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Criminal Procedure – appeals — motions to dismiss

By: WISCONSIN LAW JOURNAL STAFF//June 9, 2014//

Criminal Procedure – appeals — motions to dismiss

By: WISCONSIN LAW JOURNAL STAFF//June 9, 2014//

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U.S. Court of Appeals for the 7th Circuit

Criminal

Criminal Procedure – appeals — motions to dismiss

The government’s filing of a separate motion, in advance of full briefing, to dismiss a criminal appeal as frivolous should be, though not forbidden, discouraged.

“The appellant’s counsel suggests a sensible compromise: that before filing a motion to dismiss on the basis of waiver of appeal the government file a notice of intent to file such a motion. The notice would constitute an early warning to the appellant’s counsel—who in many cases will not have been counsel in the district court—that there is an appeal waiver and that the government intends to enforce it (it can waive the waiver if it wants; see Nunez v. United States, 546 F.3d 450, 452 (7th Cir. 2008)). Counsel will thus be prompted to discuss with the appellant whether the appeal should be dismissed voluntarily. See Fed. R. App. P. 42(b); 7th Cir. R. 51(f). If the appellant wants to fight it, counsel can either file an Anders brief if he thinks the fight futile or try to show that the appeal waiver does not apply. The government’s notice of intent to enforce the appeal waiver will have the same accelerating effect as a motion to dismiss, while requiring less work for both sides and preserving the briefing schedule.”

“I therefore order decision on the government’s motion to dismiss the appeal deferred to the merits panel.”

So Ordered.

14-1479 U.S. v. Manning

Appeal from the United States District Court for the Southern District of Illinois, Herndon, J., Posner, J.

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