispositions of the Fourth
    Circuit.
    UNITED STATES of America, Plaintiff-Appellee,
    v.
    Samuel SCALLIO, a/k/a Santo C. Scallio, Defendant-Appellant.
    UNITED STATES of America, Plaintiff-Appellee,
    v.
    Samuel SCALLIO, Defendant-Appellant.
    Nos. 89-6351, 89-6363.

    United States Court of Appeals, Fourth Circuit.


    Submitted June 4, 1990.
    Decided June 18, 1990.

    Appeals from the United States District Court for the District of
    Maryland, at Baltimore. John R. Hargrove, District Judge. (CR No. 85508-HAR)
    Samuel Scallio, appellant pro se.
    Catherine Curtis Blake, Assistant United States Attorney, Barbara
    Slaymaker Sale, Assistant United States Attorney, Baltimore, Md., for
    appellee.
    D.Md.
    AFFIRMED IN NO. 89-6351; DISMISSED IN NO. 89-6363.
    Before ERVIN, Chief Judge, and CHAPMAN and WILKINS, Circuit
    Judges.
    PER CURIAM:

    Samuel Scallio appeals from the district court's denial of his Fed.R.Crim.P.
    35(a) motion to correct sentence and his Fed.R.Crim.P. 41(e) motion for return
    of property. We find the appeal of the Rule 35(a) motion untimely and affirm
    the denial of the Rule 41(e) motion.

    No. 89-6363--Rule 35(a) Motion


    2

    Scallio was convicted of several narcotics charges; his Rule 35(a) motion
    contested the $50 special assessment imposed by the sentencing court pursuant
    to 18 U.S.C. Sec. 3013 on the ground that the statute was unconstitutional. The
    district court denied this motion on September 27, 1989. On December 15,
    1989, Scallio filed a notice of appeal and a request for an extension of time to
    file an appeal. The district court granted an extension of time. However, it was
    without authority to do so.

    Rule 35 motions are considered continuations of the criminal proceedings


    against a defendant and, therefore, the ten-day notice of appeal period of
    Fed.R.App.P. 4(b) applies. See United States v. Breit, 754 F.2d 526, 528-29
    (4th Cir.1985); United States v. Guiterrez, 556 F.2d 1217 (5th Cir.1977).
    Scallio's notice of appeal was filed more than ten days after entry of the order
    denying his motion and was also outside the 30-day period established by
    Fed.R.App.P. 4(b) for obtaining an extension of time to appeal based on
    excusable neglect. After expiration of this period, the district court has no
    authority to grant an extension of time in which to appeal. United States v.
    Avendano-Camacho, 786 F.2d 1392, 1394-95 (9th Cir.1986); United States v.
    Cheek, 761 F.2d 461, 462-63 (8th Cir.1985); United States v. Hoye, 548 F.2d
    1271, 1273 (6th Cir.1977).

    The time periods established by Fed.R.App.P. 4 are "mandatory and


    jurisdictional." Browder v. Director, Dep't. of Corrections, 434 U.S. 257, 257,
    264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)). We
    therefore dismiss the appeal in No. 89-6363 because this Court lacks
    jurisdiction to hear the case.

    No. 89-6351--Rule 41(e) Motion


    5

    Scallio also filed a motion for the return of personal property, principally
    jewelry, which was seized in a search of his house in Alabama and of other
    unspecified property taken from him when he surrendered to authorities in
    Baltimore. The district court correctly dismissed this motion because forfeiture

    proceedings have been initiated. The proper method for recovery of property
    which is the subject of civil forfeiture proceedings is the filing of a claim in the
    forfeiture proceedings rather than a Rule 41(e) motion. See, e.g., United States
    v. Castro, 883 F.2d 1018 (11th Cir.1989). We therefore affirm the district
    court's order denying the motion.
    6

    We dispense with oral argument because the facts and legal contentions are
    adequately presented in the materials before the Court and argument would not
    aid the decisional process.

    No. 89-6351--AFFIRMED.

    No. 89-6363--DISMISSED.

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