In re Aranda
| Decision Date | 15 May 2015 |
| Docket Number | Docket No. 14–90027. |
| Parties | In re Andres M. ARANDA, Attorney. |
| Court | U.S. Court of Appeals — Second Circuit |
Andres M. Aranda, pro se, Bronx, N.Y., for Andres M. Aranda.
Before: CABRANES, SACK, and WESLEY, Circuit Judges.
Andres M. Aranda, who was admitted to the New York State bar in 1979 and to this Court's bar in 2012, was ordered to show cause why disciplinary or other corrective measures should not be imposed on him, based primarily on his numerous defaults in several appeals in this Court. For the reasons stated below, we publicly reprimand Aranda and suspend him from practice before this Court for eighteen months, both for his misconduct in those appeals and for his failure to properly respond to our order to show cause.
Aranda's defaults are described in detail in the order to show cause, which will be reissued this date as a public decision. That order required Aranda to provide, inter alia, an explanation for all of the described conduct. We find his response inadequate for a number of reasons.
Aranda represented Anthony Manigault in his direct appeal from a criminal judgment sentencing him to, inter alia, 120 months' imprisonment. Aranda defaulted on a number of occasions in the appeal: he failed to pay the filing fee or file numerous required documents, including his brief, by the deadlines mandated by this Court's rules and orders. The appeal was eventually dismissed based on Aranda's defaults. Luckily for Aranda's client, however, the appeal was later reinstated and, upon the Government's motion, the case was remanded to the district court and the client was resentenced to 66 months' imprisonment.
In his response to our order to show cause, Aranda acknowledged only that he had failed to timely pay the filing fee and failed to timely file a court form. He attributed those defaults to his “inexperience and unfamiliarity with the filing procedures of this Court.” Response ¶ 9. He also stated that his conduct did not prejudice his client.Id. ¶ 10.
Aranda's explanation for his conduct in Thompson is deficient for several reasons. First, he did not mention the numerous other defaults noted in our order to show cause, which extended far beyond the filing fee and a single form. Second, Aranda's proffered reason for the defaults, his unfamiliarity with this Court's “filing procedures,” does not explain why he failed to comply with Court orders that identified his defaults and instructed him to cure the defaults by specified deadlines. Nor does his proffered reason explain why multiple telephone calls from the Court were required before he cured some of his defaults.
Third, Aranda's discussion of the prejudice faced by his client in Thompson focused solely on the end result—the resentencing to a shorter term of imprisonment—without mentioning Aranda's own responsibility for the dismissal of the appeal, or the risk to his client that his defaults could have foreclosed the sentence reduction. See In re DeMell, 589 F.3d 569, 573 (2d Cir.2009) ().
We also note that, even if Aranda's defaults in Thompson (and in the cases discussed below) caused little or no prejudice to his clients, he nonetheless “caused prejudice of a different type: he wasted the time of opposing counsel, Court employees, and judges; delayed the processing of other litigants' cases; and caused unnecessary expense to the public.” In re Gordon, 780 F.3d 156, 159 (2d Cir.2015).
Aranda represented Gaspar Vallejo in his direct appeal from a criminal judgment sentencing him to, inter alia, forty-six months' imprisonment. As noted in our order to show cause, Aranda's default nearly caused the dismissal of the appeal, which was avoided only through several telephone calls from this Court regarding his default. Aranda's response to the order to show cause did not mention the default, the threatened dismissal, or the telephone calls, but instead discussed only his reasons for later moving to withdraw from the case. See Response ¶ 11.
Aranda's response also did not address the risk of serious prejudice to his client posed by his default—specifically, the substantial risk that the appeal could have been dismissed. See Gordon, 780 F.3d at 159 ().
