2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________
No. 10

- 1542

_____________
GOVERNMENT OF THE VIRGIN ISLANDS

v.

ASWA MILLS, Appellant

_____________ On Appea l from the District Court of the U nited States Virgin Islands District Court No. 3

- 02

- cr

- 00157

- 001 District Judge: The Honorable Curtis V. Gómez

Argued December 16, 2010

Before: McK EE
, Chief Judge

, FUENTES and SMITH,

Circuit Judges

(Filed: February 9 , 2011 )

Ashlee M. Gray (argued) 1000 Fred eriksberg Gade2 P.O. Box 756 St. Thomas, U.S. Virgin Islands 00804 Counsel for Appellant

Matthew Phelan (argued) Department of Justice 48B

- 50C Kronprindsens Gade GERS Building, Sec ond Floor St. Thomas, U.S. Virgin Islands 00802 Counsel for Appellee

_____________________
OPINION

_____________________ SMITH, Circuit Judge

.

Under the rules governing appellate procedure , a notice of appeal must ―designate the judgment‖ from w hich the appeal is being taken

. This case presents the question whether a pro se notice of appeal satisfies the judgment

designation requirement when , although it correctly ident ifies the parties to the appeal, the nature of the case, and the court to whi ch the appeal is being taken, it erroneously references the docket number and trial date of an earlier case involving the same parties. We hold that where, as here, the surrounding circumstances make clear which judgment the appellant intend s to appeal an d the appellee is not prejudiced b y the errors contained in the notice , the errors are not fatal to the appeal

.3 I. Background

On April 6, 2000, the appellant Aswa Mills was tried and convicted of assault and battery in the Territorial Court of the Virgin I slands . We will refer to this case as ―the assault case.‖ Mills was se ntenced to 30 da ys in custody , which he served. He filed an appeal almost a year later, but quickly moved to withdraw it, perhaps concluding that the appeal was either too late or poi ntless. On July 2, 2001, the motion to withdraw was granted by t h e Appellate Division of the District Court for the Virgin Islands (―Appellate Division‖)

, the court to which direct appeals from judgments entered by the Territorial Court we re taken until t he establishment of the Virgin Islands Supreme Court. See 48 U.S.C. § 1613a.

The assault case was not Mills ‘ only run

- in with the criminal justice system in 2000. In early 2000, Mills was charged in the Territorial Court with ( among other offenses ) fir st

- degree murder. We will refer to this case as ―the murder case.‖ A jury convicted Mills on February 22, 2002, and, o n March 19, 2002, Mills filed a pro se notice of appeal

. 1 I t is undisputed that the notice was an attempt to appeal the not

yet

- entered judgment in the murder case. The handwritten notice reads as follows:

1 Mills was represented during the murder trial, but he elected to file the notice pro se because his trial counsel was not planning to represent him on appeal and his appellate counsel h ad not yet entered an appearance.4 United States District Court for the Appeals United States District for the Appeals District of U.S. Virgin Islands

File number 525/1999 re: 525

– 1 999 [ the case number for the assa ult case]

Government of the Virgin Islands

v. Aswa Mills

Notice is hereby given that the Government of the Virgin Islands v. Aswa Mills hereby appeal to the United States Court of Appeals for the Second Circuit from the final judgment from an order of conviction entered on April 6, 2000. Notice is hereby given the Government of the Virgin Islands v . Aswa A. Mills is in pursuant to 18 U.S.C.A. complete Annotation review 3504(a)2, 18 U.S.C.A. 3731, and 18, 3500. Notice is hereby stating order of U.S.C. A. 18, 2248 a return of [illegible].

In April 2002, the Territorial Court sentenced Mills to life without parole, and judgment was formally entered on June 28, 2002.

The Clerk of the Territorial Court determined t hat Mills‘ notice of appeal pertained to the murder case and

, on September 1 2 , 2002, transmitted the record to the Appellat e Division, which created a docket for the appeal

. The dockets5 of both the Territorial Court and Appellate Division indicated that the appeal related to the murder case, not the assault case.

On September 17, 2002, the C lerk of the Appellate Division sent Mills ‘ attorney a letter, a copy of which was mailed to the government

. The letter referenced the case number for the murder case , and warned that Mills‘ appeal would b e dismissed if he did not pay the required docketing fee and submit a transcript purchase order. Mills paid the fee and submitted a transcript order in early October 2002.

