08-5428-cv
United States v. 777 Greene Ave.
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5
6
7 August Term, 2009
8
9 (Submitted: April 20, 2010 Decided: June 18, 2010)
10
11 Docket No. 08-5428-cv
12
13
14 U NITED S TATES OF A MERICA,
15
16 Plaintiff-Appellee,
17
18 -v.-
19
20 777 G REENE A VENUE, real property located
21 at 777 Greene Avenue, Brooklyn, NY, 11221,
22 115 L YRIC C IRCLE, real property located at
23 115 Lyric Circle, also known as 115
24 Whispering Woods, Brodheadsville, PA
25 18322, and $7,106 IN U.S. C URRENCY seized from 777 Green
26 Avenue, Brooklyn, NY, 11221,
27
28 Defendants in rem,
29
30 M ARY M AYO,
31
32 Claimant-Appellant. *
33
34
35
36
*
The Clerk of the Court is respectfully directed to amend the official
caption of this appeal to conform to the caption of this opinion.
1 Before: M INER, C ABRANES, and W ESLEY, Circuit Judges.
2
3 Motion to withdraw as counsel filed by the attorney that
4 we appointed to represent the claimant-appellant in this
5 appeal pursuant to 18 U.S.C. § 983(b)(2)(A). We hold that
6 such a motion will not be granted unless counsel satisfies the
7 requirements that we have established under Anders v.
8 California, 386 U.S. 738 (1976) and its progeny. Counsel’s
9 motion, which rests on the conclusory assertion that this
10 appeal is not “viable,” does not pass muster under this
11 standard.
12
13 D ENIED.
14
15
16 V INOO P. V ARGHESE, New York, NY, for Claimant-
17 Appellant.
18
19 T ANYA Y VETTE H ILL, Assistant United States Attorney,
20 for Benton J. Campbell, United States
21 Attorney, Eastern District of New York,
22 Brooklyn, NY, for Appellee.
23
24
25
26 W ESLEY, Circuit Judge:
27 Vinoo P. Varghese, counsel for claimant-appellant Mary
28 Mayo, moves for permission to withdraw as counsel in this
29 appeal. Mayo appeals from a civil judgment ordering the
30 forfeiture of two pieces of real property, one of which is
31 her primary residence, and a sum of currency. Although
32 claimants in civil forfeiture proceedings lack a Sixth
33 Amendment right to counsel, Congress, through the Civil
34 Asset Forfeiture Reform Act of 2000 (“CAFRA”), has created a
35 statutory right to fill that void. The district court
2
1 appointed Varghese to represent Mayo pursuant to this
2 statute, 18 U.S.C. § 983(b)(2)(A), as did we for purposes of
3 this appeal.
4 Like the limited exception to the constitutional right
5 to counsel announced in Anders v. California, 386 U.S. 738
6 (1967), the statutory right to counsel under CAFRA is not
7 absolute. We need not, and therefore do not, reach the
8 question of whether these distinct rights to counsel are
9 coextensive. However, we hold that, with regard to motions
10 to withdraw filed by appellate counsel appointed pursuant to
11 18 U.S.C. § 983(b)(2)(A), the procedure established under
12 Anders and its progeny is best suited to protect the right
13 to counsel to which indigent litigants, such as claimant-
14 appellant, are entitled.
15 Counsel has not filed an appellate brief on behalf of
16 Mayo, despite receiving several extensions of the relevant
17 deadlines. Instead, he now seeks to withdraw and asserts —
18 without supporting authority, record citations, or analysis
19 — that the issues in the appeal are not “viable.” We
20 appointed Varghese to act as Mayo’s zealous advocate, not an
21 amicus curiae. Accordingly, because counsel’s application
22 falls short of the standards announced in Anders, the motion
3
1 is denied.
2 I. BACKGROUND
3 The government commenced this action in January 2005,
4 seeking to take possession of two properties and $7,106 in
5 United States currency, all of which it alleged was subject
6 to forfeiture because, inter alia, the property was
7 traceable to the exchange of controlled substances. See 18
8 U.S.C. § 981(a)(1)(C). 1 An attorney initially appeared in
9 the case on behalf of the defendants in rem as well as
10 claimant-appellant Mary Mayo, who intervened in the action
11 as a claimant with an interest in the properties. At a
12 December 7, 2007 settlement conference, however, Mayo
13 consented to allow the attorney to withdraw.
