United States v. Francisco Moreno-Torres ( 2015 )

Case: 13-40205 Document: 00512888798 Page: 1 Date Filed: 01/05/2015
REVISED, January 5, 2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-40205 September 30, 2014
Lyle W. Cayce
UNITES STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
FRANCISCO MORENO-TORRES,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before KING, GRAVES, and HIGGINSON, Circuit Judges.
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 (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
Case: 13-40205 Document: 00512888798 Page: 2 Date Filed: 01/05/2015
No. 13-40205
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.
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 respond pro se to the Anders brief, 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 received 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
2
Case: 13-40205 Document: 00512888798 Page: 3 Date Filed: 01/05/2015
No. 13-40205
afford them an opportunity to present their objections.” Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 314 (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:
[W]here 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.
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.
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.
1See also United States v. Barocio-Mendez, 547 F. App’x 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/certificate-of-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).
3
Case: 13-40205 Document: 00512888798 Page: 4 Date Filed: 01/05/2015
No. 13-40205
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. 2
2 We note that all active judges have concurred in the following new directive to Anders
counsel, which includes certification language to be contained in the Certificate of Service
filed with an Anders brief. This language also has been included in the Anders Guidelines
posted on the Fifth Circuit’s website:
If counsel in a direct criminal appeal files a brief characterizing the appeal as
without merit and moves to withdraw, Anders v. California, 386 U.S. 738(1967), or responds to a motion to dismiss by stating that any argument in
opposition would be frivolous, counsel must advise the Clerk’s Office of the
client’s address. In addition to fully complying with Anders, counsel must
provide a copy of his Anders brief to the defendant, and the brief should include
in the Certificate of Service a statement that this requirement has been
complied with, and a statement that counsel has reasonably attempted to
communicate, in a manner and a language understood by the defendant: (i)
that counsel has fully examined the record and reviewed the relevant law, and
there are no meritorious issues for appeal; (ii) that counsel has therefore moved
to withdraw; (iii) that if granted, the motion will result in dismissal of the
appeal; but (iv) the defendant has the right to file a response in English,
opposing counsel’s motion, within thirty days.
4