On April 3, 2003 , t he C lerk issued a briefing schedule

. T he schedule , which a lso referenced the murder case num ber and was sent to both sides, stated that Mills‘ opening brief was due by May 13, 2003. Mills‘ attorn ey requested and was granted leave to file the brief as late as January 1 5

, 2004. Still, Mills‘ brief was not filed u ntil May 14 , 2004. Although it was filed late, the brief clearly indicated that Mills was challenging the murder conviction, not the old assault conviction

.
In June 2004, the government moved to dismiss the appeal, arguing that Mills‘ notice of appeal was fatally defective. In 2006

, over two years after the motion had been filed, Mills‘ attorney finally filed a response

. Not long thereafter

, the Virgin Islands Supreme Court disbarred Mills‘ attorney , and a new attorney was appointed to represent Mills

.
After Mills‘ new attorney had appeared, the Appellate Division held a status conference and requested supplemental briefing on the motion to dismiss, which the pa rties dutifully provided. On February 5, 2010 , the Appellate Division6 granted the motion to dismiss . It conclud ed that it could not entertain Mills‘ appeal because his notice of appeal failed to comply with Virgin Islands Rule of Appellate Procedure 4(c), under which a notice must ―designate the judgment . . . appealed from.‖ The notice wa s insufficient, the Court opined

, because it listed the case number for, and the date of the trial in, the assault case, and did not reference the murder case. The court so held eve n though the government had

n ever represented that it was actually prejudic ed or misled by the defects in the notice. 2

Mills filed the instant appeal ( this time using a flawless notice of appeal).

II. Jurisdiction

The Appellate Division had jurisdiction u nder 48 U.S.C. § 1613a(a) . This Court has jurisdiction under 48 U.S.C. § 1613a(c).

2 The gove rnment had also argued that Mills‘ notice was untimely because it was filed before judgment was entered in the murder case. The Appellate Division rightly rejected this argument. As the government now concedes, the March 19 notice, which was filed after the jury‘s guilty verdict was announced but before the formal entry of judgment, was timely under V irgin Islands Rule of Appellate Procedure 5(b)(1), which provides that ―[a] notice of appeal filed after the announcement of a decision, sentence, or order

— b ut before entry of the judgment or order

— is treated as filed on the date of and after the entry of judgment.‖ See also Firs T ier Mortg. Co. v. Inv estors Mortg. Ins. Co. , 498 U.S. 269, 276

– 77 (1991) (applying the fede ral version of Rule 5(b)(1)).7 III. Standard of Review

The Appellate Division‘s decision rests on an interpretation of the Virgin Islands Rule s of Appellate Procedure . The Rules were adopted by the Appellate Division and have the status of local rules

. See Guam Sasaki Cor p. v. Diana’s Inc. , 881 F.2d 713, 715 (9th Cir. 1989). The law of this Circuit is not clear as to the standard of review that applies to a court‘s interpretation of its own local rules. We take this opportunity to offer clarification

.

When we first add ressed the issue, we held that an appellate court generally owes deference to a district court‘s interpretation of its local rules. United States v. Miller , 624 F.2d 1198, 1200

– 01 (3d Cir. 1980) (citing Hawes v. Club Ecuestre El Comandante , 535 F.2d 140, 143

– 44 (1st Cir. 1976); Lance, Inc. v. Dewco Servs., Inc. , 422 F.2d 778, 783

– 84 (9th Cir. 1970)) ; see also United States v. Costanzo , 740 F.2d 251, 258

– 59 (3d Cir. 1984) (noting in passing that ―the interpretation of the local rules of a district court by one of its judges is entitled to deference‖)

. Miller recognizes that the court that promulgates a rule is usually the best arbiter of its meaning.

M ore recent cases from this Circuit , however, seem to treat a court‘s interpretation of one of its local r ules as a garden

- variety legal issue, and state that a plenary standard of review applies

. D’Iorio v. Majestic Lanes, Inc. , 370 F.3d 354, 356 n.1 (3d Cir. 2004) (―We . . . exercise plenary review over the District Court‘s interpretation of the local rules at issue.‖); Anchorage Assocs. v. V.I. Bd. of Tax Review , 922 F.2d 168, 171, 175

– 76 (3d Cir. 1990) (―The issue presented by the district court‘s application and interpretation of [one of8 its own local rules] is . . . one over whi ch we exercise plenary

rev iew.‖ (citing Dent v. Cunningham , 786 F.2d 173, 175 (3d Cir. 1986) (appellate review is plenary where the ―issues involve the selection, interpretation, and application of legal precepts‖) ) )

.
Our more recent decisions must be disregarded to the extent th ey are at odds with Miller

. See Holland v. N.J. Dep’t of Corr ., 246 F.3d 267, 278 n.8 (3d Cir. 2001) (―[T]o th e extent that [a case within this C ircuit] is read to be inconsistent with earlier case law, the earlier case law . . . controls. ‖ (citing O. Hom mel Co. v. Ferro Corp. , 659 F.2d 340, 354 (3d Cir. 1981)) )

. This brings the law of this Circuit into harmony with the law of our sister circuits on the issue

. See Mann v. Taser Int’l, Inc. , 588 F.3d 1291, 1302 (11th Cir. 2009) (appellate court owes defer ence to a district court‘s interpretation of its local rules) ; Crowley v. L.L. Bean, Inc.