Aranda represented Leonardo Gabriel in two appeals from a criminal judgment sentencing Gabriel to, inter alia, 240 months' imprisonment. Both appeals were dismissed based on Aranda's defaults. Although both were later reinstated, Aranda defaulted on a number of other occasions and incorrectly informed the Court that district court transcripts were not yet available. In his response to our order to show cause, Aranda stated that he had never intended to neglect Gabriel's appeals and that his secretary had been told that the district court transcripts were not ready each time she inquired. See Response ¶¶ 20–21. He did not otherwise discuss the many defaults noted in our order or the dismissal of the two appeals.
Aranda represented Hector Delgado in an appeal from a criminal judgment sentencing Delgado to, inter alia, 128 months' imprisonment. We ordered Aranda to explain his defaults in that appeal, although the defaults were not individually identified in our order to show cause. In his response, Aranda stated simply that “there is nothing in the record to show that [his] work in that matter was deficient or in violation of any courts [sic ] rules and procedures.” Response ¶ 19.
To the contrary, the public docket for Guerrero clearly reflects that Aranda defaulted on several occasions. Specifically, the docket includes three separate orders of this Court stating that Aranda had failed to file two required forms and his brief; two of those orders threatened dismissal of the appeal if the defaults were not cured. See Guerrero, No. 11–4489, docs. 3, 12, 13. Other orders noted that Aranda had filed defective documents, see id., docs. 24, 31, and that he had failed to cure one of the defective documents despite having been given notice, see id., doc. 28. Each of the Court's orders identified the rules that had been violated. Thus, contrary to Aranda's conclusory assertion, the record does reflect that his performance in Guerrero was deficient and that he violated a number of the Court's rules.
Aranda represented Marco Batista in his appeal from a criminal judgment sentencing him to, inter alia, 244 months' imprisonment. The docket for that appeal reflects the following: Aranda defaulted on several occasions, including by failing to file a brief; the Court informed him that the appeal would be dismissed if the brief was not timely filed; he filed a defective motion to be relieved; he failed to cure that defective motion despite repeated requests from the Court; and he was sua sponte relieved when it became apparent that he would not comply with the Court's instructions. Batista, proceeding pro se, later informed the Court that he was having difficulty preparing his brief due to, inter alia, Aranda's failure to provide requested documents. See Batista, No. 12–1621, doc. 51 at ¶¶ 3–4; doc. 63 at ¶ 5. The appeal ultimately was dismissed, based on Batista's failure to file his brief. Id., docs. 57, 59, 69.
In his response to our order to show cause, Aranda described the factual basis for Batista's conviction and various district court proceedings that are irrelevant to the present matter, stated that he had been fired by Batista's family, and summarily asserted that Batista was not prejudiced. Response ¶¶ 12–13. Aranda did not address any of the conduct described in the preceding paragraph, or explain why Batista was not prejudiced by that conduct.
Aranda represented Guidri Espinal in his appeal from a criminal judgment sentencing him to, inter alia, 41 months' imprisonment. Aranda failed to file a required form, despite being reminded to do so by the Court, and failed to file a brief, resulting in the dismissal of the appeal. In his response to our order to show cause, Aranda stated only that the appeal “was not pursued” because Espinal had been sentenced to the lowest sentence he could have received within the stipulated Sentencing Guidelines range in his plea agreement, and that Espinal “was not prejudiced since he received a guidelines sentence.” Response ¶¶ 14–15.
Aranda did not state whether Espinal had consented to the abandonment of the appeal. However, even if Espinal did consent, “an appellant's counsel of record who determines that the appeal will not proceed for any reason is required to inform the Court of the situation and seek to either withdraw the appeal or withdraw as counsel.”In re Yan, 390 Fed.Appx. 18, 21 (2d Cir.2010). “[C]ounsel may not end the representation of a client without taking affirmative action, or permit the termination of an appeal by allowing its dismissal for lack of prosecution.” In re Payne, 707 F.3d 195, 206 (2d Cir.2013) ; see also Second Circuit Local Rule 4.1(a) -(d) ().2
Our order to show cause also directed Aranda to explain his conduct in two district court cases, in which the presiding judges found his performance deficient in various respects.
As a preliminary matter, we observe that attorney...
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