                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-18-2006

USA v. Carelock
Precedential or Non-Precedential: Precedential

Docket No. 05-3515




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                                       PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                     _________

                      No. 05-3515
                      _________


            UNITED STATES OF AMERICA

                            v.

               OLANDA L. CARELOCK,
                                            Appellant
                       _________

     On Appeal from the United States District Court
                for the District of New Jersey
                 (D.C. Crim. No. 95-00415-1)
    District Judge: The Honorable Dennis M. Cavanaugh
                         _________

                 Argued July 10, 2006
  Before: SMITH, ALDISERT and ROTH, Circuit Judges.

                 (Filed: August 18, 2006)

Richard Coughlin, Esq.
Kevin F. Carlucci, Esq. (ARGUED)
Louise Arkel, Esq.
Office of Federal Public Defender
972 Broad St., 4th Floor
Newark, NJ 07102

       Counsel for Appellant

Christopher J. Christie, Esq.
George S. Leone, Esq.
Sabrina G. Comizzoli, Esq. (ARGUED)
Office of United States Attorney
970 Broad St.
Newark, NJ 07102

       Counsel for Appellee

                           _________

                OPINION OF THE COURT
                      _________

ALDISERT, Circuit Judge.

       Olanda Carelock appeals the sentence that he received
following the revocation of his supervised release. He argues
that the sentence—14 months’ imprisonment and 36 months’
supervised release (which was reduced to 22 months on account
of the 14-month period of incarceration)—is unreasonable.1

       1
          Carelock has already served his term of imprisonment,
but still remains subject to his term of supervised release. He
will begin serving that portion of his sentence upon his release
from the New Jersey State Department of Corrections, where he

                               -2-
Because Carelock failed to file a timely notice of appeal that
complied with the requirements of Rule 3(c) of the Federal
Rules of Appellate Procedure or was the functional equivalent
of what the rule requires, we will dismiss for lack of
jurisdiction.2

                               I.

       In light of our jurisdictional concerns surrounding
Carelock’s notice of appeal, we need not discuss the facts
underlying the District Court’s revocation of his term of
supervised release and instead will focus on those events that
followed the filing of the District Court’s judgment on April 25,
2005. Four days after that date, on April 29, 2005, Carelock’s
counsel electronically filed a notice of appeal with the District
Court. Regrettably, although the notice was filed in Carelock’s


is serving a concurrent state sentence with a maximum
expiration date of December 2007. Because Carelock still
remains subject to this term of supervised release, his appeal is
not mooted by the completion of his term of federal
imprisonment. Cf. Spencer v. Kemna, 523 U.S. 1, 8 (1998)
(stating that a parolee’s challenge to his conviction always
satisfies Article III’s case-or-controversy requirement because
the restrictions imposed by the terms of the parole currently
being served constitute a concrete injury).
       2
        The District Court had jurisdiction over Carelock’s case
pursuant to 18 U.S.C. §§ 3231 (conferring jurisdiction to hear
cases involving crimes against the United States) and 3583(e)
(conferring jurisdiction to modify or revoke supervised release).

                               -3-
case in the District Court’s electronic filing system, it had the
wrong defendant’s name, the wrong docket number, the wrong
district court judge’s name, and the wrong judgment date. The
notice instead bore the name and case information of Omar
Tecat, a criminal defendant also represented by Carelock’s
counsel. The District Court clerk’s office acknowledged receipt
of the notice on April 29, 2005, but also issued a quality control
message noting these errors.3 App. at 2. Carelock’s counsel
was advised by the District Court clerk’s office that the
defective notice of appeal pertained to Omar Tecat and not
Olanda Carelock.4 App. at 7. The clerk later noted on the


       3
           The docket entry for that filing stated:

       CLERKS OFFICE QUALITY CONTROL
       MESSAGE - The [1] Notice of Appeal submitted
       by Kevin Carlucci, Esq contains the following
       error. The docket number and case caption does
       not match the docket number and case caption of
       this case. The docket sheet is on paper docket and
       not on the computer system. This submission will
       remain on the docket unless otherwise ordered by
       the court. This message is for informational
       purposes only. PLEASE FILE THE APPEAL IN
       THE PROPER CASE. . . .

App. at 2.
       4
          The docket entry indicating this notification of
Carelock’s counsel stated:


                                 -4-
docket sheet that Carelock’s case was not even subject to e-
filing in the District Court at this time.5 App. at 2.

