United States of America v. Edward Forchion

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 06-1583
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UNITED STATES OF AMERICA
v.
EDWARD FORCHION,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 04-mc-00949)
District Judge: Hon. Stewart J. Dalzell
Submitted Under Third Circuit LAR 34.1(a)
January 25, 2007
Before: SCIRICA, Chief Judge, FUENTES, and CHAGARES, Circuit Judges.
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(Filed: February 7, 2007)
OPINION OF THE COURT
CHAGARES, Circuit Judge.
Appellant Edward Forchion appeals his conviction for possession of a controlled
substance in a national park. Forchion argues that the pertinent national park regulation
unlawfully infringes on his Free Exercise Clause rights under the First Amendment.

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1Duff is not a party to this appeal.
2
Because Forchion failed to file a timely notice of appeal of his conviction to the District
Court, the District Court dismissed Forchion’s appeal for lack of subject matter
jurisdiction. We agree that Forchion’s appeal was untimely, and therefore will affirm the
District Court’s dismissal of Forchion’s appeal.
I.
As we write only for the parties, our summary of the facts is brief. On December
23, 2003, March 20, 2004, and April 17, 2004, National Park Service Rangers stationed at
Independence National Historical Park (“Independence Park”) issued citations to Forchion
for possession of a controlled substance in a national park in violation of 36 C.F.R. §
2.35(b)(2), arising out of Forchion’s possession and use of marijuana during rallies held at
Independence Park on these dates. Forchion and a co-defendant, Patrick Duff, were
charged with, inter alia, unlawful possession of a controlled substance. After a bench trial
before a Magistrate Judge, Forchion and Duff were convicted of misdemeanor marijuana
possession. 1 On November 12, 2004, Forchion was sentenced to a 12-month term of
imprisonment, which was suspended, 12 months of probation, and a $150 fine. Forchion
timely appealed his sentence and conviction to the District Court. Thereafter, the District
Court affirmed Forchion’s conviction, but vacated the sentence and remanded for further
proceedings.

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3
By Order dated January 30, 2006, the Magistrate Judge declined to impose a new
sentence on the grounds that Forchion had essentially completed the one-year probationary
sentence originally imposed in November 2005. On February 14, 2006, Forchion filed a
notice of appeal in the District Court which referred to the Magistrate Judge’s January 30,
2006 sentencing order, and the District Court’s July 22, 2005 Order affirming Forchion’s
conviction and vacating his sentence.
By Order dated February 15, 2006, the District Court dismissed as untimely
Forchion’s appeal of the Magistrate Judge’s January 30, 2006 Order, given that Forchion
failed to file a notice of appeal within 10 days of that Order, as required by FED . R. A PP. P.
4(b). With respect to Forchion’s appeal of the District Court’s July 22, 2005 Order, the
District Court forwarded that appeal to us, noting that it lacked appellate jurisdiction to
review its own decision. By letter dated February 23, 2006, we invited the parties to
submit supplemental filings to address the jurisdictional issue raised by the notice of
appeal. The Government submitted its response to this request on March 6, 2006; it does
not appear that Forchion filed any additional materials. Because the parties have had
ample opportunity to address the jurisdictional question presented, the matter is now ripe
for disposition.
II.
Before reaching the merits of this appeal, we are required to consider whether we
have appellate jurisdiction. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541
(1986). The timeliness of an appeal is a mandatory jurisdictional prerequisite. United

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4
States v. Robinson, 361 U.S. 220, 224 (1960). Based on the undisputed facts, Forchion’s
appeal of the Magistrate Judge’s January 30, 2006 Order was untimely. Like the District
Court, then, we lack jurisdiction to address the merits of Forchion’s challenge, and must
therefore dismiss his appeal.
III.
For the foregoing reason, we affirm the decision of the District Court dismissing
Forchion’s appeal for lack of jurisdiction.

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