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July 15, 2010

An amusing spat in the Third Circuit over a not-very-brief sentencing brief

This piece from The Legal Intelligencer, which is headlined "Convicted Politician's Attorneys Urge Federal Appeals Court to Bounce Big Brief," reports on a preliminary bout in the Third Circuit that is kicking off an appellate fight over the proper sentence for a high-profile state politician. Here are some details:

If appellate briefs are a war of words, it would seem that the lawyers for Vincent Fumo, the imprisoned former Pennsylvania state senator, are asking for a little arms control.

Prosecutors recently filed a 281-page opening brief in an appeal that challenges the 55-month sentence imposed on Fumo and the one-year term imposed on Fumo's longtime aide, Ruth Arnao, but defense lawyers are now urging the 3rd U.S. Circuit Court of Appeals to reject the brief, arguing that it is simply too long and sets the stage for the court and the lawyers to be swamped in paper.

"At 53,453 words, the government's proposed brief is nearly four times the 14,000 word limit for an opening brief and, standing alone, exceeds the total number of words contemplated for all four briefs combined in cases involving a cross-appeal (51,500)," the defense lawyers wrote.

"More to the point, if briefing were to continue at this pace with briefs of proportionate length filed by all parties, the court will be faced with nearly 1,500 pages of briefs totaling almost 300,000 words -- a sum nearly half again as long as Moby-Dick," the defense team wrote in a brief filed on Monday.

But in a quick response brief also filed on Monday, the prosecutors argued that the complexity of the appeal called for the government to file a hefty brief and that the defense move to have it rejected "must be viewed as entirely opportunistic, aiming to thwart the government's ability to thoroughly describe the numerous sentencing errors committed in these proceedings."

The government "recognizes that its brief is of an exceptional length," the prosecutors argue, "but after careful consideration and extensive editing efforts, respectfully asks permission to file it."...

The prosecutors filed a motion last week, along with the brief, that asked permission to exceed the court's limit on the number of words. Such motions are routinely granted, sometimes by the court clerk, and rarely elicit any response from the other side.

But Fumo's and Arnao's lawyers say they were compelled to respond because the government's brief is nearly four times the word limit outlined in the court's rules. "Briefing of this length places an undue burden on this court and opposing counsel and will only serve to slow the administration of justice in this case," the defense lawyers wrote.

I have to think that the extreme length of the government's brief, which I believe is only concerned with sentencing issues, is not going to be too kindly received by the judges on the Third Circuit.  And yet, I would be surprised if the judges refuse to let it be filed.  That said, the notion that the government could not get the brief in at less than 281 pages even after "extensive editing efforts" is almost as believable as the oft-stated government's claim that within-guideline sentences are always reasonable.

July 15, 2010 at 12:03 PM | Permalink


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A wise person once (or twice) told me: "Less is more." I think it's safe to say the government should have listened to that advice here.

Posted by: DEJ | Jul 15, 2010 9:20:03 PM

The Third Circuit clerk on Thursday referred this hot potato to a motions panel for decision.

Posted by: Peter G | Jul 16, 2010 4:40:04 PM

I was head of appeals for the USAO for the EDVA for 18 years. I not recall seeking permission to file a brief more than five pages over the limit.

The government's motion cannot be assessed without reading it and, probably, reading the submitted brief. I am quite sure that a brief of that size would not have been submitted without the approval of the US Attorney and, very likely, Main Justice. So there must be some pretty plausible reason behind it.

That said, one would have to think that a brief so vastly outsized reflects a lack of discipline. The government might get some extra length allowed. I'd be very surprised if it gets all it has asked for.

Posted by: Bill Otis | Jul 19, 2010 4:58:22 AM

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