Puerto Rico Association of Criminal Defense Lawyers

Federal Criminal Appellate Practice Writing Seminar

The US Court of Appeals for the First Circuit and the members of the court's CJA Education Committee will be holding a court-sponsored one-day writing seminar for both experienced brief writers and less seasoned criminal appellate practitioners on Friday, November 9, at the Condado Plaza Hotel in San Juan, PR, from 8:45 a.m. - 4:45 p.m.  Here is the program, and the registration form. The registration deadline is Friday, October 26.

Gall and Kimbrough - Briefs, Trancripts and Links to Coverage

Just to keep as a reference, here are the briefs and oral argument transcripts in Gall v. US, No. 06-7949 and Kimbrough v. US, No. 06-6330:

• Gall v. US - Petitioner's Brief
• Gall v. US - Government's Brief
• Gall v. US - Petitioner's Reply Brief
• Gall v. US - Oral Argument Transcript

• Kimbrough v. US - Petitioner's Brief
• Kimbrough v. US - Government's Brief
• Kimbrough v. US - Petitioner's Reply Brief
• Kimbrough v. US - Oral Argument Transcript

As we know, Gall was a substitute for Claiborne, which was dismissed after oral argument last term upon petitioner's death. You can listen to the oral argument in Claiborne here.

Lyle Denniston at SCOTUSblog has a good analysis of the oral arguments in Gall and Kimbrough in Analysis: More Trouble for the Guidelines. Doug Berman at Sentencing Law and Policy provides coverage and links at Gall and Kimbrough SCOTUS argument wrap-up.

Registration & Program for March 10th Advanced Federal Criminal Appellate Practice Seminar

Here are the Registration and Program for the First Circuit's Advanced Federal Criminal Appellate Practice Seminar (see our post here) to be held at the Condado Plaza Hotel & Casino on March 10, 2006. You must register no later than Friday, February 24, 2006.

The list of speakers looks good. To all attorneys in Puerto Rico I would recommend that if you do any federal criminal appellate work, you should register for this seminar.

Help for your Next Appeal

So you now have to face that appeal, and you would like some pointers on writing briefs as well as arguing your case. The folks at Appellate Law & Practice have come up with a number of excellent links, and I will add a few more to assist anyone writing a brief and arguing a case on appeal.

• Ten Pointers for an Appeal (First Circuit)
• Checklist for Briefs (First Circuit)
• Requirements for Compliant Briefs and Appendices (First Circuit)
• How to Write a Good Appellate Brief by Andrew L. Frey and Roy T. Englert, Jr. (Appellate.Net) - an excellent article which we were referred to by Appellate Law & Practice
• Painting with print: Incorporating concepts of typographic and layout design into the text of legal writing documents by Ruth Anne Robbins (posted in the website of the Seventh Circuit, and found thanks to Appellate Law & Practice)
• Arguing for Changes in the Law by James C. Schroeder and Robert M. Dow, Jr. (Litigation, Winter 1999, Volume 25 Number 2)
• Preparing and Delivering Oral Argument by Andrew L. Frey (Appellate.Net) - excellent
• Questions, Answers, and Prepared Remarks by Stephen M. Shapiro (Appellate.Net)

And it does not hurt to regularly read a few good briefs of cases before the Supreme Court, as well as reading the transcripts of some oral arguments.  And please do not tell me you have briefed and argued cases on appeal before and therefore you don't need to look at any of this stuff. If you think that way, you have chosen to stop learning and that, my friend, will be noticed somewhere, sometime.

PRACDL Lawyer's Assistance Strike Force in Action

PRACDL's Lawyer's Assistance Strike Force moved into action a few days ago in the case of US v. Adalberto Brito, Crim. No. 03-146 (DRD). Attorney Juan R. Acevedo-Cruz filed PRACDL's Motion to Intervene, and attorneys Linda Backiel and Rachel Brill filed a Motion to Vacate Order for Hearing and for Other Relief on behalf of counsel Esther Castro-Schmidt. Both motions have been added to the sidebar under "PRACDL Lawyer's Assistance Strike Force" and the background facts are detailed in the Motion to Vacate Order for Hearing and for Other Relief.

You will realize that the Government is simply acting improperly in seeking this investigation, and has -in my view- abused the Court's trust by misleading it and seeking an unfounded and vindictive investigation. The matters raised involve not only the Government's obviously vindictive purpose, but also -and likely more important- the defendant's right to counsel of his choice.

Note: If you have trouble opening the Motion to Vacate Court Order for Hearing and for Other Relief, just try reloading the page, and if that does not work, email PRACDL  and we will send you a copy. For some reason I was able to open it in Acrobat Reader when I got it, but had a hard time opening it from the link after uploading it.

Solicitor General submitted the United States' Reply Brief in Booker & Fanfan

Today the Solicitor General submitted the United States' reply brief in Booker & Fanfan. One of the questions that has been looming is whether the Solicitor General will reply merely to the arguments raised in the respondents' briefs or whether it will address the arguments in the briefs submitted in support of respondents by amici. Let me read it first!

• United States' Reply Merits Brief in Booker & Fanfan (via Sentencing Law & Policy)

More comments later.

Briefs filed Today by Respondents Booker, Fanfan and their Amici

Here are the links to the merits briefs filed today by respondents Booker and Fanfan and their amici. The links to the petitioner's (United States) and amici's (US Sentencing Commission, and Senators Hatch, Kennedy & Feinstein) briefs can be found in this post.

• Brief for Petitioner Booker *
• Brief for Petitioner Fanfan *
• Brief for Amicus NACDL in support of petitioners Booker & Fanfan *
• Brief for Amicus FAMM in support of petitioners Booker & Fanfan *
• Brief for Amicus NAFD in support of petitioners Booker & Fanfan *
• Brief for Amicus NYCDL in support of petitioners Booker & Fanfan *
• Brief for Amicus Washington Legal Foundation in support of petitioners Booker & Fanfan *
  

* All briefs are via Sentencing Law & Policy, with many thanks to Professor Berman.

A reply brief, if any, is to be filed by the Solicitor General on or before 3 p.m., Monday, September 27, 2004. Oral argument is set for Monday, October 4, 2004. And a decision will issue on . . .

Booker/Fanfan Briefs Filed Today by Petitioner United States, by amici USSC and Senators Hatch, Kennedy and Feinstein

Briefs filed today in Booker and Fanfan:

• United States' brief in Booker and Fanfan, (via Sentencing Law and Policy);
• U.S. Sentencing Commission's amicus brief in Booker and Fanfan; and
• amicus brief by Senators Hatch, Kennedy and Feinstein which Professor Berman has posted at Sentencing Law and Policy.

I can't comment yet on any of these, as I'm still digesting them. I am particularly interested in the severability argument from the government, although I will note that at least the amicus brief filed by the Senators keeps emphasising that the Sentencing Gudelines were intended to operate as an integrated whole. The Sentencing Commission focuses a lot on the differences between the Washington State statutory guidelines and the non-statutory federal guidelines hatched in that "independent" commission in the judiciary. They mention the changes to the Commission's membership brought about by the PROTECT Act in a footnote, without giving it any importance whatsoever.

I can see Justice Scalia writing about this not being an issue of good intentions -i.e., avoiding racial, gender or any other types of improper disparities- but of simple compliance with the Sixth Amendment.