, 361 F.3d 22, 25 (1st Cir. 2004) (same) ; Whitfield v. Scully

, 241 F.3d 264, 270

– 71 (2d Cir. 2001) (same) ; Smith v. Vill

. of Maywood , 970 F.2d 397, 400 (7th Cir. 1992) (―Generally speaking, we prefer to defer to the district courts when interpreting their local rules.‖ ) ; Guam Sasaki , 881 F.2d at 715 (same) ; 12 Charles A lan Wright et al., Federal Practice & Procedure § 3153 ( 2d ed. 1997 ) (collecting cases)

.

Notwithstan ding Miller ‘s general rule that deference is owed to a court‘s interpretation of its local rules , we believe that a plenary standard of review is appropriate in this case. A lthough the Appellate Division‘s decision was technically based on an interpretati on of the Virgin Islands Rules of Appellate Procedure, the Court noted that the V irgin Islands Rules are identical in relevant respects to the Federal Rul es of Appellate Procedure. Accordingly, it relied exclusively on9 cases applying the Federal Rules to justify dismissal of the appeal. As a practical matter, then, the Appellate Division‘s decision rests on an interpre tation of the Federal Rules, which requires us to conduct plenary review

. See L

- 3 Commc’ns Corp. v. OSI Sys., Inc. , 607 F.3d 24, 27

– 28 (2d Cir. 2010) (plenary standard of review applies to ―a district court‘s interpretation of the Federal Rules of Appellate Procedure‖); In re Paoli R.R. Yard PCB Litig. , 221 F.3d 449, 459 (3d Cir. 2000) ( same, regarding the Federal Rules of Civil Procedure) ; Miller , 624 F.2d at 1200

– 0 2 (exercising plenary review over a dist rict court‘s interpretation of one of its l ocal rule s insofar

as the rule simply incorporated state law , interpretations of which are subject to plenary review ); cf. Zacchini v. Scripps

Howa rd Broad. Co. , 433 U.S. 562, 568 (1977) ( holding that the Supreme Court may review state

- court judgments that rest on state law when the state court ―felt compelled by what it understood to be federal constitutional considerations to construe and apply i ts own law in the manner it did ‖).

I V

. Discussion

The Appellate Division dismissed Mills‘ appeal pursuant to V irgin Islands Rule of Appellate Procedure 4(c)

, which provides that a notice of appeal is in effective if it does
not ―designate the judgment [or] order . . . appealed from.‖ Federal Rule of Appellate Procedure 3(c) likewise provides that a notice of appeal must ―designate the judgment [or] order . . . being ap pealed,‖ so decisions applying F ederal Rule 3(c)‘s judgment

- designation requirement will c ontrol our analysis

.
― ̳[D]i smissal of an appeal for failure to comply with procedural rules is not favored. ‘ ‖ United States v. Carelock

,10 459 F.3d 437, 441 (3d Cir. 2006) (quoting Horner Equip. Int’l, Inc. v. Seascape Pool Ctr., Inc. , 884 F.2d 89, 93 (3d Cir. 1989)); see also Foman v. Davis , 371 U.S. 178, 181

– 82 (1962); Polo nski v. Trump Taj Mahal Assocs. , 137 F.3d 139, 144 (3d Cir. 1998) (―[D]ecisions on the merits are not to be avoided on grounds of technical violations of procedural rules.‖). C ourts t herefore construe appeal notices liberally. Smith v. Barry , 502 U.S. 244, 248 (1992); Torres v. Oakland Scavenger Co. , 487 U.S. 312, 316 (1988); Drinkwater v. Union Carbide Corp. , 904 F.2d 853, 858 (3d Cir. 1990). The duty to construe appeal notices libe rally is heightened in cases involving pro se appellants

. See Coppedge v. United States

, 369 U.S. 438, 44 2 n.5 (1962); Smith v. Grams , 565 F.3d 1037, 1041 (7th Cir. 2009) (―When a party proceeds pro se , . . . we will, if possible, liberally construe his a ctions to find Rul e 3‘s requirements satisfied.‖); Campiti v. Matesanz , 333 F.3d 317, 320 (1st Cir. 2003). Indeed, the local rules of this Court and of the Appellate Division provide that a document filed by a pro se litigant after the decision of the tri al court in a criminal case will be treated as a notice of appeal ―despite informality in its form or title, if it evidences an intention to appeal.‖ 3rd Cir. LAR 3 .4 (2010) ; V.I. R. App. P. 4(g).

