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Appeal Case Analysis

It should be expected that, in light of this decision, it will become standard operating procedure for prosecutors to file motions to dismiss before the appellant’s brief deadline, whenever a plea agreement contains a waiver of the right to appeal.

Doing so has the potential to save a great deal of resources on the government’s part. By filing a motion to dismiss, the government can force the issue of waiver to the forefront, and likely can avoid devoting any time to substantive arguments.

In contrast, if the government waits, and the defendant files a brief in support of the appeal, the government is forced to address whatever issues are raised, in addition to arguing waiver.

One issue which is not perfectly clear from the decision is the scope of the Anders brief that a defendant’s attorney should file. The court cites a Second Circuit case with approval, U.S. v. Gomez-Perez, 215 F.3d 315 (2nd Cir. 2000), which raised the same issue as the case at bar.

There, the court specifically stated that, if defense counsel is satisfied that there are no nonfrivolous issues for appeal, he should file an Anders brief, but confined to waiver issues. Gomez-Perez, 215 F.3d at 319.

The Seventh Circuit, however, did not impose that limitation. Presum-ably, therefore, counsel is not limited to waiver issues, but should address any arguable substantive issues, lest the court conclude the waiver is invalid.

Another difference between the approach adopted by the Seventh Circuit and the Second Circuit concerns time limits. The Second Circuit held that, when the government moves to dismiss based on waiver, it will reserve judgment, and “counsel shall respond in accordance with the normal briefing schedule.” Gomez-Perez, 215 F.3d at 320.

In contrast, the Seventh Circuit de-cision requires counsel to actively request an extension. The court makes clear that extensions will be granted as a matter of course.

Nevertheless, any attorney who fails to either request an extension or file an Anders brief within the 8 days allotted by Rule 27(a)(3)(A) should expect to receive the dreaded order to show cause.

An interesting question raised by the case is how it will affect the holding in U.S v. Hare, 269 F.3d 859 (7th Cir. 2001).

In Hare, the court held that a defendant who enters a plea agreement that includes a waiver of appellate rights, and then appeals anyway, breaches the plea agreement.

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Appeal can be dismissed at any time

The government is then free to declare the agreement null and void, and reinstate any original dismissed charges.

The court concluded that this is necessary because merely dismissing the appeal “is an essential but incomplete response, because the prosecutorial resources are down the drain.” Hare, 269 F.3d at 862.

Such a rationale presumes, however, that the government must actually “spend time researching the record, writing a brief, and attending oral argument,” time that “could be devoted to other resources.” Hare, at 861.

If the defendant merely files a notice of appeal, however, and the government files a successful, cursory motion to dismiss before briefing begins, the government may not need to spend time on such tasks. In such a case, the breach is arguably not material, and permitting the government to declare the entire plea agreement null and void would be an excessive remedy.

– David Ziemer

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David Ziemer can be reached by email.

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