United States v. 777 Greene Ave., No. 08-5428 (2d Cir. 2010)

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08-5428-cv United States v. 777 Greene Ave. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009 (Submitted: April 20, 2010 Decided: June 18, 2010) Docket No. 08-5428-cv U NITED S TATES OF A MERICA, Plaintiff-Appellee, -v.777 G REENE A VENUE, real property located at 777 Greene Avenue, Brooklyn, NY, 11221, 115 L YRIC C IRCLE, real property located at 115 Lyric Circle, also known as 115 Whispering Woods, Brodheadsville, PA 18322, and $7,106 IN U.S. C URRENCY seized from 777 Green Avenue, Brooklyn, NY, 11221, Defendants in rem, M ARY M AYO, Claimant-Appellant. * * 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 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Before: M INER, C ABRANES, and W ESLEY, Circuit Judges. Motion to withdraw as counsel filed by the attorney that we appointed to represent the claimant-appellant in this appeal pursuant to 18 U.S.C. § 983(b)(2)(A). We hold that such a motion will not be granted unless counsel satisfies the requirements that we have established under Anders v. California, 386 U.S. 738 (1976) and its progeny. Counsel s motion, which rests on the conclusory assertion that this appeal is not viable, does not pass muster under this standard. D ENIED. V INOO P. V ARGHESE, New York, NY, for ClaimantAppellant. T ANYA Y VETTE H ILL, Assistant United States Attorney, for Benton J. Campbell, United States Attorney, Eastern District of New York, Brooklyn, NY, for Appellee. W ESLEY, Circuit Judge: Vinoo P. Varghese, counsel for claimant-appellant Mary 28 Mayo, moves for permission to withdraw as counsel in this 29 appeal. 30 forfeiture of two pieces of real property, one of which is 31 her primary residence, and a sum of currency. 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. Mayo appeals from a civil judgment ordering the 2 Although The district court 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. 8 question of whether these distinct rights to counsel are 9 coextensive. We need not, and therefore do not, reach the 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. 18 without supporting authority, record citations, or analysis 19 that the issues in the appeal are not viable. 20 appointed Varghese to act as Mayo s zealous advocate, not an 21 amicus curiae. 22 falls short of the standards announced in Anders, the motion Instead, he now seeks to withdraw and asserts We Accordingly, because counsel s application 3 1 is denied. I. 2 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. 8 U.S.C. § 981(a)(1)(C). 1 9 the case on behalf of the defendants in rem as well as See 18 An attorney initially appeared in 10 claimant-appellant Mary Mayo, who intervened in the action 11 as a claimant with an interest in the properties. 12 December 7, 2007 settlement conference, however, Mayo 13 consented to allow the attorney to withdraw. 14 At a 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. 19 United States v. 67 Stuyvesant Ave., No. 05 Civ. 47 20 (E.D.N.Y. Dec. 25, 2007).) (Application for the Court to Request Counsel, 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). 4 Services Corporation consent[ed] to the appointment of 5 Vinoo P. Varghese, Esq. as counsel for Mayo in the district 6 court proceedings. 7 jury trial, which resulted in a September 19, 2008 verdict 8 in favor of the government. 9 Decree of Final Forfeiture on November 4, 2008. 10 On April 30, 2008, the Legal Varghese went on to represent Mayo at a The district court entered a 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. 14 after receiving several extensions of the relevant 15 submission deadlines, Varghese filed a motion on behalf of 16 Mayo requesting: 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 On April 13, 2009, (1) that he be formally appointed as her 20 revised scheduling order directing Varghese to file his 21 client s opening brief by November 30, 2009. 22 to meet that deadline. Counsel failed 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. 5 No extension of time to file will be granted. 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. 9 did not take a position regarding the application. The government The 10 motion did not include an affirmation from Mayo, legal 11 authority, record citations, or analysis of Mayo s appellate 12 arguments. 13 affirmation from Varghese that stated, in pertinent part: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 After reviewing all the transcripts and evidence in this case, I have determined [that] there are no viable issues on appeal [] which could lead to reversal. Thus, I do not wish to waste the Court s or the government s time in filing an appeal that I know has no chance of succeeding on appeal. (Varghese Aff. ¶¶ 4-5 (emphasis in original).) 29 also indicated that he had informed appellant of [his] Instead, it was accompanied only by a two-page I also do not seek compensation for the hours I have spent filing the necessary notices and motions on this appeal, as well as the time attending the CAMP conference, and for my research hours. 6 Varghese 1 findings regarding the non-viability of her appeal, but 2 that she still wished to pursue the appeal. 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. 7 (Id. ¶ 9.) II. 6 (Id. ¶ 8.) DISCUSSION 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. 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). 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. 