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Court: E-mailed notice of appeal is OK

An electronically filed notice of appeal confers jurisdiction in the Court of Appeals, even if the district court’s local rule requires the notice to be filed on paper, the Seventh Circuit held on Feb. 11.

Raymond S. Harvey pleaded guilty in federal court in Milwaukee to being a felon in possession of a firearm and was sentenced to 72 months imprisonment (his guideline range was 70 to 87 months). At sentencing, he argued unsuccessfully that he should receive a downward departure pursuant to the U.S. Sentencing Guidelines because he committed the crime under duress.

Harvey’s attorney only filed a timely electronic notice of appeal, in contravention of the Eastern District of Wisconsin’s rules, which require a notice of appeal to be filed “conventionally on paper.” No paper copy was filed until nearly two months after the deadline.

Nevertheless, the Seventh Circuit concluded that it had jurisdiction to consider the appeal, in an opinion by Judge Daniel A. Manion.

The Eastern District’s Electronic Case Filing Policies and Procedures Manual, Criminal Part III(C), require a paper copy of the notice of appeal to be timely filed. However, Seventh Circuit precedent allows any timely filed document to confer jurisdiction if it identifies the parties, the judgment being appealed, and the court to which the party appeals. Remer v. Burlington Area Sch. Dist., 205 F.3d 990, 995 (7th Cir.2000).

In addition, Federal Rule of Civil Procedure 5(e) provides that any document presented to the clerk in violation of a local rule of form can nonetheless be deemed filed for purposes of satisfying a filing deadline.

Accordingly, the court held that Harvey’s notice of appeal was timely.

The court reasoned, “Although his submission did not conform to local rules, the difference between a hard copy and an electronic submission is a mere error of form. We hold that Harvey timely filed his notice of appeal when he submitted it electronically to the clerk’s office.”

Turning to the merits, the court concluded that the district court reasonably rejected Harvey’s contention that he carried the gun under duress and thus deserved a below-guidelines sentence.

Harvey contended he possessed the gun under duress based on the following facts:

from November 2005 to early 2006, unknown actors twice discharged bullets into his house;

Vincent Edwards, a former partner in the drug trade, shot at him and firebombed his brother’s store;

Edwards requested that an associate threaten Harvey, his sister, and her daughter; and
on June 20, 2006, unknown gunmen fired shots at him while he was at his brother’s store.

Harvey was arrested six days after the final incident. In an attempt to flee the violence, Harvey moved from his home, but did not contact the police.

The court concluded Harvey failed to meet the three requirements for a departure from the federal sentencing guidelines based on 5K2.12. Those requirements, as set forth in U.S. v. Keller, 376 F.3d 713 (7th Cir. 2004) state: the felon must try to remove himself completely from the danger; if time permits, the felon must attempt to alert the police; and the felon must demonstrate a reasonable belief that a specific threat was about to be carried out.

Because Harvey only moved to the same area, rather than moving to a new area, and did not contact the police after the shooting incident on June 20, the court held that he was properly denied a downward departure, and affirmed his sentence.

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