United States v. Francisco Moreno-Torres

768 F.3d 439, 2014 U.S. App. LEXIS 18656, 2014 WL 4920237

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 30, 2014
• Docket: 13-40205
• Status: Published

Opinion

HIGGINSON, Circuit Judge:

Francisco Moreno-Torres pleaded guilty to possession of marijuana with intent to distribute and was sentenced to a prison term of 76 months. The attorney appointed to represent Moreno-Torres moved on appeal for leave to withdraw and filed a brief and a supplemental brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Before reaching the merits of counsel’s motion, we will consider whether Moreno-Torres received adequate notice of that motion and of his right to respond.

Both of defense counsel’s briefs included a certificate of service with the following statement: [A] hard copy will be served upon Francisco Moreno-Torres. However, the record reflects that Moreno-Torres does not speak or understand English. Counsel did not indicate whether he conveyed to Moreno-Torres, in a language Moreno-Torres understands, either the substance of the Anders brief or his right under Anders to respond to the brief. See Anders, 386 U.S. at 744, 87 S.Ct. 1396.

The court invited Deborah Pearce, former president of the Fifth Circuit Bar Association, to submit an amicus brief regarding what the court should do under these circumstances. Consistent with caselaw and court rules elsewhere, Pearce recommended, inter alia, that the court direct counsel to file an amended certificate of service indicating that he communicated to Moreno-Torres, in a language Moreno-Torres understands, both the substance of the Anders brief and his rights pursuant to Anders, including the right to file a pro se response to the Anders brief.

The record on appeal then reflects that counsel filed an affidavit stating that: (1) he had communicated to Moreno-Torres by telephone, through an interpreter, both the substance of his Anders brief and Moreno-Torres’s rights under Anders; (2) he had advised Moreno-Torres that Moreno-Torres had a right to retain other counsel or act pro se, and that the filing of the Anders brief would likely result in the dismissal of the appeal and the affirmance of Moreno-Torres’s conviction; and (3) he had complied with all obligations that the Second Circuit imposes on lawyers who file Anders briefs. See United States v. Leyba, 379 F.3d 53, 55-56 (2d Cir.2004). Counsel also submitted an affidavit by an interpreter, who swore that she communicated in Spanish to Moreno-Torres the advice that counsel discussed in his affidavit.

We commend these supplemental clarifications confirming that Moreno-Torres re ceived due process. The Supreme Court has held that [a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Applying Mullane, the Second Circuit has held that due process requires a lawyer who knows his client does not speak English to make reasonable efforts to convey the following information about his Anders brief to his client in a language that the client understands: (1) the substance of the brief; (2) the client’s right to oppose it or seek new counsel; and (3) the likelihood that the brief could result in dismissal of the appeal. Leyba, 379 F.3d at 55-56. Specifically, and applying Mullane, the Second Circuit held: Id. 1 Because counsel communicated to Moreno-Torres, in a language Moreno-Torres understands, the substance of the Anders brief and Moreno-Torres’s rights under Anders, this case no longer implicates due process concerns.

[Wjhere counsel moves to withdraw under Anders, due process requires that a defendant whom counsel knows does not speak English is entitled to more than a written statement in English of his rights. At a minimum, counsel should make reasonable efforts to contact the defendant in person or by telephone, with the aid of an interpreter if necessary, to explain to the defendant the substance of counsel’s Anders brief, the defendant’s right to oppose it or seek new counsel, and the likelihood that the brief could result in dismissal of the appeal. Of course, written notice of the foregoing, in a language understood by the client, would also suffice.

In light of the foregoing, we have reviewed counsel’s briefs and the relevant portions of the record reflected therein. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.

1 . See also United States v. Barocio-Mendez, 547 Fed.Appx. 910, 912 n. 2 (10th Cir.2013) (commending counsel for providing the defendant with a written translation of the substance of the Anders brief); U.S. Court of Appeals for the Fourth Circuit, Certificate of Service of Anders Brief on Defendant, http:// www.ca4.uscourts.gov/docs/pdfs/certificateof-service-of-anders-brief.pdf (requiring a lawyer whose client had an interpreter in the district court to check a box stating that the client received translated information about the substance of the Anders brief and his right to file a pro se brief).