United States v. Nix ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 99-60069
_______________________
United States of America,
Plaintiff-Appellee,
versus
Kirksey McCord Nix, JR. and John Elbert Ransom
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Southern District of Mississippi
(1:91-CR-40-PR)
_________________________________________________________________
February 12, 2001
Before Kennedy,* Jones, and DeMoss Circuit Judges.
PER CURIAM:**
Kirksey McCord Nix and John Elbert Ransom were convicted
on several counts of conspiracy. Their motion for a new trial was
dismissed by the district court. They attempted to appeal this
ruling but their notices of appeal were filed late, leading to the
dismissal of their appeal. They now appeal from that dismissal.
We find that the district court abused its discretion in
determining that these notices of appeal were not late due to “good
cause or excusable neglect” and reverse and remand.
*
Circuit Judge of the Sixth Circuit, sitting by designation.
**
Pursuant to Local Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in Local Rule 47.5.4.
Nix and Ransom were convicted in a bizarre and much
publicized 1991 case of conspiracy to commit murder-for-hire, wire
fraud, and conspiracy to commit wire fraud. The convictions of Nix
and Ransom were upheld by this circuit. United States v. Sharpe,
995 F.2d 49 (5th Cir. 1993). In 1995, Nix, acting pro se, filed a
motion for a new trial pursuant to Fed. R. Crim. P. 33. Ransom
subsequently joined Nix’s motion for a new trial. Characterizing
this motion for a new trial as frivolous and in bad faith, the
district court denied it on October 8, 1997.1
Under Fed. R. App. P. 4(b)(1)(A)(I), the Defendants had
10 days from the entry of the October 8, 1997 order of denial to
file their notices of appeals. Because October 18, 1997 fell on a
Saturday, the final day on which Nix and Ransom could file their
notices of appeal was Monday, October 20, 1997.
A copy of the October 8, 1997 order was mailed by the
clerk to Nix and Ransom at their respective prison addresses of
record, as reflected in the clerk’s case file. However, both Nix
and Ransom had recently been moved to new prisons, and the clerk of
the court did not send the order to their new addresses.
1
The delay between the 1995 filing of this motion for a new trial and
the district court’s 1997 ruling on it was due to Nix’s and Ransom’s request that
the court refrain from ruling on the motion until after the completion of a trial
in a related matter. Thus, any delay by the district court in ruling on this
motion was occasioned by the defendants’ own request.
2
Neither Nix nor Ransom filed a written change of address
with the clerk of the court. However, both men assert that they
informed the clerk of their new addresses by phone. Both men had
previously received mailings from the district court at their new
addresses, reasonably leading them to believe that their oral
changes of address had been received and processed by the clerk.
Nix’s copy of the order dismissing the motion for a new
trial was mailed by the clerk of the court to his old prison
address and arrived there on October 14, 1997. Nix did not receive
it at his new prison until October 20, 1997, the last day on which
he could file a timely notice of appeal.
Similarly, Ransom’s copy of the order was mailed by the
clerk to his old prison. It did not reach Ransom at his new prison
until October 28, 1997, some 8 days after the deadline for filing
a notice of appeal.
On October 22, two days after the expiration of the
deadline for filing notices of appeal, Nix filed a request for an
extension of the time. That same day, Nix filed his notice of
appeal. Ransom filed his own notice of appeal on October 31, 1997,
some eleven days after the passage of the deadline.
The Government moved to dismiss these appeals because
they were filed late. This court remanded to the district court to
determine whether the filings were late due to excusable neglect or
good cause, pursuant to Fed. R. App. Pro. 4(b)(4).
3
The district court concluded that the late filing of the
notices of appeal was not due to excusable neglect or good cause
and entered an order to that effect. Nix and Ransom appealed this
order. On February 1, 2000 this court again remanded this case to
the district court, this time for an application of the five factor
equitable test for excusable neglect established by the Supreme
Court in Pioneer Investment Services Co. v. Brunswick Ltd.
