United States v. Craig Michael Coscarelli, Also Known as John Coscarelli

149 F.3d 342, 1998 U.S. App. LEXIS 17609, 1998 WL 429426

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 30, 1998
• Docket: 96-20264
• Status: Published

Opinions

EDITH H. JONES, Circuit Judge.

The United States alone appealed from a sentencing decision by the district court that did not correctly apply the guidelines for money-laundering in this telemarketing scam prosecution. The panel opinion sustained the government’s position.¹ What concerned the en banc court, however, was the panel majority’s further decision to grant affirmative relief to appellee Coscarelli — who waived his right to appeal in writing, filed no notice of appeal or cross-appeal, and never made any request for relief from his conviction or sentence — by vacating the guilty plea entirely. As an en bane court, we hold that Coscarelli’s failure to file a notice of appeal precludes him from receiving affirmative relief in this court. We have no jurisdiction over any such claim.

The first sentence of Federal Rule of Appellate Procedure 4(b) says, “[i]n a criminal case, a defendant shall file a notice of appeal in the district court within 10 days after the entry either of the judgment or order appealed from, or of a notice of appeal by the Government.” The Supreme Court has described the ten-day limit for filing a notice of appeal in a criminal case as “mandatory and jurisdictional.” United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960) (interpreting language in a predecessor to the current rule). See also United States v. Adams, 106 F.3d 646, 647 (5th Cir.1997) (“This court cannot exercise jurisdiction absent a timely notice of appeal.”) The wording of the rule which requires the notice of appeal to be filed within ten days is as applicable to a defendant’s cross-appeal as it is when the government does not appeal. Coscarelli filed no notice of appeal or cross-appeal from the district court’s sentencing decision.² In a case such as this, an appellate court simply has no authority to grant Coscarelli relief that would expand his rights under the judgment.

Coscarelli’s brief to the en banc court concedes this point, stating:

Even though there are arguments supporting jurisdiction, counsel’s additional research on this issue indicates that the court does not have jurisdiction.

En Banc brief at 3.³

Although Coscarelli does not make any such argument, the dissent may contend that our recent en banc decision in Marts v. Hines, 117 F.3d 1504 (5th Cir.1997), either permits or requires us to exercise discretionary appellate jurisdiction notwithstanding Coscarelli’s failure to file a notice of appeal. This interpretation of Marts would be pure wishful thinking and would flatly contradict the narrow application of Marts to in forma pauperis cases brought under a statute now superseded by the Prison Litigation Reform Act. In Marts, the question was whether an appellate court could sua sponte determine that dismissals of such cases are deemed to be with prejudice unless the district court expressly declares otherwise. Marts represented an effort “to continue our development of procedures to address and dispose appropriately of a continually burgeoning prisoner pro se docket, both at the trial and appellate levels____” Id. at 1504. Marts concludes that:

[I]n cases involving dismissals as frivolous or malicious under the in forma pauperis statute in which the defendant has not been served and was, therefore, not before the trial court and is not before the appellate court, the appellate court, notwithstanding, has the authority to change a district court judgment dismissing the claims without prejudice to one dismissing with prejudice, even though there is no cross-appeal by the obviously non-present “appellee.”

Id. at 1506. Marts either stands or falls on the sole rationale that when federal courts finally adjudicate in forma pauperis litigation their judgments may protect the courts from an onslaught of malicious and frivolous complaints, where the defendants have neither been served with process nor ever appeared in the case.

Not all who join this majority opinion concurred in Marts, but we share a common view of that opinion’s limited holding. Marts accordingly furnishes no basis for a conclusion that appellate jurisdiction exists here to grant relief to Coscarelli.

For the foregoing reasons, based on- the partial reinstatement of the panel opinion, Coscarelli’s guilty plea remains unassailed, but the case is VACATED and REMANDED for resentencing and further proceedings consistent herewith.

1 . On rehearing, we reinstate that portion of the opinion.

2 . Coscarelli's brief explains this decision as follows:

In fact, Mr. Coscarelli elected to accept Judge Gilmore’s sentence as appropriate punishment for his conduct, and filed, upon the advice of the undersigned counsel, a waiver of right of appeal document on February 7, 1996 (1 R. 261). This was done as a matter of strategy to force the government to either appeal or accept the sentence as final.

3 . To support his point Coscarelli correctly relies on Stockstill v. Petty Ray Geophysical, 888 F.2d 1493 (5th Cir.1989), which in turn relies upon a United States Supreme Court case, Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988). In the Torres case, the Court held that the requirements of Rules 3 and 4 are mandatory and jurisdictional and that although the courts of appeals may liberally construe those rules to determine whether compliance exists, the courts may not waive noncompliance. See id. at 317, 108 S.Ct. at 2409.