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What Goes into a Good Appellate Brief?

Writing an appellate brief is a part of every law school’s training, and students are required to practice writing briefs in the first year of college. Yet, there is a subtle art to writing a successful appellate brief. An ineffective brief could be an important reason for a lost appeal. Our team of top appellate lawyers has written thousands of briefs over the years and knows what it takes to write a good brief.

Trial Attorneys Are Not Necessarily the Best People to Write a Brief

It’s difficult to find a trial lawyer who has the expertise that goes into writing a good appellate brief. They often equate the content with that of a jury speech and address appellate judges as they would address a trial judge or even jurors. Such briefs are usually filled with irrelevant rhetoric that serves no purpose. Some trial lawyers understand the nuances of an appellate brief but fail to present their arguments effectively.

A Good Brief Has Arguments that Are Presented Well

The appellate brief is always framed within the standard of review and contains all the necessary facts and law, providing sufficient background information. It also explains the relief that’s requested. The brief must have a logical flow with an analysis that’s easy to follow without missing any essential points. The relevant law must be mentioned to allow the judges to decide on the raised contentions. It must cite all relevant cases whenever possible. You may also provide attachments to supplement the brief. For example, if you claim that a statute has changed, make sure that a copy of the older statute is attached. Similarly, rules and regulations relevant to the brief must be attached because they help save time.

The Facts Are Presented Briefly but Precisely and Persuasively

Facts must be presented precisely and effectively, giving the law clerks and appellate judges the background and presenting facts they need to understand and analyze. The points must refer to the Record on Appeal because law clerks and appellate judges always refer to the record sites while examining the brief. Experienced appellate attorneys also prefer to catalog and mark exhibits rather than haphazardly presenting them.

Appellate Attorneys Understand the Nuances of Writing Briefs for Different Appellate Courts

Appellate judges in an intermediary court usually restrict themselves to analyzing trial court judgments based on existing laws. They do not generally involve themselves with factfinding. Arguments based on factfinding are best reserved for trial courts. Similarly, arguments related to change of public policy or public law is best left to the Supreme Court.  Appellate attorneys preparing a brief for the federal court know that they must refer to the Federal Rules of Appellate Procedure and the local rules of the court when the appeal is being made.

Most importantly, appellate attorneys must follow procedural rules that govern appeals. There are instances where briefs have been rejected because they contained too many lengthy footnotes. Sometimes briefs are dismissed because they’re too long and sometimes because there’s too much material in the brief.

If you are looking for experienced appellate attorneys to file a criminal or civil appeal, visit us!

source https://www.brownstonelaw.com/blog/what-goes-into-a-good-appellate-brief/

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How to Choose a Criminal Appeals Lawyer

A criminal conviction can have severe implications on your personal and professional life. It could mean thousands of dollars in fines, imprisonment, court fees, and even loss of a professional license. For serious offenses, you could lose voting rights, firearm privileges, and could be sentenced for a lengthy prison term. Are you looking for criminal appeal lawyers in Georgia? Read these tips to choose the right attorney and improve your chances of success:

Values Time

During a criminal conviction, time is of the essence. Maximizing your chances of winning a criminal appeal largely depends on filing the proper paperwork with the appellate court within the given timeframe. For example, the notice of appeal with the appellate court must be filed within 30 days of the judgment made at the original trial court. If the criminal appeal lawyer fails to do so, the court can throw the appeal even before it is heard.

As soon as you contact the appeal lawyer, he or she must respond promptly. As soon as you reach the lawyer or fill out the online contact form on the lawyer’s website, you should expect someone from the lawyer’s team to get back to you quickly.

Experienced

Naturally, the criminal appeal lawyer you choose must be qualified. But experience is also an important consideration. Make sure that the attorney has plenty of experience in handling appellate cases. Your lawyer must understand the nuances that differentiate between trial and appellate courts. The attorney must know the basics of criminal appeals and must be honest enough to explain the possible consequences of losing or winning the appeal. They must also advise about the penalties associated with the charges against you.

Experience also determines confidence. Criminal cases move fast, and a few seconds can make a significant impact on the case. During the initial interview, check the lawyer’s appearance. His or her confidence and experience are often apparent throughout the interview. You must like the way the appeal lawyer presents himself or herself because your lawyer is going to speaking for you.

Understanding When to Appeal

Not all aspects of your case can be appealed. For example, you can only file convictions related to sentencing errors, errors of law, or miscarriage of justice. If the counsel offers ineffective assistance, if the evidence was excluded improperly, or if jury instructions were given incorrectly, you can always file an appeal.

  source https://www.brownstonelaw.com/blog/how-to-choose-a-criminal-appeals-lawyer/

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Everything You Wanted to Know About Appealing a Case

If you’re not happy with the judge’s order or decision in a court trial regarding a criminal or civil case, you can, in most cases, request an appeal in an appeals court. There can be several grounds for appeal. For instance, you may appeal a case citing an error of law in prior proceedings. Such errors could be related to misinterpreting a legal precedent or using evidence that should not have been included. You could also make an appeal claiming procedural matters weren’t followed correctly, compromising the fairness of a trial. If you are planning to appeal a civil or criminal court judgment, here’s everything you need to know:

1. What Are the Various Grounds for Appeal?

Appellate attorneys can appeal if the judge has not followed the proper procedure of law like instructing the jury, handing testimony of the witness, or other mishandled procedures. Appeals can also be made if the judge has misinterpreted a hear-say rule or included testimony that should have been excluded during the trial. Sometimes, the judge may have misapplied a principle of law or applied a statute that does not apply.

