50 F.3d 571 (8th Cir. 1995), 93-3711, United States v. Duke

Docket Nº:93-3711.
Citation:50 F.3d 571
Party Name:UNITED STATES of America, Appellee, v. Ralph Chavous DUKE, also known as Plookie, also known as Plukey, Appellant.
Case Date:March 20, 1995
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 571

50 F.3d 571 (8th Cir. 1995)

UNITED STATES of America, Appellee,

v.

Ralph Chavous DUKE, also known as Plookie, also known as

Plukey, Appellant.

No. 93-3711.

United States Court of Appeals, Eighth Circuit

March 20, 1995

        Submitted Oct. 11, 1994.

        Rehearing and Suggestion for Rehearing En Banc Denied May 25, 1995.

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[Copyrighted Material Omitted]

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        Jack S. Nordby, Minneapolis, MN, argued, for appellant.

        Denise D. Reilly, Minneapolis, MN, argued (David L. Lillehaug and Jon M. Hopeman, on the brief), for appellee.

        Before McMILLIAN, Circuit Judge, McKAY, [*] Senior Circuit Judge, and BOWMAN, Circuit Judge.

        McMILLIAN, Circuit Judge.

        Ralph Chavous Duke appeals from a final order entered in the United States District Court 1 for the District of Minnesota denying his motion pursuant to 28 U.S.C. Sec. 2255 for federal post-conviction relief. United States v. Duke, No. 4-93-Civ. 10 (D.Minn. Aug. 16, 1993) (Order). For reversal, Duke argues the district court erred in holding that the prosecution's failure to respond accurately to a pre-trial request for the arrest record of an informant and its corresponding use of perjured testimony regarding the informant's arrest record did not require a new trial because there was no reasonable likelihood that the false testimony would have affected the judgment of the jury. For the reasons discussed below, we affirm the judgment of the district court.

       I. BACKGROUND

        The facts of this case are set out in detail in this court's opinion on Duke's direct appeal. See United States v. Duke, 940 F.2d 1113 (8th Cir.1991). We, therefore, provide only a summary of the facts. The indictment charged Duke with 32 counts of narcotics and firearms violations. After a one-month trial, Duke was convicted of participating in a continuing criminal enterprise to possess and distribute cocaine, aiding and abetting the attempt to possess with intent to distribute 20 kilograms of cocaine, other similar instances of aiding and abetting with regard to smaller amounts, three counts of using or carrying weapons in connection with drug offenses, and conspiracy to possess with intent

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to distribute cocaine. Duke was sentenced to three concurrent life sentences and lesser consecutive sentences. On direct appeal, this court remanded the case with instructions to vacate either the continuing criminal enterprise conviction or the conspiracy conviction on double jeopardy grounds, but affirmed in all other respects. See id. at 1121.

        The evidence presented at Duke's trial established that he headed a large-scale conspiracy to distribute drugs in the Twin Cities area. The arrest of Duke and a number of his coconspirators was largely the result of a reverse-sting operation conducted by the Drug Enforcement Administration (DEA). A key figure in this operation was Andrew Chambers, a DEA undercover informant, who successfully negotiated a drug deal with one of Duke's sons and one of his nephews. The undercover deal led to Duke's arrest.

       II. DISCUSSION

        A. Appellate Jurisdiction

        Duke filed a pro se motion for federal post-conviction relief pursuant to 28 U.S.C. Sec. 2255 in the United States District Court for the District of Minnesota on January 6, 1993. The district court entered final judgment denying his motion on August 16, 1993. Duke then filed a "Motion for Reconsideration" which the district court clerk's office stamped "received" on September 2, 1993. That motion was still pending when, on October 13, 1993, Duke filed a notice of appeal from the August 16, 1993, order. Because of the unusual procedural posture of this case, we find it necessary to consider our jurisdiction.