14 On December 25, 2007, Mayo filed a motion requesting
15 that the district court appoint her new counsel, along with
16 a declaration indicating that the real properties at issue
17 serve as her “homes” and that she could not afford an
18 attorney. (Application for the Court to Request Counsel,
19 United States v. 67 Stuyvesant Ave., No. 05 Civ. 47
20 (E.D.N.Y. Dec. 25, 2007).) The district court granted the
1
The government’s forfeiture allegations arise out of
a related criminal case involving narcotics offenses. (See
Superseding Indictment, United States v. Mayo, No. 05 Cr. 43
(S3) (E.D.N.Y. Oct. 18, 2005).)
4
1 motion, and instructed the Legal Services Corporation to
2 provide counsel from the Criminal Justice Act panel pursuant
3 to 18 U.S.C. § 983(b)(2)(A). On April 30, 2008, the Legal
4 Services Corporation “consent[ed]” to the appointment of
5 Vinoo P. Varghese, Esq. as counsel for Mayo in the district
6 court proceedings. Varghese went on to represent Mayo at a
7 jury trial, which resulted in a September 19, 2008 verdict
8 in favor of the government. The district court entered a
9 Decree of Final Forfeiture on November 4, 2008.
10 On November 7, 2008, Varghese filed a notice of appeal
11 on Mayo’s behalf. By letter dated January 15, 2009,
12 Varghese represented to this Court that he was appearing as
13 Mayo’s “[l]ead[] attorney of record.” On April 13, 2009,
14 after receiving several extensions of the relevant
15 submission deadlines, Varghese filed a motion on behalf of
16 Mayo requesting: (1) that he be formally appointed as her
17 counsel in this appeal pursuant to 18 U.S.C. § 983(b)(2)(A);
18 and (2) an additional extension of the briefing schedule.
19 We granted the motion in both respects and entered a
20 revised scheduling order directing Varghese to file his
21 client’s opening brief by November 30, 2009. Counsel failed
22 to meet that deadline. The Clerk of the Court therefore
5
1 entered an order on January 8, 2010, which stated that “the
2 appeal will be dismissed effective [January 22, 2010] if
3 [claimant-appellant’s] brief and appendix are not filed by
4 that date. No extension of time to file will be granted.”
5 Once again, counsel did not heed our scheduling order.
6 On the day of the final deadline, January 22, 2010, he filed
7 the instant motion requesting that the court permit him to
8 withdraw from his representation of Mayo. The government
9 did not take a position regarding the application. The
10 motion did not include an affirmation from Mayo, legal
11 authority, record citations, or analysis of Mayo’s appellate
12 arguments. Instead, it was accompanied only by a two-page
13 affirmation from Varghese that stated, in pertinent part:
14 After reviewing all the transcripts and
15 evidence in this case, I have determined [that]
16 there are no viable issues on appeal [] which
17 could lead to reversal. Thus, I do not wish to
18 waste the Court’s or the government’s time in
19 filing an appeal that I know has no chance of
20 succeeding on appeal.
21
22 I also do not seek compensation for the hours
23 I have spent filing the necessary notices and
24 motions on this appeal, as well as the time
25 attending the CAMP conference, and for my research
26 hours.
27
28 (Varghese Aff. ¶¶ 4-5 (emphasis in original).) Varghese
29 also indicated that he had “informed appellant of [his]
6
1 findings regarding the non-viability of her appeal,” but
2 that she still “wished to pursue the appeal.” (Id. ¶ 8.)
3 Based on those representations, counsel “ask[ed] the Court
4 to allow appellant to proceed pro se and to set a new
5 briefing schedule.” (Id. ¶ 9.)
6 II. DISCUSSION
7 Having invoked 18 U.S.C. § 983(b)(2)(A) as the basis
8 for his appointment in this appeal, counsel now seeks
9 permission to withdraw. The motion rests principally on
10 counsel’s representation that, in his view, the appeal is
11 not “viable.” In a criminal appeal, this bald assertion —
12 unaccompanied by a brief in any form — would be insufficient
13 to permit appointed counsel to withdraw under Anders v.
14 California, 386 U.S. 738 (1967). Insofar as this motion is
15 concerned, we have not identified material differences
16 between the federal constitutional concerns presented by an
17 Anders motion and the statutory directives from Congress
18 that are at issue here. Accordingly, for the reasons set
19 forth below, the motion is denied.
