Monday, March 23, 2015

If the government doesn't like a ruling by the district court, they need to appeal

After his supervised release was revoked, Mr. Burch filed a notice of appeal. He was a few weeks past the 14-day deadline for filing, so he also filed request for an extension of time.* The district court granted the request. The government did not appeal this ruling, or file a cross appeal. Instead, it challenged the order via a motion to dismiss the appeal as untimely, arguing the district court abused its discretion in granting the extension.

There is actually a circuit split on this issue. The Third Circuit rejects the motion to dismiss approach and holds a party must "appeal from the order granting the extension of time to appeal." The Tenth Circuit had a rather convoluted theory that a cross-appeal is only for instances where an appellee wants "more than it obtained by the lower-court judgment" and since the appellee was not seeking alteration of the judgment, they need not file a cross-appeal.

In United States v. Burch, 14-6232, the Sixth Circuit agreed with the Third Circuit and provided some clearer guidance: "litigants dissatisfied with a district court's judgment or order normally must file an appeal challenging the decision." "[A] party dissatisfied with a district court's order is well-served to file [an appeal], whether labeled an appeal or cross-appeal, within the relevant timelines." There is nothing about a time-extension order that suggests any different rule should apply to them.

The Sixth went on to describe instances where a motion to dismiss would be appropriate: where the court lacked jurisdiction; to enforce a valid appeal waiver in a plea agreement; or when a criminal defendant filed an untimely appeal without district court authorization.**

The government's motion to dismiss the appeal was denied. It appears Mr. Burch has until his release on April 28, 2015, to appeal his revocation and/or sentence, as he received jail time with no supervision to follow.

* Practice tip #1: if you must file your notice of appeal late, for whatever reason, file the notice AND a request for an extension of time. If you only file the notice, the Sixth Circuit will docket the case and then tell you in a rather public way that you need to move the district court to allow you to file out of time. Since you will have to do it anyway, go ahead and do it in the first place.

** Practice tip #2: When a defendant files a pro se notice of appeal, the Sixth Circuit will docket the case and notify trial counsel. DO NOT IGNORE THEIR MESSAGE. Even court-appointed counsel are considered appeal counsel unless and until they are relieved. Respond to the message. Put your appearance in. If the defendant has filed out of time, the Sixth will issue a Rule to Show Cause, basically asking trial counsel to figure out what's going on, get the district court's permission to file late, and get in touch with the client. When in doubt, do not do nothing.

Friday, March 20, 2015

Arson, Duplicity, and the Mail

In United States v. Singer, Mr. Singer was convicted of involvement in a fraudulent scheme to buy properties cheaply, obtain insurance coverage, and burn down those properties for insurance proceeds. The government charged Mr. Singer with mail fraud relating to the scheme, as well as individual use of fire to commit mail fraud counts for each property. In response to Mr. Singer's challenge, the Sixth Circuit held that a mail fraud count encompassing multiple acts of a conspiracy is not duplicitous. Further, even if it were duplicitous, a defendant is not prejudiced by avoiding the imposition of additional counts.

The Singer Court also addressed the statute of limitations for using fire to commit mail fraud. Mr. Singer argued that the statute of limitations began to run from the time of the fire. But the Sixth Circuit interpreted 18 U.S.C. 844(h) to be committed only once "a fire or explosive is used to commit another felony - in this case, mail fraud." As a result, the clock began to run at the time of the mailings, not the fires themselves.

Additionally, Mr. Singer argued that because his convictions under 884(h) arose out of the same indictment, they could not be "stacked" consecutively. In fact, the Singer court acknowledged "the government's decision to charge each fire as a separate 844(h) offense is arguably in conflict with its theory that the fires all were part of the same underlying scheme." Nonetheless, the Sixth Circuit found no plain error. The decision also briefly concluded Mr. Singer's severance argument was waived.