Second Circuit Rejects Government’s Attempt to Avoid Briefing

In United States v. Davis, 2010 WL 890709 (2d Cir. March 15, 2010), the Second Circuit did not take kindly to the government’s attempt to avoid briefing an appeal by claiming that the appellant “failed to raise any non-frivolous issues  on appeal.” The case is addressed by my friend JaneAnne Murray in her New York Federal Criminal Practice blog, and she summarizes it well.

The Davis decision is important because the government’s argument could be read to imply that Davis’s appellate counsel violated Rule 38 of the Federal Rules of Appellate Procedure, which provides for sanctions if the court finds that an appeal is frivolous (as well as various ethical rules which prohibit attorneys from pursuing frivolous issues).

That implication could be the basis for the Second Circuit’s statement that “overreaching attempts to dismiss appeals as frivolous, like excessively zealous claims that adversary counsel should be sanctioned, will not be accorded a friendly reception by this court.”