       At oral argument, Carelock’s counsel explained that he
had drafted a proper notice for Carelock, but accidentally
electronically filed the notice of appeal for Omar Tecat instead.
When the District Court notified him of a possible error,
however, Carelock’s counsel acknowledged that he took no
immediate action that corrected the problem. He stated that
upon receiving notification of an error from the Court, he
reviewed a printout copy of the notice of appeal (the one that
bore Carelock’s name and information) and concluded that there
was nothing wrong. At this time, Carelock’s counsel neglected


       Notice of Appeal Filed. (Clerk’s Note: Counsel
       filed a Notice of Appeal in this case on 4/29/05
       electronically. Counsel advised at that time that
       the Notice of Appeal pertained to Omar Tecat in
       CR 02-575)

App. at 7.
       5
           That docket entry stated:

       Clerk's Quality Control Message: Document [3]
       NOTICE OF DOCKETING filed by the USCA
       should have been filed in the traditional manner,
       on paper, as this case is not subject to e-filing at
       this time, as previously explained on 7/19/05. (ck)

App. at 2.

                                -5-
to review the document that he had actually electronically filed
with the District Court.

        On July 25, 2005, the case was docketed in this Court.
That day, the clerk’s office of this Court sent a letter to the
parties notifying them of the possible jurisdictional defect in this
appeal owing from the incorrect notice of appeal. On August 4,
2005, we received a response from Carelock’s counsel
explaining the mistake and arguing that the mere act of
electronically filing the defective notice in Carelock’s file
should have served as the functional equivalent of a notice of
appeal. Aug. 4, 2005 letter to the clerk of this Court (citing In
re Continental Airlines, 125 F.3d 120, 129 (3d Cir. 1997)). That
same day, we received a corrected notice of appeal that bore
Olanda Carelock’s name and case information. It bears
comment that this attempt to explain and correct the April 29,
2005 notice took place a little over 90 days after the mistake
actually had been made and counsel had been alerted that there
was a problem with the electronic filing.

       On August 8, 2005, we received the government’s
response, wherein it argued that Carelock’s April 29 notice of
appeal does not comply with the content requirements of Rule
3 of the Federal Rules of Appellate Procedure. Because of this
defect, it contends that we lack jurisdiction to hear this appeal
because Carelock failed to file a proper notice of appeal of
Carelock’s case within the ten-day window of Rule 4(b)(1)(A)
of the Federal Rules of Appellate Procedure.

                                II.



                                -6-
       “An appeal permitted by law as of right from a district
court to a court of appeals may be taken only by filing a notice
of appeal with the district clerk within the time allowed by Rule
4.” Rule 3(a)(1), Federal Rules of Appellate Procedure. “Rule
3 and Rule 4 combine to require that a notice of appeal be filed
with the clerk of the district court within the time prescribed for
taking an appeal [and, because] the timely filing of a notice of
appeal is ‘mandatory and jurisdictional,’ [] compliance with the
provisions of those rules is of the utmost importance.” Rule 3,
Advisory Committee Note, Federal Rules of Appellate
Procedure (internal citations omitted) (cited with approval in
Torres v. Oakland Scavenger Co., 487 U.S. 312, 315 (1988));
Poole v. Fam. Ct. of New Castle County, 368 F.3d 263, 264 (3d
Cir. 2004) (“The timeliness of an appeal is a mandatory
jurisdictional prerequisite.”).6 Per Rule 4, a notice of appeal

       6
           The question has recently arisen in the courts of
appeals as to whether Rules 3 and 4 of the Federal Rules of
Appellate Procedure are rules that govern subject-matter
jurisdiction (that may not be waived) or are merely “inflexible
claim-processing” rules (that may be waived). This concern was
sparked by the Supreme Court’s recent holdings in Eberhart v.
United States, 126 U.S. 403, 407 (2005) (per curiam) (holding
that Rule 33 of the Federal Rules of Criminal Procedure is an
“inflexible claim-processing rule” that may be waived if not
raised), and Kontrick v. Ryan, 540 U.S. 443, 455-456 (2004)
(similarly holding that Rules 4004 and 9006 of the Federal
Rules of Bankruptcy Procedure are “claim-processing rules”).
Although the language and commentary of the rules, along with
their prior treatment by the Supreme Court and this Court,
strongly support the conclusion that Rules 3 and 4 govern

                                -7-
“must be filed in the district court within 10 days after the later
of: (i) the entry of either the judgment or the order being
appealed; or (ii) the filing of the government’s notice of appeal.”
Rule 4(b)(1)(A), Federal Rules of Appellate Procedure. Here,
the judgment was entered on April 25, 2005, so Carelock had
ten days from that date in which to file his notice of appeal. The
only document received within that time-window was the notice
of appeal bearing Omar Tecat’s name that was filed on April 29,
2005. The corrected notice of appeal, which we received on
August 4, 2005, did not satisfy Rule 4’s time requirements.7

