U.S. v. Arrous, Docket No. 01-1458.

• Decision Date: 21 February 2003
• Docket Number: Docket No. 01-1458.
• Citation: 320 F.3d 355
• Parties: UNITED STATES of America, Appellee, v. Jacques ARROUS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

320 F.3d 355

UNITED STATES of America, Appellee, v. Jacques ARROUS, Defendant-Appellant.

Docket No. 01-1458.

United States Court of Appeals, Second Circuit.

ANDERS Motion Submitted October 4, 2002.

Decided February 21, 2003.

Cecil C. Scott, Assistant United States Attorney, Brooklyn, New York (Loretta E. Lynch, United States Attorney, Kelly T. Currie, Assistant United States Attorney, Eastern District of New York, Brooklyn, New York, of counsel), for Appellee.

Colleen P. Cassidy, New York, New York (Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, New York, of counsel), filed Anders Brief for Defendant-Appellant.

Before: CARDAMONE, MINER, and SOTOMAYOR, Circuit Judges.

CARDAMONE, Circuit Judge.

We have before us two motions. One is made pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), by attorney Colleen P. Cassidy, Esq., on behalf of the Legal Aid Society, asking to be relieved as counsel for defendant Jacques Arrous; the other is made by the government, requesting summary affirmance of Arrous' judgment of conviction.

The district court inappropriately sentenced Arrous in absentia. That error makes it difficult for us to rule on an Anders motion that his appeal is frivolous. None of the federal rules or existing case law defense counsel furnished us is persuasive in untangling this problem. But common sense considerations compel us sua sponte to apply the harmless error doctrine in these particular circumstances. The distinction between an error and harmless error may not always be evident but it is nonetheless real and not a semantic sleight of hand. It seems appropriate therefore that we write to explain our reasons for ruling that despite the error at sentencing, defendant's appeal is frivolous. Accordingly, both motions are granted.

BACKGROUND

A. Facts

This case arose in the following circumstances. Defendant Jacques Arrous was flying as a passenger on September 30, 1999 aboard Tower Airlines Flight 35, en route to John F. Kennedy International Airport in New York City from Paris, France. During the flight, Arrous was asked repeatedly by an attendant to take his seat because of air turbulence. When the attendant put a hand on Arrous' shoulder in a final attempt to get him to sit down, Arrous assaulted the attendant, punching him in the face, kneeing him in the groin and, when disembarking, threatening him verbally. The injuries from defendant's assault cost the flight attendant $388 in wages from lost time at work.

As a result of this incident, Arrous was arrested upon arrival in the United States and charged and indicted for assaulting a flight crew member on an aircraft, in violation of 49 U.S.C. § 46504 and 18 U.S.C. § 3551. The 47-year-old defendant appeared in the United States District Court for the Eastern District of New York (Gleeson, J.) on October 15, 1999, where he was told that witnesses to the incident — other flight personnel and passengers — generally supported the government's version of how this incident occurred. Arrous thereafter pled guilty to the charges and was sentenced to two months imprisonment, one year of supervised release, $388 in restitution, and a $100 special assessment. Judgment was entered November 1, 1999 and defendant promptly appealed.

B. Prior Proceedings

Subsequently, in February 2000, a Legal Aid attorney moved before a panel of this Court to be relieved pursuant to Anders, and the government moved for summary affirmance. Defense counsel stated that Arrous' guilty plea was entered knowingly and voluntarily and that there were no non-frivolous issues relating to the guilty plea. The district court's refusal to grant a downward departure and to sentence Arrous without a presentence report were not considered non-frivolous issues that could support an appeal of his sentence.

In November 2000 we entered an order denying the motions for Anders relief and summary affirmance, and instead instructed defense counsel to submit briefs with respect to whether the sentencing court erred by failing to address the issue of restitution during Arrous' plea allocution. When those briefs were filed, another panel of this Court, after considering them, ruled that the sentencing court violated Fed.R.Crim.P. 11(c)(1) by ordering Arrous to pay restitution without first advising him that restitution might be part of his sentence. The panel accordingly issued a summary order vacating the judgment and remanding the case to the district court with an order that it either 1) withdraw its order requiring Arrous to make restitution, or 2) allow Arrous to withdraw his plea of guilty and proceed to trial.

