2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-9-2011

Gov't of the V.I. v. Aswa Mills

Precedential or Non-Precedential: Precedential

Docket No. 10-1542

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 10-1542

_____________

GOVERNMENT OF THE VIRGIN ISLANDS

v.

ASWA MILLS,

 Appellant

_____________

 

On Appeal from the District Court

of the United States Virgin Islands

District Court No. 3-02-cr-00157-001

District Judge: The Honorable Curtis V. Gómez 

Argued December 16, 2010

Before: McKEE, Chief Judge, FUENTES and SMITH,

Circuit Judges

(Filed: February 9, 2011)

 

Ashlee M. Gray (argued)

1000 Frederiksberg Gade
2

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, Second 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 which 

the appeal is being taken. This case presents the question 

whether a pro se notice of appeal satisfies the judgmentdesignation requirement when, although it correctly identifies 

the parties to the appeal, the nature of the case, and the court 

to which 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 intends to appeal and the appellee is not prejudiced 

by 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 Islands. We will refer to this case as ―the assault 

case.‖ Mills was sentenced to 30 days 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 pointless. On July 2, 2001, the motion to 

withdraw was granted by the 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 were taken until the 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) 

first-degree murder. We will refer to this case as ―the murder 

case.‖ A jury convicted Mills on February 22, 2002, and, on 

March 19, 2002, Mills filed a pro se notice of appeal.

1

 It is 

undisputed that the notice was an attempt to appeal the notyet-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 had 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: 525–1999 [the case 

number for the assault 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 that 

Mills‘ notice of appeal pertained to the murder case and, on 

September 12, 2002, transmitted the record to the Appellate 

Division, which created a docket for the appeal. The dockets 
5

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 Clerk 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 be 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, the Clerk issued a briefing schedule. 

The schedule, which also referenced the murder case number 

and was sent to both sides, stated that Mills‘ opening brief 

was due by May 13, 2003. Mills‘ attorney requested and was 

granted leave to file the brief as late as January 15, 2004. 

Still, Mills‘ brief was not filed until 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 parties dutifully 

provided. On February 5, 2010, the Appellate Division 
6

granted the motion to dismiss. It concluded 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 was 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 even though the government had 

never represented that it was actually prejudiced 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 under 48 

U.S.C. § 1613a(a). This Court has jurisdiction under 48 

U.S.C. § 1613a(c). 

 

2

The government 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 Virgin 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—but before entry of the judgment or order—is treated as 

filed on the date of and after the entry of judgment.‖ See also 

FirsTier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S. 269, 

276–77 (1991) (applying the federal version of Rule 5(b)(1)).
7

III. Standard of Review

The Appellate Division‘s decision rests on an 

interpretation of the Virgin Islands Rules of Appellate 

Procedure. The Rules were adopted by the Appellate 

Division and have the status of local rules. See Guam Sasaki

Corp. 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 addressed 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. 

More recent cases from this Circuit, however, seem to 

treat a court‘s interpretation of one of its local rules 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 of 
8

its own local rules] is . . . one over which we exercise plenary 

review.‖ (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 they 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 the 

extent that [a case within this Circuit] is read to be 

inconsistent with earlier case law, the earlier case law . . . 

controls.‖ (citing O. Hommel 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 deference 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 Alan Wright et al., Federal Practice & 

Procedure § 3153 (2d ed. 1997) (collecting cases). 

Notwithstanding 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. 

Although the Appellate Division‘s decision was technically 

based on an interpretation of the Virgin Islands Rules of 

Appellate Procedure, the Court noted that the Virgin Islands

Rules are identical in relevant respects to the Federal Rules of 

Appellate Procedure. Accordingly, it relied exclusively on 
9

cases applying the Federal Rules to justify dismissal of the 

appeal. As a practical matter, then, the Appellate Division‘s 

decision rests on an interpretation 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 1200–02 (exercising plenary review over a 

district court‘s interpretation of one of its local rules insofar 

as the rule simply incorporated state law, interpretations of 

which are subject to plenary review); cf. Zacchini v. ScrippsHoward 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 its own law in the manner it did‖). 

IV. Discussion

The Appellate Division dismissed Mills‘ appeal 

pursuant to Virgin Islands Rule of Appellate Procedure 4(c), 

which provides that a notice of appeal is ineffective 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 appealed,‖ so decisions applying Federal Rule 

3(c)‘s judgment-designation requirement will control our 

analysis. 