       We must then examine the April 29 notice of appeal to
see whether it may properly serve as Carelock’s notice of appeal
for purposes of Rule 4’s timing requirements. To qualify as a
notice of appeal, the filing must meet the requirements of Rule
3(c)(1), which states that a notice of appeal must:

       (A)    specify the party or parties taking the
              appeal by naming each one in the caption


subject-matter jurisdiction, we need not answer this question at
this time because waiver is not implicated here. The
government properly raised the defective and untimely nature of
Carelock’s notice of appeal in its response to the clerk.
       7
           Carelock did not file a motion for an extension of time
to file a notice of appeal pursuant to Rule 4(b)(4) of the Federal
Rules of Appellate Procedure. Moreover, even had such a
motion been made, Rule 4(b)(4) only allows a maximum
extension of 30 days, which would not have cured the untimely
nature of the corrected notice of appeal.

                                -8-
              or body of the notice . . .;

       (B)    designate the judgment, order, or part
              thereof being appealed; and

       (C)    name the court to which the appeal is
              taken.

Unfortunately for Carelock, the April 29 notice, which bears
Omar Tecat’s name and case information, meets only one of
these three requirements—the notice correctly names the court
to which the appeal would be taken.

                               III.

        “[T]he purpose of [Rule 3(c)] is to ensure that the filing
provides sufficient notice to other parties and the courts.” Smith
v. Barry, 502 U.S. 244, 248 (1992). Because, however,
“[d]ismissal of an appeal for failure to comply with procedural
rules is not favored,” Horner Equip. Intern., Inc. v. Seascape
Pool Ctr., Inc., 884 F.2d 89, 93 (3d Cir. 1989), we take note of
the leeway we possess in assessing compliance with Rule 3(c).
The Supreme Court has stated that courts should “liberally
construe the requirements of Rule 3.” Smith, 502 U.S. at 248
(citations omitted). Under this mandate, “if a litigant files
papers in a fashion that is technically at variance with the letter
of a procedural rule, a court may nonetheless find that the
litigant has complied with the rule if the litigant’s action is the
functional equivalent of what the rule requires.” Torres, 487
U.S. at 316-317. That is to say, “[i]f the document meets [the
requirements of Rule 3(c),] it does not matter that the appellant

                                -9-
intended it to serve some other function.” Moore’s Federal
Practice § 303.21[2] (Mathew Bender 3d ed.). “This principle
of liberal construction does not, however, excuse noncompliance
with the rule. . . . Although courts should construe Rule 3
liberally when determining whether it has been complied with,
noncompliance is fatal to an appeal.” Smith, 502 U.S. at 248.

        Here, it is undisputed that the April 29 notice of appeal
does not strictly comply with the requirements of Rule 3(c).
Acknowledging this deficiency, Carelock argues that his mere
act of electronically filing a notice appeal in his case is the
functional equivalent of what Rule 3(c) requires. For support he
relies upon In re Continental Airlines, wherein we stated:

       [I]n the context of Rule 3(c), jurisdiction may be
       appropriate if a litigant’s actions are functionally
       equivalent to the requirements of Rule 3(c).
       Masquerade Novelty v. Unique Industries, 912
       F.2d 663, 665 (3d Cir. 1990). We have applied
       this construction numerous times to support a
       finding of jurisdiction in the absence of strict,
       technical compliance with the requirements of
       Rule 3(c). See id. (where the contents of
       documents filed within the time prescribed to file
       a notice of appeal contain the information
       required by Rule 3(c), the party will be deemed to
       have complied with the rule and the case will not
       be dismissed for lack of appellate jurisdiction);
       [Dura Sys., Inc. v. Rothbury Invs., Ltd., 886 F.2d
       551, 554-555 (3d Cir. 1989)] (Consent Order filed
       by the appellants within the time prescribed to file

                              -10-
       a notice of appeal served as the “functional
       equivalent” of what Rule 3(c) required such that
       the technical failure of the actual notice of appeal
       was not a bar to jurisdiction); see also In re
       Bertoli, 812 F.2d 136 (3d Cir. 1987) (litigant’s
       filing of a “Notice of Motion for Certification of
       An Interlocutory Appeal” in the district court
       within the thirty-day time period allowed to file a
       notice of appeal was sufficient to satisfy Rule 3(c)
       where the litigant failed to file an actual notice of
       appeal; the document communicated an intention
       to appeal and identified the judgment appealed
       from and the court to which the appeal was
       taken).