20 Although the Supreme Court has not categorically
21 rejected the application of the Sixth Amendment right to
22 counsel in civil forfeiture proceedings, several circuits,
7
1 including this one, have done so. United States v. 87
2 Blackheath Road, 201 F.3d 98, 99 (2d Cir. 2000) (citing
3 Austin v. United States, 509 U.S. 602, 608 n.4 (1993)).
4 Soon after our decision in 87 Blackheath Road, Congress
5 overhauled the civil forfeiture laws by enacting the Civil
6 Asset Forfeiture Reform Act of 2000 (“CAFRA”), Pub. L. No.
7 106-185, 114 Stat. 202, 205. “In passing CAFRA, Congress
8 was reacting to public outcry over the government’s
9 too-zealous pursuit of civil and criminal forfeiture.”
10 United States v. Khan, 497 F.3d 204, 208 (2d Cir. 2007); see
11 also H.R. Rep. No. 106-192, at 6 (1999) (citing United
12 States v. All Assets of Statewide Auto Parts, Inc., 971 F.2d
13 896, 905 (2nd Cir. 1992)). One of the “[e]ight [c]ore
14 [r]eforms” of CAFRA was the creation of a statutory right to
15 counsel in certain types of civil forfeiture proceedings.
16 H.R. Rep. No. 106-192, at 11, 14. The pertinent provision
17 for the purpose of this motion is 18 U.S.C. § 983(b)(2)(A),
18 which created a right to counsel for the indigent in civil
19 forfeiture actions involving their homes:
20 If a person with standing to contest the
21 forfeiture of property in a judicial civil
22 forfeiture proceeding under a civil forfeiture
23 statute is financially unable to obtain
24 representation by counsel, and the property
25 subject to forfeiture is real property that is
8
1 being used by the person as a primary residence,
2 the court, at the request of the person, shall
3 insure that the person is represented by an
4 attorney for the Legal Services Corporation with
5 respect to the claim.
6
7 Id. Thus, where an indigent claimant seeks counsel in a
8 civil forfeiture action relating to his or her “primary
9 residence,” the court “shall insure that the person is
10 represented.” Id. (emphasis added). 2 The House of
11 Representatives report that accompanied CAFRA suggests that
12 the provision was intended to create a right to counsel
13 similar to the Sixth Amendment right in criminal
14 proceedings. See H.R. Rep. No. 106-192, at 14. 3
2
The mandatory nature of the right to counsel in civil
forfeiture proceedings involving “primary residences” of the
indigent is further illustrated by reference to the
preceding subparagraph of the statute, 18 U.S.C. §
983(b)(1). Under that provision, where an indigent claimant
in a civil forfeiture action has been appointed counsel
pursuant to the Criminal Justice Act, see 18 U.S.C. § 3006A,
in a “related criminal case, the court may authorize counsel
to represent that person with respect to the claim.” Id. §
983(b)(1) (emphasis added). Section § 983(b)(2)(A), by
contrast, confers no such discretion. When the statutory
requirements are met, courts “shall insure that the
[claimant] is represented.” Id. § 983(b)(2)(A).
3
The Report states:
There is no Sixth Amendment right to appointed
counsel for indigents in civil forfeiture cases,
since imprisonment is not threatened. This is
undoubtedly one of the primary reasons why so many
civil seizures are not challenged. As the
cochairs of the National Association of Criminal
9
1 Of course, even in criminal proceedings, the Sixth
2 Amendment right to counsel is not absolute. Relevant here
3 is Anders v. California, 386 U.S. 738 (1967), which
4 “recognizes the limited exception to indigent defendants’
5 well-established right to the effective assistance of
6 counsel on direct appeals from convictions.” United States
7 v. Hall, 499 F.3d 152, 156 (2d Cir. 2007). Based on the
8 Sixth Amendment exception arising out of Anders, we have
9 created a procedure whereby appointed counsel may seek to
10 withdraw from a criminal appeal in instances where
11 professional ethics and judicial economy require an
12 attorney to inform the Court that the appeal is frivolous.
13 See, e.g., United States v. Leyba, 379 F.3d 53, 54-55 (2d
Defense Lawyers’ Forfeiture Abuse Task Force
stated before this Committee in 1996: “The reason
they are so rarely challenged has nothing to do
with the owner’s guilt, and everything to do with
the arduous path one must journey against a
presumption of guilt, often without the benefit of
counsel, and perhaps without any money left after
the seizure with which to fight the battle.” This
Committee believes that civil forfeiture
proceedings are so punitive in nature that
appointed counsel should be made available for
those who are indigent, or made indigent by a
seizure, in appropriate circumstances.