― ̳[D]ismissal 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); Polonski 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.‖). Courts therefore 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 liberally is heightened in cases 

involving pro se appellants. See Coppedge v. United States, 

369 U.S. 438, 442 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 actions to find 

Rule 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 trial 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 

notify 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 Bankers Trust Co. v. Mallis, 435 U.S. 381, 

387 (1978); Matute v. Procoast Navigation Ltd., 928 F.2d 

627, 629 (3d Cir. 1991); Dura Sys., Inc. v. Rothbury Invs., 

Ltd., 886 F.2d 551, 555 (3d Cir. 1989); Fed. R. App. P. 3(c)

advisory committee‘s note (―[S]o long as the function of 
11

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 genuine 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-designation requirement will nevertheless be 

deemed adequate if, ― ̳in light of all the circumstances,‘‖ 

FirsTier, 498 U.S. at 276 n.6 (quoting Torres, 487 U.S. at 

316), it is reasonably clear which judgment the party seeks to 

appeal. See Foman, 371 U.S. at 181–82; 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 intends to 

appeal.‖). This means that as 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 (5th 

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. Colegio de 

Abogados de P.R., 917 F.2d 620, 630 (1st Cir. 1990). 

In assessing the adequacy of a flawed appeal notice, a 

court should also consider whether the opposing party was 

misled or prejudiced by the errors. See Sanabria v. United 

States, 437 U.S. 54, 67 n.21 (1978); Bankers Trust, 435 U.S. 

at 387; Foman, 371 U.S. at 181; Matute, 928 F.2d at 629 (a 
12

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 

lack 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 317, courts understandably are more willing to 

overlook a notice‘s flaws in the absence of prejudice to the 

opposing party, see Bankers Trust, 435 U.S. at 387; FirsTier, 

498 U.S. at 276 (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 referenced the 

case number for the assault case and indicated that Mills was 

appealing the criminal conviction entered on April 6, 2000 

(the date of trial in the assault case). Whether Mills‘ notice 

was sufficient is a close question, and there is something to be 

said for the Appellate Division‘s analysis. But ultimately, we 

conclude that the notice, though error-laden, was 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, the body of the notice also said that Mills was appealing 

to the United States Court of Appeals for the Second Circuit. But 
13

including this information, the notice limited the universe of 

judgments possibly being appealed to two judgments: the one 

entered in the 2000 assault case and the one entered in the 

2002 murder case.4 The question, then, is whether, ― ̳in light 

of all the circumstances,‘‖ FirsTier, 498 U.S. at 276 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 assault case 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 government 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 related to the murder conviction and proceeded 

accordingly. Moreover, the government has not established

 

the Appellate Division did not cite this error as a basis for 

dismissing the appeal, nor has the government defended the 

Court‘s dismissal 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 are any other cases 

involving Mills and the Government 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 

prejudice, ―[l]ittle would be accomplished by prohibiting the 

[Appellate Division] from reaching the merits‖ of Mills‘ 

appeal. FirsTier, 498 U.S. at 276.

5 We conclude, then, that 

Mills‘ notice was sufficient and that his appeal should be 

considered on the merits.

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, filed a notice of appeal that did not include his name 

and indeed listed another 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 charity because it was 

filed pro se, while Carelock‘s notice was filed by counsel. 

 

5

Even if 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 that Mills‘ 

appeal related to the murder conviction. 
15

See Grams, 565 F.3d at 1041; Campiti, 333 F.3d at 320. 

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. In fact, the circumstances there led the government 

to believe that the individual actually named on the notice,

not Carelock, intended to take an appeal and that the notice 

had inadvertently been filed on Carelock‘s docket. See 459 

F.3d at 443 & n.9. 

V. Conclusion

We acknowledge that Mills‘ notice of appeal was rife 

with errors. If courts took a formalistic approach to judging 

the sufficiency of appeal notices, Mills‘ notice would surely

be held insufficient. But our jurisprudence has eschewed

formalism in favor of a contextual approach that construes 

appeal notices liberally, especially in cases that, like this one, 

involve pro se appellants. Viewed through an appropriately 

forgiving lens, Mills‘ notice was sufficient, if just barely. We 

will reverse the judgment of the Appellate Division and 

remand for further proceedings.