Government of the Virgin Islands v. Aswa Mills

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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

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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 judgment-
designation 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.

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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 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 had not yet
entered an appearance.

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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

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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

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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)).

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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

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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

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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. Scripps-
Howard 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,

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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

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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

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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

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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.

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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.

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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.

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