Partnership, 507 U.S. 380, 113 S.Ct. 1489 (1993). In an order
issued May 31, 2000 the district court again determined that Nix’s
and Ransom’s failure to meet the deadline for filing timely notices
of appeal was not due to excusable neglect or good cause. In yet
another maneuver in this endless pro se litigation, Nix and Ransom
now appeal from this May 31, 2000 district court order.
This court reviews the district court’s determination
that the late filing of the notices of appeal was not due to
excusable neglect or good cause for abuse of discretion. United
States v. Clark, 51 F.3d 42, 43 (5th Cir. 1995). A district court
abuses its discretion when it bases its ruling “on an erroneous
view of the law or on a clearly erroneous assessment of the
evidence.” Dawson v. United States, 68 F.3d 886, 895 (5th Cir.
1995)(quoting Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 405
(1990)).
This matter is governed by the Supreme Court’s decision
in Pioneer, which stands for the principle that the determination
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of “what sorts of neglect will be considered ‘excusable’. . . is
at bottom an equitable one, taking account of all relevant
circumstances surrounding the party’s omission.” Pioneer Inv.
Services, Co., 507 U.S. at 395, 113 S.Ct. at 1498. The Supreme
Court identified five factors to consider in making this equitable
determination: “[1] the danger of prejudice to the [non-filing
party], [2] the length of the delay and its [3] potential impact on
judicial proceedings, [4] the reason for the delay, including
whether it was within the reasonable control of the movant, and [5]
whether the movant acted in good-faith.” Id. at 1498. While
Pioneer itself dealt with a deadline in a bankruptcy case, relying
on the consistent use of “excusable neglect” in the federal rules
this court has applied the teachings of Pioneer to Fed. R. App. P.
4 in criminal cases. See Clark, 51 F.3d at 42.
Reasons for the Delay
Applying Pioneer, the district court held that Nix and
Ransom themselves were responsible for the delay in the mailed
copies of the October 8, 1997 dismissal order reaching them. The
district court reasoned that Nix’s and Ransom’s failure to provide
the clerk of the court with written notice of their respective
address changes directly led to the delay in the arrival of their
copies of the October 8, 1997 order. This delay in the mails in
turn led to the late filing of Nix’s and Ransom’s notices of
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appeals. The district court therefore concluded that Nix and
Ransom were directly at fault for their failure to file timely
notices of appeal: no cause existed for this delay other than
Defendants-Appellants’ failure to keep the district court apprised
of their address.
The district court reasoned that Nix’s and Ransom’s
failure to provide written change of address notification was an
express violation of Uniform Local Rule of the United States
District Courts for the Northern and Southern Districts of
Mississippi Rule 17(c).2 Rule 17(c) notifies all pro se litigants
of their “continuing obligation to apprise the court of any address
change.” However, nothing in this rule requires that the
“apprisement” of a change of address be in writing.
Nix and Ransom aver that they gave oral notice, via
phone, of their change of address. Additionally, they sent certain
documents to the court marked with their proper return addresses.
Nix and Ransom also allege that the district court managed to mail
correspondence to their correct new addresses prior to sending the
order of dismissal to the former addresses. Thus, there are
substantial indications in the record that Nix and Ransom did
2
Since the events in question, Local Rule 17(c) has been
redesignated as Local Rule 11.1. We continue to utilize the former
designation in this opinion for consistency with the pleadings and
briefs.
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“apprise” the district court of their changes of address and that,
in fact, the clerk had received and processed this information.
The federal district courts have considerable latitude in
interpreting their own local rules of court. A local rule of a
federal district court is written by and for district judges to
deal with the special problems of their court, and the federal
appellate courts therefore give a district judge’s interpretation
of his court’s local rules, when not in conflict with the
interpretation of any other district judge, considerable weight.
See Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir.
1995); Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101, 1103 (7th Cir.
1990). However, the district court’s construction of Local Court
Rule 17 to require written notice is unreasonable in light of the
plain meaning of the word “apprise” and the lack of any reference
to a writing requirement.
The district court is free to impose a written change of
address notification requirement if it so chooses, but it must do
so clearly and comprehensibly. Reading a written notice
requirement into the current Rule 17(c) is unfair and unreasonable.