H.R. Rep. No. 106-192, at 14 (quoting the joint statement of
E.E. (Bo) Edwards III, David Smith, and Richard Troberman)
(footnotes omitted)).
10
1 Cir. 2004).
2 Under Anders, there are several prerequisites that must
3 be satisfied before we will allow an appointed attorney to
4 withdraw. E.g., United States v. Whitley, 503 F.3d 74, 76
5 (2d Cir. 2007). Among other things, counsel must: (1)
6 represent to the Court that he or she is “‘convinced, after
7 conscientious investigation, that the appeal is frivolous,’”
8 Leyba, 379 F.3d at 54 (quoting Anders, 386 U.S. at 741); and
9 (2) submit a brief that “identif[ies], by record references,
10 issues that have at least arguable merit supported by legal
11 authority,” United States v. Burnett, 989 F.2d 100, 103 (2d
12 Cir. 1993). These steps are necessary, but not sufficient
13 by themselves, to warrant withdrawal. We will not grant an
14 Anders motion unless we are satisfied that “counsel has
15 diligently searched the record for any arguably meritorious
16 issue in support of his client’s appeal,” and that counsel’s
17 characterization of the appeal as “frivolous is, in fact,
18 legally correct.” Id. at 104.
19 The concerns expressed in Anders and its progeny
20 resonate here as well, especially in light of the suggestion
21 from CAFRA’s legislative history that Congress wished to
22 create a right to counsel in civil forfeiture proceedings
11
1 analogous to the right to counsel established by the Sixth
2 Amendment. Consequently, it is sensible to understand the
3 right created by § 983(b)(2)(A) to contain a similar
4 limitation to that expressed in Anders. That said, we have
5 yet to either consider in detail the relationship between
6 these distinct rights to counsel, or establish a procedure
7 whereby appellate counsel appointed pursuant to CAFRA may
8 seek to withdraw from a civil forfeiture action. We decline
9 to hold in this opinion that the constitutional and
10 statutory rights to counsel are coextensive. But, because
11 the considerations of judicial economy and professional
12 responsibility apply with equal force to the respective
13 rights to counsel established under CAFRA and the Sixth
14 Amendment, the procedure established under the Anders line
15 of cases is best suited to protect the right to counsel to
16 which indigent litigants, such as claimant-appellant, are
17 entitled under § 983(b)(2)(A). Therefore, we now hold that
18 court-appointed appellate counsel seeking this Court’s
19 permission to withdraw from an appointment made pursuant to
20 § 983(b)(2)(A) must:
21 (1) Certify that he or she has come to the
22 conclusion that the appeal is frivolous, and
23 submit a brief explaining the bases for that
24 conclusion with citations to the record and legal
12
1 authority; and
2
3 (2) Certify that he or she has informed the
4 client: (a) that he or she intends to seek to
5 withdraw from the case, (b) that withdrawal will
6 probably result in the dismissal of the appeal,
7 and (c) that the client may request assistance of
8 other counsel or proceed pro se.
9
10 In addition, well in advance of filing the motion with this
11 Court, “[c]ounsel must furnish the client with a copy of the
12 motion and accompanying brief, as well as a ‘letter
13 informing the client that he or she has the right to file a
14 pro se brief.’” Leyba, 379 F.3d at 54 (quoting United
15 States v. Arrous, 320 F.3d 355, 358 (2d Cir. 2003)).
16 Under this standard — which, in fairness, we have not
17 previously articulated — counsel’s motion falls short. In
18 lieu of filing an appellate brief, apparently, counsel seeks
19 to withdraw based on his representation that there are no
20 “viable” issues in the appeal. 4 Counsel has not suggested
4
The representations in counsel’s motion are roughly
equivalent to those made by the defendant’s appointed
counsel in Anders. There, the Supreme Court held that
counsel had not satisfied his responsibility to his client
by submitting a letter to a state appellate court that
stated:
I will not file a brief on appeal as I am of the
opinion that there is no merit to the appeal. I
have visited and communicated with Mr. Anders and
have explained may views and opinions to him . . .
. [H]e wishes to file a brief in this matter on
his own behalf.
13
1 that withdrawal is mandatory under the ethical rules that
2 govern his professional conduct. See N.Y. Rule of Prof.