At the time of the ordered resentencing proceeding on July 27, 2001, defendant had served his two month sentence and his one year period of supervised release had ended. Arrous had returned to France, to rejoin his wife who had flown back when Arrous was arrested, and whose health was a matter of some concern to him. Defendant was therefore not present.

An attorney from the Legal Aid Society representing Arrous explained to the sentencing court that his client had been immediately deported after completing his sentence based on an Immigration and Naturalization Service (INS) detainer issued for his exclusion from the United States. The government confirmed that defendant had been removed from the United States. During a status conference, defense counsel, attorney Peter Kirchheimer, Esq.,¹ informed the district court judge that his attempts to contact Arrous with letters and phone calls had been unsuccessful. The district judge resentenced Arrous despite his absence, and defense counsel filed a notice of appeal. Attorney Colleen Cassidy, Esq., of the Legal Aid Society was subsequently assigned to defendant's appeal by the district court.

Counsel now files a motion to be relieved from representation because Arrous' appeal, in her estimation, would be frivolous. Attorney Cassidy declares that the only potential issue for appeal is the appropriateness of the district court's decision to resentence in defendant's absence.

C. Relief From Representation

Under the doctrine set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), court-appointed appellate counsel may move to be relieved from his or her duties if "counsel is convinced, after conscientious investigation, that the appeal is frivolous." Id. at 741, 87 S.Ct. 1396. In support of the motion, defense counsel must supply a brief identifying by record references any issues that have at least arguable merit supported by legal authority, and explain why they are frivolous. See United States v. Burnett, 989 F.2d 100, 103 (2d Cir.1993). This Court will not grant a so-called Anders motion unless it is satisfied that (1) "counsel has diligently searched the record for any arguably meritorious issue in support of his client's appeal," and (2) "defense counsel's declaration that the appeal would be frivolous is, in fact, legally correct." Id. at 104. Defense counsel is also obligated to furnish the client with a copy of the brief defense counsel submits in support of the Anders motion, see Anders, 386 U.S. at 744, 87 S.Ct. 1396, and a letter informing the client that he or she has the right to file a pro se brief. See Burnett, 989 F.2d at 103.

Counsel has submitted an affidavit stating that she has provided defendant with the required documents and notifications. She further states that she mailed Arrous a copy of her motion, a copy of the Anders brief, a letter in French and English advising Arrous of his rights with respect to the motion, and a form to be returned to the clerk of this Court indicating whether or not he intends to file pro se papers. Counsel advises us that Arrous has not responded to this mailing, but we are satisfied that counsel's duty to inform Arrous of the Anders proceedings is fulfilled.

We also are satisfied that counsel has reviewed the record and brought to our attention the relevant issue. In her Anders brief, attorney Cassidy states that the only possible issue on appeal is whether the district court's modification of Arrous' sentence eliminating the restitution order was improper because it was conducted while Arrous was not present. We agree that this is the only viable issue which Arrous' appeal might raise. We must now decide whether this issue is truly "frivolous," thereby warranting counsel's release from representation. We turn now to that analysis.

DISCUSSION

Defense counsel argues that Arrous' absence from his resentencing proceeding does not raise a non-frivolous issue for appeal because (a) Arrous' presence was not required where, as here, his sentence was reduced, and (b) he put himself beyond the sentencing court's jurisdiction and therefore forfeited his right to be present.

A. Reduction in Sentence

With respect to the first argument, counsel relies on Fed.R.Crim.P. 43(c) (now Rule 43(b)(4)).² Rule 43(c) provided that a defendant's presence is not required during a proceeding involving a reduction or correction of sentence pursuant to Rule 35(b) or (c) or 18 U.S.C. § 3582(c). Attorney Cassidy admits that these circumstances are technically inapplicable to Arrous in the instant case: Rule 35(b) allows for reduction of sentence upon the government's motion to reflect defendant's substantial assistance; Rule 35(c) (now Rule 35(a)) allows a district court to correct a sentence, within 7 days, that was imposed as a result of "arithmetical, technical, or other clear error"; and 18 U.S.C. § 3582(c) applies only to modification of a term of imprisonment on motion from the Bureau of Prisons or for subsequent change in the United States Sentencing Guidelines. None of these circumstances are present in this case.

Arrous' resentencing therefore falls under Rule 35(a), the provision that allows correction of a sentence imposed on remand from the Court of Appeals for a district court's error of law (now...