At a minimum, equity dictates the district court clerk should have
informed Nix and Ransom that he could not accept an oral change of
address and that written notice was required. Whether the clerk
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offered such an admonition is a factual matter for the district
court to determine on remand.
Because Local Rule of Court 17(c) will not support a
construction requiring written change of address notification, we
remand to the district court for a factual determination of whether
or not Nix and Ransom gave reasonable notice in any form of their
new of addresses.
Bad Faith
The district court found that Nix and Ransom did not miss
the deadline for filing notices of appeal in bad faith. The
district court, however, extended the bad faith prong of the
Pioneer analysis beyond just the notices of appeal to encompass the
underlying motion as well. Because it unequivocally found Nix’s
and Ransom’s underlying motions for a new trial to be in bad faith
and frivolous, the district court concluded that this bad faith had
infected their notices of appeal too. The district court
determined that the bad faith of the underlying motion poisons all
pleadings and filings made in furtherance of it.
We can not accept the district court’s interpretation of
the bad faith prong of Pioneer because to do so would require the
appellate courts to review the merits of the underlying appeal in
order to determine whether excusable neglect exists. Pioneer does
not suggest this: examining the entire record of the underlying
8
case simply to determine whether late filed notices of appeal
should be accepted would place an unwarranted burden on the
appellate courts. The “faith” prong of the Pioneer analysis
relates to the good faith-–or lack there of-–in connection with
efforts to file the appeal, not to the underlying proceedings
giving rise to the appeal. There is no question here that, viewed
in isolation, Nix’s and Ransom’s notices of appeal were filed in
good faith.
While the good faith prong of Pioneer requires us to
focus narrowly on the notices of appeal themselves, we caution the
Defendants-Appellants to be mindful of their obligations under
Federal Rule of Civil Procedure 11 and Federal Rules of Appellate
Procedure 30(b) and 38 before proceeding further with their on-
going campaign of pro se litigation.3 As noted by the district
court, Nix and Ransom are habitual litigants who have
systematically burdened the federal court system with literally
3
Federal Rule of Civil Procedure 11 exposes a litigant to sanctions
for, among other things, presenting a court with pleadings or motion for an
improper purpose “such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation.” Federal Rule of Appellate Procedure 30(b)
allows a party “who unreasonably and vexatiously increase[s] the costs of
litigation through the inclusion of unnecessary materials in the appendix” to be
sanctioned. Federal Rule of Appellate Procedure 38 allows this court to
determine that an appeal is frivolous and to “award just damages and single or
double costs to the appellee” in response.
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thousands of pages of frivolous material.4 The continuation of
such behavior will inevitably lead to sanctions.
Length of Delay
The very short interval between the passage of the
deadline and the filing of the late notices of appeal is a Pioneer
factor that weighs significantly in favor of Nix and Ransom. Nix’s
notice of appeal was dated one day after the deadline and was filed
two days after the deadline, while Ransom’s notice was signed six
days after the deadline and filed eleven days after the deadline.
Neither of the remaining Pioneer factors, the danger of
prejudice to the non-filing party and the potential impact on the
judicial proceedings, significantly favors either party.
Therefore, neither factor influences our equitable analysis.
The district court abused its discretion in failing to
take into account substantial evidence that Nix and Ransom had
reasonably informed the clerk of their changes of address. The
district court’s construction of its Local Court Rule 17(c) to
require written change of address notice was unreasonable in view
of the plain language of the rule. The length of the delay was
short and the late notices of appeal were not filed in bad faith.
4
By way of example, Nix’s and Ransom’s motion for a new trial, the
denial of which gave rise to the present proceedings, was 118 pages long with
almost 2000 pages of largely irrelevant supporting materials attached.
10
We therefore reverse and remand, with instructions to the district
court to determine whether Nix and Ransom in fact gave reasonable
-–though not necessarily written--notice of their changes of
address to the clerk. If Nix and Ransom did not provide reasonable
notice, then their notices of appeal were inexcusably late. If,
however, reasonable notice was given, then the delay in the filing
of the notices of appeal was not Nix’s or Ransom’s fault and their
appeals should be allowed to go forward. REVERSED and REMANDED.
11