125 F.3d at 129. Carelock stresses that because the notice of
appeal was at least filed in his case (and not Omar Tecat’s), and
because electronic filing is a new system, his mere act of filing
a notice should be considered the functional equivalent of what
Rule 3(c) requires.

        We disagree. The mere act of electronically filing the
defective notice of appeal, the contents of which only comply
with one of Rule 3(c)(1)’s three requirements, does not
constitute a functional equivalent of what the rule requires. We
are conscious of our duty to liberally construe the requirements
of Rule 3(c), but we cannot shoehorn this defective notice into
the category of things that we have held to be functional
equivalents. All the cases cited by this Court in Continental
Airlines as examples of functional equivalents deal with the
filing of documents that, although not captioned as notices of

                               -11-
appeal, at least contained the required information of Rule
3(c)(1) and provided notice to the appropriate parties that the
defendants intended to appeal the relevant judgments of the
district courts.8 Carelock’s request that we consider the mere act
of electronically filing the defective notice of appeal to be the
functional equivalent of what Rule 3(c) requires borders upon
asking us to consider his subjective intent in filing the defective
notice. This, however, is not the relevant test. It is “the notice
afforded by a document, not the litigant’s motivation in filing it

       8
          Beyond those examples cited in Continental Airlines,
the Supreme Court and this Court have also considered the
following as being the functional equivalents of what Rule 3(c)
requires: an inmate’s informal pro se brief, Smith, 502 U.S. at
248-249; a defective notice of appeal supplemented by a
subsequent letter to the district court, In re Paoli R.R. Yard PCB
Litig., 916 F.2d 829, 837-838 (3d Cir. 1990); and a combination
of appellants’ “Motion to Certify for Immediate Appeal” and
their reply to appellees’ objection to the certification, Hindes v.
FDIC, 137 F.3d 148, 155-157 (3d Cir. 1998). Key to these
determinations of functional equivalency was (1) that the subject
documents contained all or almost all of the information
required by Rule 3(c) and (2) their effect of providing notice to
the courts and opposing parties. See In re Paoli R.R. Yard PCB
Litig., 916 F.2d at 837-838 (indicating that the Rule 3(c)
information contained in a letter from the appellant to the court
and opposing counsel served to remove any jurisdictional
impediment created by a prior, possibly defective, notice of
appeal); Hindes, 137 F.3d at 156 (“[T]hese documents notify the
parties and the court as to appellants’ specific intention to seek
appellate review of both orders.”).

                               -12-
[that] determines the document’s sufficiency as a notice of
appeal.” Smith, 502 U.S. at 248.

        Simply put, “notice” is “knowledge of the existence of a
fact,” see Blacks Law Dictionary 957 (5th ed. 1979), and here
there is no evidence that either the government or District Court
was or should reasonably have been put on notice by the April
29 notice that Carelock intended to appeal his sentence.9
Rather, the April 29 notice compels the conclusion that Omar
Tecat (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. Accordingly, we must
dismiss Carelock’s appeal for failure to file an effective notice
of appeal within the time requirements of Rule 4(b)(1)(A) of the

       9
           Carelock’s counsel also asserts that he mailed a
courtesy copy of the correct notice to the United States
Attorney’s Office. The government’s counsel, however, stated
at oral argument that she could find no record of the government
having received this document. To the contrary, she claimed
that the government was not aware of this appeal until the case
was docketed in this Court. Carelock’s counsel failed to present
any documentation of such a mailing, and there is no indication
in the record that otherwise supports this assertion.
Accordingly, we are unable to conclude that the government
was put on notice by any such mailing.

      As for the District Court, the notations made on
Carelock’s docket sheet indicate that it may have been aware of
some activity in Carelock’s case, but these are not sufficient to
convince us that it was on notice of Carelock’s intent to appeal.

                              -13-
Federal Rules of Appellate Procedure.

                              IV.

       “To err is human, but to really foul things up requires a
computer.” Farmers’ Almanac (1978). In parting, we note that
the cause of this error was that Carelock’s counsel had
unfortunately failed to double-check the document he had
electronically transmitted to the District Court. Although the
modern use of the computer is a great time-saver, its ease of use
should not assuage the almost obsessive attentiveness that is
required when filing any document with a court. Otherwise, a
scenario such as Carelock’s may occur, which proves the adage
that “a computer lets you make more mistakes faster than any
invention in human history—with the possible exceptions of
handguns and tequila.” Mitch Ratcliffe (quoted in Herb Brody,
The Pleasure Machine: Computers, Technology Review, Apr.
1992, at 31).

                           *****

       We will dismiss the appeal for lack of jurisdiction.




                              -14-