The purpose ―of a notice of appeal, of course, is to notif y the court of appeals and the opposing party that an appeal is being taken.‖ Torres , 487 U.S. at 323

– 24 (Brennan, J., dissenting). Courts employ a commonsense, purposive approach to determine whether a notice of appeal complies with the rules. See Bank ers Trust Co. v. Mallis , 435 U.S. 381, 387 (1978); Matute v. Procoast Nav igation Ltd. , 928 F.2d 627, 629 (3d Cir. 1991 ) ; Dura Sys., Inc. v. Rothbury Inv s

. , Ltd. , 886 F.2d 551, 555 (3d Cir. 1989); Fed. R. App. P. 3 (c) advisory committee‘s note (―[S]o long a s the function of11 notice is met by the filing of a paper indicating an intention to appeal, the substance of the rule has been complied with.‖). Thus, the Supreme Court has said that ―imperfections in noticing an appeal should not be fatal where no genuin e doubt exists about who is appealing, from what judgment, to which appellate court.‖ Becker v. Montgomery , 532 U.S. 757, 767 (2001).

Under the purposive approach taken by the courts, a notice of appeal that fails to strictly comply with the judgment

- desi gnation requirement will n evertheless be deemed adequate if, ― ̳ in light of all the circumstances, ‘ ‖ Firs T ier , 498 U.S. at 276 n.6 (quoting Torres , 487 U.S. at 316 ) , it is reasonably clear which jud gment the party seeks to appeal

. S ee Foman , 371 U.S. at 18 1

– 82; Torres , 487 U.S. at 322

– 23 (Brennan, J., dissenting); Castillo

- Rodriguez v. INS

, 929 F.2d 181, 183

– 84 (5th Cir. 1991) (―[A] party does not forfeit the right to appeal by designating the wrong judgment as long as it is clear which judgment the party i ntends to appeal.‖)

. This means that a s long as the judgment the party intends to appeal is fairly discernible , a notice of appeal will be deemed sufficient even though it references the wrong case number, see Marshall v. Lancarte , 632 F.2d 1196, 1197 (5t h Cir. 1980); Scherer v. Kelly , 584 F.2d 170, 174

– 75 (7th Cir. 1978), or the wrong judgment date, see Flieger v. Delo , 12 F.3d 766, 770 (8th Cir. 1993); Schneider v. Colegi o de Abogados de P.R. , 917 F.2d 620, 630 (1st Cir. 1990)

.

In ass essing the adequac y of a flawed appeal notice

, a court should also consider whether the opposing party was misled or prejudiced by t he errors. See Sanabria v. United States , 437 U.S. 54, 6 7 n.21 (1978); Bankers Trust , 435 U.S. at 387; Foman , 371 U.S. at 181; Matute , 928 F. 2d at 629 (a12 notice of appeal will generally be deemed sufficient ―unless [it] is so inadequate as to prejudice the opposing party‖); Keller v. Petsock , 849 F.2d 839, 842 (3d Cir. 1988). While a lac k of prejudice will not save a notice that totally fails to comply with the rules

, see Smith , 502 U.S. at 248; Torres
, 487 U.S. at 31 7, courts underst andably are more willing to overlook a notice‘s flaws in the absence of prejudice to the opposing party

, s ee Bankers Trust , 435 U.S. at 387; FirsT ier
, 498 U.S. at 27 6 ( observing that

, where the opposing party is not prejudiced by mistakes made in the process of noticing an appeal , ―[l]ittle would be accomplished by prohibiting the court of appeals from reaching the merits‖ ) ; Matute , 928 F.2d
at 629

.

We now turn to the case at hand

. The Appellate Division concluded that Mills‘ notice did not satisfy the judgment

- designation requirement because it r eferenced the case number for the assault case and indicated that Mills was appealing the crimi nal conviction entered on A pril 6, 2000 (the date of trial in the assault case). Whether Mil ls‘ notice

wa s sufficient is a close question, and there is something to be said for the Appellate Division ‘s analysis. But u ltimately

, we conclude that the notic e, though error

- laden, wa s not so inadequate that it should prevent Mills‘ appeal from being considered on the merits

.