        The parties' failure to discuss the question of appellate jurisdiction in their briefs does not preclude our own examination of the question. "[E]very federal court has a special obligation to consider its own jurisdiction." Thomas v. Basham, 931 F.2d 521, 523 (8th Cir.1991). Moreover, "jurisdiction issues will be raised sua sponte by a federal court when there is an indication that jurisdiction is lacking, even if the parties concede the issue." Id. In the present case we are confronted with two related issues: (1) whether Duke's motion to reconsider tolled the time for filing a notice of appeal, and (2) if so, whether we should apply Rule 4(a)(4) of the Federal Rules of Appellate Procedure, as amended, retroactively to avoid dismissal of Duke's appeal.

        In the past, courts struggled to characterize self-styled "motions for reconsideration" as motions made pursuant to either Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. See, e.g., Sanders v. Clemco Indus., 862 F.2d 161, 168-69 (8th Cir.1988). Proper characterization was critical because under the version of Rule 4(a)(4) of the Federal Rules of Appellate Procedure in effect prior to December 1, 1993, a timely served Rule 59(e) motion would toll the time for the filing of a notice of appeal but a Rule 60(b) motion would not. See Fed.R.App.P. 4(a)(4) (1979 version).

        A 1993 amendment to Rule 4(a)(4) has eliminated this problem by providing that a Rule 60(b) motion served within 10 days of the entry of judgment also tolls the time for the filing of a notice of appeal. Fed.R.App.P. 4(a)(4)(F). Thus, for purposes of our jurisdictional analysis, we can determine whether Duke's motion for reconsideration tolled the time period for the filing of a notice of appeal without having to decide whether Duke's motion was made pursuant to Rule 59(e) or Rule 60(b). Because, as discussed below, we conclude that Rule 4(a)(4), as amended, should apply retroactively, we will proceed accordingly.

        If Duke's motion for reconsideration was not served within ten days of the entry of judgment, it would not trigger the tolling effect of Rule 4(a)(4). In such case, his notice of appeal, filed on October 13, 1993, would be effective because the sixty-day period for its filing would have expired on October 16, 1993. Duke's motion for reconsideration was received in the district court clerk's office on September 2, 1993. However, both a Rule 59(e) motion and a Rule 60(b) motion that has a tolling effect under Rule 4(a)(4)(F) need only be "served" within ten days of the entry of judgment. Therefore, September 2 is not necessarily the dispositive date. Furthermore, Rule 5(b) of

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the Federal Rules of Civil Procedure provides that service by mail is complete upon mailing.

        Additionally, we note that Duke filed his motion for reconsideration pro se and while incarcerated. In Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (Houston ), the Supreme Court created what might be called the "prison mailbox rule." The Supreme Court held as timely filed a pro se notice of appeal from the denial of habeas relief deposited by an inmate with prison authorities for mailing within the thirty-day period fixed by Rule 4(a) of the Federal Rules of Appellate Procedure for the filing of a notice of appeal. Id. at 270, 108 S.Ct. at 2382. The Supreme Court stated that "the Court of Appeals had jurisdiction over petitioner's appeal because the notice of appeal was filed at the time petitioner delivered it to the prison authorities for forwarding to the court clerk." Id. at 276, 108 S.Ct. at 2385. The rule in Houston is now restated in the Federal Rules of Appellate Procedure. See Fed.R.App.P. 4(c). Rule 4(c) provides: "If an inmate confined in an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely filed if it is deposited in the institution's internal mail system on or before the last day for filing." We believe that the rationale of Houston and the new Rule 4(c) applies with equal force to a motion which, under Rule 4(a)(4), tolls the time for the filing of a notice of appeal. Accord Smith v. Evans, 853 F.2d 155, 162 (3d Cir.1988). Thus, we hold that Duke's motion for reconsideration should be deemed timely served if it was delivered to prison authorities for mailing within the ten-day time period of Fed.R.Civ.P. 59(e) and Fed R.App.P. 4(a)(4)(F).

        Upon review of the district court record, we note that Duke filed three "Certificates of Service" with his motion to reconsider. The three certificates of service were signed by Duke with the typewritten...

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