1. Communicating With Your Appellate Client
Jim Skuthan
Rosemary Cakmis

2. Client Communication in the District Court
Need to review with client the following:
Elements of the Offense;
Constitutional rights
Statutory penalties
Advisory guideline range
Booker factors
Right to counsel in district court and appeal
Immigration and Collateral Consequences
Communicate all plea offers
Document, Document, Document!!

3. Laffler/Frye Checklist
In the materials, a Laffler/Frye Checklist.
Use the checklist or create your own.

4. Communication About the Appeal Begins in the District Court
Client has important decisions to make in the district court which impact his appellate rights.
Examples:
Dispositive Motion to Suppress – If Court rules against you, client does not have right to interlocutory appeal. Thus, can you do conditional plea, or do you need to have a non-jury or jury trial to preserve.

5. Other Examples
Dispositive Motion to Suppress where Court rules against Government and Government is allowed an interlocutory appeal.
Petitions for Writ of Mandamus (i.e. asking for review when district judge refuses to recuse himself; asking for review when district court refuses to issue a subpoena.
Appeal of pre-trial detention order.

6. Other Examples Plea Agreements
Client’s right to appeal his sentence is severely limited;
Really think is the sentence waiver worth any benefit?
Client needs to know that even if prosecutor recommends something favorable in the plea agreement, if court rules against defendant, government will support the court’s decision;
Document all of these conversations with the client.

7. Discussion with Client Prior Sentencing Hearing
Discussion of client’s statutory penalties, guideline range and Booker factors.
Discussion with client of objections to PSR
Discussion with client of sentence you will be requesting
Discussion with client her Allocution.

8. Sentencing Hearing
Make sure you make all of your objections to preserve your record.
Make sure the factual statements in the PSR are correct.
After sentence is imposed, object that sentence is substantively and procedurally unreasonable.

9. After Sentencing
You have fourteen days in which to file the NOA from the date the judgment is filed.
Carefully review the judgment AND the Statement of Reasons. Make sure they are consistent with the sentence, and the reasons for that sentence, as pronounced in court.

10. Within the fourteen days, visit the client and review with him the following:
That client is entitled to file an NOA
The time period for filing the appeal;
The fact that he is entitled to assistance of counsel on appeal;
What an appeal is and what an appeal is not (i.e. not a second bite with a jury, but reviewing lower court’s decisions, etc.);
Discuss implications of filing NOA while he is cooperating and trying to get a Rule 35;

11. Review with client the judgment and the SOR
If a plea agreement, discussing with client that his right to appeal sentence is severely limited.
HOWEVER, even if plea agreement, even if you think there are NO meritorious issues to appeal, you MUST file NOA if client instructs you to do so.
Failure to do so will result in a habeas, requiring an evidentiary hearing.l

12. Can you ever do a “merits” brief when there is a plea agreement with a waiver of appeal clause? Yes, if the Court did not adequately explain the waiver of appeal clause during the plea colloquy, the Court will deny the Government’s motion to dismiss the appeal and allow you to file a merits brief. What if client asks you to file NOA AFTER the 14th day? You still have an ethical obligation to file the NOA.

13. Document the Client’s Decision to Appeal or Not to Appeal
If client wants to appeal, document conversation in the file and follow up with a letter to the client explaining the appellate process.
Stress to the Client the Importance of staying out of trouble, enrolling in BOP programs and working jobs in BOP. Why?
Under Supreme Court decision in Pepper, if client gets re-sentenced, court can take into account his post sentencing rehabilitation.

14. Client’s Decision NOT to Appeal
If Client decides not to appeal, document your file thoroughly.
Follow up with letter to client indicating that:
You discussed with him his right to appeal, his right to appointed counsel on appeal, as well the time period for filing a notice of appeal;
That he decided not to appeal the judgment and/or sentence in his case.
That your representation has concluded and you will do no further work on his case and that you will close out his case.