Kerner, Pell and Stevens, Circuit Judges.
The defendant, Richard L. Tallman, was convicted by a jury on three counts of violating 18 U.S.C. § 1464, which reads as follows:
"Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both."
Tallman was sentenced on Thursday, December 11, 1969. On Count I, the sentence was for 18 months, the first 60 days to be served in a jail-type institution to begin on Monday, December 29, 1969 and the balance of the 18 months to be suspended. On Counts III and IV, Tallman was placed on probation for 3 years.
At the time of sentencing, the district judge informed Tallman of his right to appeal pursuant to the requirements of Rule 32(a) (2) of the Federal Rules of Criminal Procedure.
The ten day period for filing a notice of appeal expired on Monday, December 22, 1969 without Tallman having filed or caused to be filed a written notice of appeal.
In April 1970, and following his release from imprisonment on February 26, 1970, Tallman filed a motion in this court asking leave to appeal, stating that he made several attempts to appeal within the prescribed ten day period. Among his assertions was a claim that he had twice asked the clerk of the district court to help him perfect his appeal.
By order dated May 8, 1970, this court found it appropriate to follow United States v. Meyers, 406 F.2d 1015, 1016 (4th Cir. 1968), where the court of appeals remanded the case to the district court for a determination of whether the defendant should be allowed to have a belated appeal.
It is to be noted that the government not only did not oppose such procedure but suggested it in its answer to the motion. This court in its order also noted that Rule 32(a) (2), Fed.R.Crim.P., provides in part: "If the defendant so requests, the clerk of the court shall prepare and file forthwith a notice of appeal on behalf of the defendant."
This court ordered the district court to allow the motion papers "to be filed as a timely notice of appeal if, upon hearing, it be found that the clerk refused a timely request by Tallman to file a notice of appeal or that Tallman was otherwise prevented, without fault on his part, from timely filing a notice of appeal."
The district court held a hearing on the matter on June 24, 1970. Tallman, his court-appointed attorney at the time of trial and the deputy clerk of the court all testified at length. In a written memorandum, dated July 21, 1970, the district judge found as a fact that "no one in the office of the clerk of the court refused a timely, or any, request by defendant to file a notice of appeal for him and that defendant was not in any way otherwise prevented from timely filing a notice of appeal herein."
Moreover, the district judge made specific findings of fact refuting the individual claims made by the appellant.
The government first contends that the district court having made specific findings of fact and these not being clearly erroneous, the action below should be affirmed. In support of this proposition, the government cites that part of Rule 52(a) of the Fed.R.Civ.P. reading: "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." This contention overlooks the fact that the present proceeding arises from a criminal case and not from a civil case. Unlike the corresponding civil rule, Rule 23(c) of the Fed.R.Crim.P. does not state the effect which must be given findings in a jury-waived case. Because of this there is a division of authority as to the effect with regard to the ultimate finding of guilt in such a case. However, the matter before us is not at the present moment concerned with an ultimate finding of guilt and on such other matters there seems to be general agreement among the authorities that the "clearly ...