(concurring).
I concur. The December 3 notice is out of time, for we are bound by United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960) and United States v. Berman, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964).
In view of the uncompromising rigidity of interpretation that was given to Rule 37(a) (2) in Berman, we did all that we had power to do when we requested the district court to find whether Statler, having no courthouse representation by professional counsel during the crucial ten days, made any bona fide attempt at the courthouse to file his own notice of appeal during that time.
I point out, as did Justice Black in his dissent for the minority of the Court in Berman, 378 U.S. at 537, 84 S.Ct. 1899, that after sentence a represented would-be appellant is worse off than an unrepresented one, cf. Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). Here, Statler, though on the court records represented by counsel; in fact had no courthouse representation, and was worse off than either a represented or unrepresented would-be appellant. The lawyer who represented him at trial in the district court informed Statler after sentence that he would not file the notice of appeal, but the docket appearance had not been formally withdrawn after sentence nor had the district court been otherwise notified that counsel of record was terminating whatever professional responsibility he may have owed to his convicted client after sentence.
*123After he had sentenced Statler, Judge Murphy granted bail “pending appeal” and it would seem clear that if the sentencing judge had then known that trial counsel was not going to file a notice of appeal for his erstwhile client the judge would have himself, pursuant to Rule 37(a) (2), advised Statler as “ * * a defendant not represented by counsel * •* *>»■