United States v. Paetzold, 10th Cir. (2009)

FILED
United States Court of Appeals

Tenth Circuit
August 17, 2009

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
ANDREAS W. PAETZOLD,
No. 08-8095
(D.C. No. 2:08-MJ-00034-WFD-1)
(D. Wyo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and

TYMKOVICH, Circuit Judge.
Andreas W. Paetzold appeals from a district court order that dismissed as

untimely his appeal from a magistrate judges judgment of conviction. We have
jurisdiction under 28 U.S.C. 1291 and affirm.
During a visit to Yellowstone National Park in March 2007, Mr. Paetzold
was cited for possession of marijuana and possession of cultural resources, both
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
misdemeanors. His lawyer filed a motion to suppress, which was denied by the
magistrate judge. Shortly thereafter, his lawyer withdrew. Acting pro se,
Mr. Paetzold moved for reconsideration of his motion to suppress. The motion
was denied.
Mr. Paetzold then entered conditional guilty pleas to both charges on
February 27, 2008. The magistrate judge imposed a $1,000 fine and sentenced
him to one year of unsupervised probation. Mr. Paetzolds notice of appeal from
the conviction and sentence was filed in district court on March 19. The notice
asserted that it was the second . . . notice of appeal that has been sent to the
Clerk of the Court in Cheyenne. This first notice of appeal never arrived.
R., Doc. 1 at 1.
Acting without a response from the government, the district court dismissed
the appeal as untimely. It stated that although [a] magistrates judgment in a
criminal case may be appealed within ten days of the date of judgment[,] [citing
D. Wyo. R. Civ. P. 74.1(d), which provides a ten-day deadline for an appeal from
a magistrate-judge judgment in a misdemeanor case], [Mr.] Paetzold filed the
instant Notice of Appeal on March 19, 200[8], some fifteen working days after his
judgment, or five days after his Notice of Appeal was due. 1 R., Doc. 4 at 1-2.
The ten-day deadline excludes intervening Saturdays, Sundays, and certain

holidays. See Fed. R. Crim. P. 45(a)
-2-
Because [Mr. Paetzolds] Notice of Appeal was delinquent, this Court need not
reach the merits of his appeal. Id. at 2.
In a motion to reconsider, Mr. Paetzold included a letter from a delivery
service indicating that his March 7, 2008, shipment to the Clerk of the Court in
Cheyenne, Wyoming . . . was tendered to FedEx with an estimated delivery date
of March 10. Id., Doc. 5 at 2. Unfortunately, said the letter, we have not
been able to locate this shipment since it was given to our FedEx Ground terminal
in Henderson, Colorado on March 7. Id. Mr. Paetzold therefore argued that the
untimely notice should be overlooked because this matter was truly out of [his]
hands, [and] . . . amount[ed] to justifiable excuse. Id. at 1.
Again without any response from the government, the district court denied
the motion for reconsideration in a November 13, 2008, order:
The Court reiterates that Local Civil Rule 74.1(d) requires actual
rather than merely attempted filing of a notice of appeal within ten
days of the date of judgment. While [Mr. Paetzold] has provided,
and now bolstered, excuses as to why he did not meet that deadline,
the effect is the same: [the] notice of appeal was not timely filed.
Id., Doc. 6 at 1.
On November 24, 2008, Mr. Paetzold filed a pleading in the district court
titled Motion to Reconsider and/or Notice of Appeal. Id., Doc. 7 at 1. After
discussing why the court had erred, it stated: [I]f the Court will not accept the
late filing of notice of appeal of the magistrates findings then please consider
-3-
this a notice of appeal of the District[]s Nov. 13 Order to the 10th Cir. Court of
Appeals. Id. at 2. He nonetheless filed another notice of appeal on December 5.
The government concedes that if Mr. Paetzolds November 24 pleading
satisfies the requirements for a notice of appeal under Rule 3(c) of the Federal
Rules of Appellate Procedure, it is timely. The government, however, does not
view this document as a notice of appeal within the meaning of Rules 3 and 4,
Fed. R. App. P., Aplee. Br. at 13, because it is provisional or conditional in
nature and because almost all the pleading seeks relief from the district court, id.
We disagree. Under Rule 3(c)(4), An appeal must not be dismissed for
informality of form or title of the notice of appeal. A pleading comports with
Rule 3(c) as long as it specifies (1) the party taking the appeal, (2) the order
being appealed, and (3) the name of the court to which the appeal is taken.
Berrey v. Asarco Inc., 439 F.3d 636, 642 (10th Cir. 2006). Mr. Paetzolds
pleading meets these requirements.
We now turn to the merits of the district courts order dismissing
Mr. Paetzolds appeal as untimely. Under 18 U.S.C. 3402 his appeal from the
magistrate judges decision lies with the district court. Section 3402, however,
does not contain a filing deadline; instead, the ten-day filing deadline arises under
Rule 58(g)(2)(B) of the Federal Rules of Criminal Procedure. Because this
deadline is not grounded in a statute, it is not jurisdictional. But it is an inflexible
claim-processing rule that cannot be forfeited unless the party asserting the rule
-4-
waits too long to raise the point. Kontrick v. Ryan, 540 U.S. 443, 456 (2004);
see United States v. Mitchell, 518 F.3d 740, 744 (10th Cir. 2008). In this case
there has been no forfeiture by the government, which had not even responded to
Mr. Paetzolds appeal to the district court before the district court dismissed the
appeal.
Nevertheless, courts should be hesitant to enforce claim-processing
deadlines when the opposing party has not objected. Although it may sometimes
be proper for a court to raise a claim-processing rule on its own, these instances
usually involve special circumstances that implicate judicial interests beyond
those of the parties[.] Mitchell, 518 F.3d. at 750. There do not appear to be any
special circumstances here, and the government concedes that the court
committed a procedural error in the sua sponte manner in which it disposed of
[Mr. Paetzolds] appeal. Aplee. Br. at 19. At the same time, however, the
government has stated that if the case were remanded, it would immediately file
its own motion to dismiss under the local rules and Rule 58. Were that to happen,
the district court would have no discretion but to apply the . . . rules, since at that
point they would have been properly invoked by the party they favor. Id. at 20.
Given that the district court would be required to dismiss the appeal, see United
States v. Garduno, 506 F.3d 1287, 1291 (10th Cir. 2007), a remand would be a
useless gesture.
-5-
We AFFIRM the order of the district court.
Entered for the Court
Harris L Hartz
Circuit Judge
-6-

United States v. Paetzold, 10th Cir. (2009)

Uploaded by

Copyright:

Available Formats

United States v. Paetzold, 10th Cir. (2009)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

United States v. Paetzold, 10th Cir. (2009)

Uploaded by

Copyright:

Available Formats

FILED

United States Court of Appeals

August 17, 2009

UNITED STATES OF AMERICA,

ORDER AND JUDGMENT *

Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and

Andreas W. Paetzold appeals from a district court order that dismissed as

The ten-day deadline excludes intervening Saturdays, Sundays, and certain

We AFFIRM the order of the district court.

Entered for the Court

You might also like