3 Conduct 1.16(b) (governing mandatory withdrawal); see also
4 Whiting v. Lacara, 187 F.3d 317, 321 (2d Cir. 1999)
5 (discussing withdrawal under the Model Code of Professional
6 Responsibility). Nor has counsel represented to the Court
7 that this appeal is frivolous, i.e., that it “lacks any
8 basis in law or fact.” McCoy v. Court of Appeals, 486 U.S.
9 429, 438 n.10 (1988).
10 Frivolousness is the applicable standard in the Anders
11 context because a frivolous appeal “may be decided without
12 an adversary presentation.” Penson v. Ohio, 488 U.S. 75, 82
13 (1988). Indeed, the Supreme Court has directed that, “if
14 counsel finds his [client’s] case to be wholly frivolous,
15 after a conscientious examination of it, he should so advise
16 the court and request permission to withdraw.” Anders, 386
17 U.S. at 744 (emphasis added); see also McCoy, 486 U.S. at
18 436. Thus, under Anders, where counsel certifies that a
386 U.S. at 743. Similarly, in Penson v. Ohio, the Court
rejected counsel’s use of a letter bearing a “marked
resemblance” to the correspondence in Anders, which stated
that “counsel, after carefully reviewing the record, ‘found
no errors requiring reversal, modification and/or vacation
of appellant’s’ conviction or sentence.” 488 U.S. 75, 81
n.3 (1988) (quoting the letter).
14
1 direct appeal in a criminal case is frivolous and the
2 appellate court agrees, the defendant has, in essence,
3 received the assistance of counsel to which he is entitled
4 under the Sixth Amendment. See McCoy, 486 U.S. at 437.
5 But counsel in this case has not stated that the appeal
6 is frivolous. It is unclear precisely what he means by
7 “viable,” and whether this appeal is amenable to resolution
8 in a non-adversarial fashion. We are sure, however, that
9 “mere speculation that counsel would not have made a
10 difference is no substitute for actual appellate advocacy.”
11 Penson, 488 U.S. at 87. Therefore, whatever differences may
12 exist between the Sixth Amendment right to counsel in
13 criminal proceedings and the statutory right to counsel
14 created by § 983(b)(2)(A), we are not satisfied that
15 counsel’s motion, even if the representations it contains
16 are accurate, affords Mayo the benefit of the statutory
17 right to counsel to which she is entitled.
18 The second, related defect in this motion is that we
19 have no way of knowing how counsel came to the conclusion
20 that the appeal is not “viable.” Counsel did not submit any
21 record citations or legal analysis to support his
22 assessment. By failing to file an appellate brief in any
15
1 form, counsel has not adequately served either the client
2 that we appointed him to represent or this Court. Cf.
3 Burnett, 989 F.2d at 104 (“[A]n Anders brief performs a dual
4 function: to assist the appellate court in reviewing the
5 appeal and to insure that indigent criminal appellants
6 receive effective assistance of counsel.”). “The vigorous
7 prosecution of an appeal” on behalf of a client “requires
8 minimally the filing of a main appellate brief.” In re
9 Flannery, 186 F.3d 143, 144 (2d Cir. 1999). Moreover,
10 “simply putting pen to paper can often shed new light on
11 what may at first appear to be an open-and-shut issue.”
12 Penson, 488 U.S. at 81 n.4. Accordingly, we decline to
13 allow counsel to withdraw based on his entirely conclusory
14 assertion that the appeal is not “viable.”
15 III. CONCLUSION
16 For the foregoing reasons, the motion is denied.
17 Counsel shall file appellant’s opening brief within sixty
18 days of this opinion, and it should contain the best non-
19 frivolous arguments that can be made on behalf of the client
20 that we appointed him to represent.
21 If counsel ultimately comes to the conclusion that the
22 appeal is, in fact, frivolous, then he is directed to file a
16
1 brief explaining the bases for that conclusion with
2 citations to the record and legal authority. If he seeks to
3 withdraw, counsel is also directed to certify in his brief
4 to this Court that he has informed his client that: (1) he
5 intends to file a motion to withdraw along with the
6 accompanying brief; (2) withdrawal will probably result in
7 the dismissal of the appeal; and (3) she may request
8 assistance of other counsel or proceed pro se. Finally,
9 well in advance of any such motion to withdraw, counsel is
10 also directed to provide Mayo with a copy of the motion and
11 the brief, as well as a letter informing her that she has a
12 right to file a pro se brief.
13 The Clerk of the Court shall set the remainder of the
14 briefing schedule with input from counsel, but no further
15 extensions will be granted absent truly compelling
16 circumstances.
17