Appeal can be dismissed at any time

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The government can move to dismiss a criminal appeal before the filing of any briefs, but the defendant is not bound by the time limits of Rule 27, the Seventh Circuit held on Sept. 9.

D’Marcus Mason was sentenced, in Indiana federal court, to 135 months in prison for a drug offense, after pleading guilty pursuant to a plea agreement in which he waived his appeal rights. Nevertheless, he filed a timely notice of appeal.

Before Mason had filed his opening brief, the government moved to dismiss the appeal, arguing lack of jurisdiction because of the waiver. Mason’s counsel filed a response to the motion, agreeing that the appeal should be dismissed because of the waiver. Counsel also asked for leave to withdraw, pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no nonfrivolous grounds for an appeal.

The Seventh Circuit held that the government is within its rights in filing the early motion to dismiss. However, the court also concluded that the defendant’s attorney need not file a responsive brief within 8 days, and that the defendant has the right to respond to the motion pro se, just as he would in a normal Anders situation.

Accordingly, the court ordered that a copy of defense counsel’s response be sent to Mason, and that he be given the usual opportunity to respond.

The court noted that, while a waiver of appeal is normally valid and binding, there are exceptions, such as when the agreement reserves some issue, or if the agreement is unenforceable, because the government committed a material breach or the plea was involuntary on the part of the defendant.

The court acknowledged that, ordinarily, the government urges waiver of appeal after the defendant has filed either a brief on the merits or an Anders brief. Here, however, the government moved to dismiss only a month after the appeal was docketed, and three months before Mason’s opening brief was due.

Nevertheless, the court concluded the motion was proper, because the government has a right to file a motion to dismiss, even if briefing has not yet begun. The court noted that Rule 27 of the Federal Rules of Appellate Procedure, which governs motions in appeal proceedings, does not specify when a motion to dismiss can be filed.

The court further noted that, in civil cases, appellees are urged to move to dismiss frivolous appeals before briefing, in order to save the parties’ money and the court’s time, citing Brooks v. Allison Division of General Motors Corp., 874 F.2d 489 (7th Cir. 1989).

Accordingly, the court held that the government’s motion to dismiss was proper. However, the court found that, by filing such a motion, the government imposes unreasonable time constraints on the defendant’s attorney, because FRAP Rule 27(a)(3)(A) allows only eight business days to respond to a motion. Furthermore, a defendant has the right to respond to his counsel’s Anders brief and motion to withdraw as counsel.

Therefore, the court stated that defense attorneys should be given more time to file responses.

Here, however, despite the short response period, the court found that Mason’s attorney was able to prepare “a response that is the full equivalent of an Anders brief.”

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The court found, “He states in the response that he has reviewed the entire record and given the case thorough consideration, and his statement is corroborated by the detailed discussion in the response of the facts of the case, of the language of the appeal waiver, and of the Rule 11 colloquy. The response discusses several potential challenges to the waiver but concludes that all would be frivolous. It would be the height of formalism to refuse to treat the response to the motion to dismiss as an Anders brief merely because it is not labeled a brief and was not filed when the opening brief in the appeal was due.”

Accordingly, the court accepted the response as an Anders brief, and directed the court clerk to send a copy of the response to Mason, giving him the usual opportunity to respond.

In conclusion, the court added, “It should go without saying that when the government moves to dismiss a criminal appeal, the appellant’s lawyer will be entitled to any extensions of time for responding that he may need in order to be able to satisfy the obligations imposed by Anders.”

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David Ziemer can be reached by email.