The notice indicated that Mills was appealing the criminal conviction entered in ―Government of the Virgin Islands v. Aswa Mills‖ to the ―United States District Court for the Appeals . . . District of U.S. Virgin Islands.‖ 3 By

3 Oddly, t he body of the notice also said t hat Mills was appealing to the United States Court of Appeals for the Second Circuit. But13 including this information, the notice limited the universe of judgments possibly being appealed to two judgments: t he one entered in the 2000 assault case an d the one entered in the 2002 murder case. 4 The question, then, is whether, ― ̳ in light of all the circumstances, ‘ ‖ Firs T ier , 498 U.S. at 27 6 n.6 (quoting Torres , 487 U.S. at 316) , it was reasonably clear that Mills intended to appeal the murder conviction . If it was, then his appeal should go forward on the merits.

Having examined the notice and the particular facts of the case, we think it was reasonably clear that Mills was appealing the murder conviction

. When Mills filed the notice, the assaul t cas e had long been closed, Mills had completed service of the sentence he received on the assault conviction, he had filed and withdrawn an appeal of the assault conviction, and he had just been convicted in the murder case

. In these circumstances, the gover nment should have known that Mills was appealing the murder conviction, not the dusty old assault conviction. Indeed, the Clerks of both the Territorial Court and Appellate Division figured out that the notice r elated to the murder conviction and proceede d accordingly. M oreover, the government has not established

the Appellate Division did not cite this error as a basis for dismissing the appeal , nor h as the government defended the C ourt‘s dis missal on this ground. In any event, this sort of defect is not fatal when, as here, only one appellate forum is available

. See Keller , 849 F.2d at 842; Freeman v. Petsock , 820 F.2d 628, 630 (3d Cir. 1987).

4 Nothing in the record suggests that there ar e any other cases involving Mills and the G overnment of the Virgin Islands.14 that it was misled into believing that Mills was appealing the assault conviction, or that it was otherwise prejudiced by the

errors contained in Mills‘ notice

. Given the absence of such prejudi ce, ―[l]ittle would be accomplished by prohibiting the [Appellate Division] from reaching the merits‖ of Mills‘ appeal. FirsT

ier , 498 U.S. at 27 6

. 5 W e conclude , then, that Mills‘ notice was sufficient and that his appeal should be considered on the merit s

.
In reaching this conclusion, we have not overlooked United States v. Carelock , 459 F.3d 437 (3d Cir. 2006). In that case, defendant Olanda Carelock , acting through his attorney, fi led a notice of appeal that did not include his name and indeed listed a nother defendant‘s name, listed the wrong case number, listed the wrong district judge‘s name, and referenced the wrong judgment date. Id. at 439. We dismissed the appeal. We reasoned that, although the notice was filed on Carelock‘s electronic docket, it failed to satisfy Federal Rule 3(c), as the circumstances ―compel[led] the conclusion that [the other defendant] (the individual actually named on the notice) and not Carelock intended to take an appeal

, and that the notice had been mistakenly filed in Carelock‘s case.‖ Id. at 443.

Carelock is not controlling . For one thing, Mills‘ notice must be construed with added charit y because it was filed pro se , while Carelock‘s notice was filed by counsel.

5 Even i f the government had been confused, it could have obtained clarification by examining the Territorial Court‘s and Appellate Division‘s dockets, both of which indicated th at Mills‘

a ppeal related to the murder conviction

.15 See Grams , 565 F.3d at 1041; Campiti , 333 F.3d at 3 20. More importantly, unlike the notice in Carelock , Mills‘ notice correctly identified the parties to the appeal, thus narrowing the universe of judgments potentially being challenged to two. And although Mills‘ notice, like Carelock‘s, listed the
wrong case number and judgment date, the surrounding circumstances made clear which judgment Mills intended to appeal. No such clarifying circumstances were present in Carelock . I n fact, the circumstances there led the government to believe that the individua l actually na med on the notice, not Carelock, intended to take an appeal and that the notice had inadvertently b een filed on Carel ock‘s docket. See 459 F.3d at 443 & n.9.

V. Conclusion

We acknowledge that Mills‘ notice of appeal wa s rife with errors. If courts took a formalistic approach to ju dging the sufficiency of appeal notices, Mills‘ notice would surely be held insufficient. But our jurisprudence has eschew ed formalism in favor of a contextual approach that construes

a ppeal notices liberally, especially in cases that , like this one, involve pro se appellant s . Viewed through an appropriately forgiving len s, Mills‘ notice wa s sufficient, if just barely. W e will reverse the judgment of the Appellate Division and remand f or further proceedings.