19 forth below, the motion is denied. 20 In a criminal appeal, this bald assertion Insofar as this motion is Accordingly, for the reasons set 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. 8 was reacting to public outcry over the government s 9 too-zealous pursuit of civil and criminal forfeiture. In passing CAFRA, Congress 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)). 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. 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 21 22 23 24 25 One of the [e]ight [c]ore The pertinent provision If a person with standing to contest the forfeiture of property in a judicial civil forfeiture proceeding under a civil forfeiture statute is financially unable to obtain representation by counsel, and the property subject to forfeiture is real property that is 8 1 2 3 4 5 6 7 being used by the person as a primary residence, the court, at the request of the person, shall insure that the person is represented by an attorney for the Legal Services Corporation with respect to the claim. Id. 8 civil forfeiture action relating to his or her primary 9 residence, the court shall insure that the person is Thus, where an indigent claimant seeks counsel in a Id. (emphasis added). 2 10 represented. 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. 7 v. Hall, 499 F.3d 152, 156 (2d Cir. 2007). 8 Sixth Amendment exception arising out of Anders, we have 9 created a procedure whereby appointed counsel may seek to United States Based on the 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 2 Cir. 2004). Under Anders, there are several prerequisites that must 3 be satisfied before we will allow an appointed attorney to 4 withdraw. 5 (2d Cir. 2007). 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). 13 by themselves, to warrant withdrawal. 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. 19 E.g., United States v. Whitley, 503 F.3d 74, 76 Among other things, counsel must: (1) These steps are necessary, but not sufficient We will not grant an Id. at 104. 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. 3 right created by § 983(b)(2)(A) to contain a similar 4 limitation to that expressed in Anders. 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. 9 to hold in this opinion that the constitutional and Consequently, it is sensible to understand the That said, we have We decline 10 statutory rights to counsel are coextensive. 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). 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 22 23 24 But, because Therefore, we now hold that (1) Certify that he or she has come to the conclusion that the appeal is frivolous, and submit a brief explaining the bases for that conclusion with citations to the record and legal 12 1 2 3 4 5 6 7 8 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. 15 States v. Arrous, 320 F.3d 355, 358 (2d Cir. 2003)). 16 authority; and (2) Certify that he or she has informed the client: (a) that he or she intends to seek to withdraw from the case, (b) that withdrawal will probably result in the dismissal of the appeal, and (c) that the client may request assistance of other counsel or proceed pro se. Leyba, 379 F.3d at 54 (quoting United 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. 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). 7 that this appeal is frivolous, i.e., that it lacks any 8 basis in law or fact. 9 429, 438 n.10 (1988). 10 See N.Y. Rule of Prof. Nor has counsel represented to the Court McCoy v. Court of Appeals, 486 U.S. Frivolousness is the applicable standard in the Anders 11 context because a frivolous appeal may be decided without 12 an adversary presentation. 13 (1988). 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. 17 U.S. at 744 (emphasis added); see also McCoy, 486 U.S. at 18 436. Penson v. Ohio, 488 U.S. 75, 82 Indeed, the Supreme Court has directed that, if Anders, 386 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. 5 See McCoy, 486 U.S. at 437. 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. 9 mere speculation that counsel would not have made a We are sure, however, that 10 difference is no substitute for actual appellate advocacy. 11 Penson, 488 U.S. at 87. 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. Therefore, whatever differences may 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. 21 record citations or legal analysis to support his 22 assessment. Counsel did not submit any 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. 3 Burnett, 989 F.2d at 104 ( [A]n Anders brief performs a dual 4 function: 5 appeal and to insure that indigent criminal appellants 6 receive effective assistance of counsel. ). 7 prosecution of an appeal on behalf of a client requires 8 minimally the filing of a main appellate brief. 9 Flannery, 186 F.3d 143, 144 (2d Cir. 1999). Cf. to assist the appellate court in reviewing the The vigorous In re 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. 13 allow counsel to withdraw based on his entirely conclusory 14 assertion that the appeal is not viable. 15 III. Accordingly, we decline to 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 22 If counsel ultimately comes to the conclusion that the 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. 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. 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 If he seeks to Finally, 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

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