For example, a criminal appeals lawyer may hire a forensics expert to make sure blood samples, DNA samples, hair samples, and other pieces of evidence were not mishandled. In a civil appeal, the appeals lawyer may hire financial experts and even handwriting specialists to check if any information earlier submitted during the trial contradicts any statements.

2. What Is an Appellate Brief?

An appellate brief is a statement made by the appeals attorney arguing that the decision in the trial court was incorrect. Naturally, the party who won the case in the trial court will defend the judge’s decision.

3. How Does the Appeal Attorney Determine the Decision in the Trial Court Was Wrong?

Appeals attorneys refer to the record, i.e., elaborate documentation of the proceedings that took place during the trial. This includes pleadings, the pre-trial motion, exhibits that were put up as evidence, a transcript of the court proceedings, post-trial motion, and other relevant information.

4. Why Should You Choose Experienced Appellate Attorneys?

An experienced appeal lawyer understands that the success of an appeal largely depends on thoroughly scrutinizing the record to get critical evidence. Appeal procedures are complex and require expertise when filing and arguing appeals. Penny pinching isn’t advisable when looking for an appeals lawyer. A successful appeal often depends on writing an excellent brief, so choose a lawyer with a reputation for excellent oral skills and who understands the various cases related to your appeal.

source https://www.brownstonelaw.com/blog/everything-you-wanted-to-know-about-appealing-a-case-2/

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The High Demand for Lawyers amid the Coronavirus Pandemic

From giving proper advice to employers on how they should respond once an employee tests positive for coronavirus to helping them counselling employees afraid of contracting it through the workplace. Top appellate lawyers work around the clock in order to help clients navigate the unexplored legal waters that are sparked by the swiftly spreading COVID-19. Some law firms have designed multidisciplinary task forces so as to assist clients, both domestic as well as international, to tackle the myriad of challenges posted due to this pandemic.

These top appellate lawyers alongside firms are helping all others while grappling with the substantial effects of coronavirus on their day to day operations, for instance, the need to close their offices and employees working remotely. Numerous companies have also embraced the pandemic’s long term economic effects that could lead to a boost in the demand for legal services while at the same time depressing the market for all others.

Lending a Helping Hand to Employers

There are several employers who have inquired regarding how they should treat those employees who have tested positive for COVID-19. Our top appellate lawyers recommend that employers make sure they are taking all the necessary precautions and actions when it comes to determining which employees must be required or requested to self-quarantine. If an employer decides that any employee cannot enter the workplace, the employer must ensure that he/she remains in compliance with all the other laws that might come into play, for instance, the federal Family and Medical Leave Act.

The FMLA, for instance, requires employers with more than fifty employees within seventy-five miles of the business’s worksite in order to provide employees with a job protected, unpaid leaves for specific medical and familial reasons. Employees who take the FMLA leaves are allowed to receive the same health coverage from their employers just as they were before taking the leaves.

Your employer plan should include the following:

A report of how the business of the company is going to continue during a temporary closing, government lockdown or leave.

A remote work from home policy that helps the continuation of all your business’s operations.

Extra cleaning or decontamination services, alongside the provision of soaps, hand sanitizers and antiseptic wipes to make sure your workspace is safe.

Incessant communications with the employees that provide latest, most accurate information on all best practices along with precautions for protection against COVID-19.

GUIDANCE FOR EMPLOYEES AND HEALTH CARE INSTITUTIONS

Some of the Top appellate lawyers representing employees state that they too have been fielding a solid stream of queries regarding the implications of COVID-19, in particular relating to the safety of their workplaces. It is advised the employees who are worried about the symptoms they are experiencing should request their employers to provide reasonable accommodations as per the law.

    source https://www.brownstonelaw.com/the-high-demand-for-lawyers-amid-the-coronavirus-pandemic/

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How Has COVID-19 Affected Law Firms

The world has been reshaped by the 2019 coronavirus, and numerous industries will undergo a transformation. Once the dust settles down, the legal landscape is going to look extremely different.

How Has COVID-19 Affected the Legal System At Large

Coronavirus’s influence on the practice of law is felt the most inside the courtroom. There are lesser cases overall, with all the hearings being postponed, dispositions cancelled or postponed, and the deadlines extended. The insistence that mostly drives the legal industry has been mostly removed. Therefore, there is a need for people to hire attorneys on a short term basis. These delays, along with slow-downs, pose a potential threat to the appeal lawyers’ income.

The cash flow has slowed down, and all the finances are in an upheaval. There are numerous people who require access to additional funds which includes endowments, structured expense plans, and investments, to name a few. Under such circumstances appeal lawyers who help out their clients with these financial activities must prepare to act quickly.

How Will COVID-19 Affect Court Appearances and Clients

There is a level of difficulty faced by firms due to coronavirus as they switch to working remotely. This difficulty is going to depend on two factors:

Court appearances

Age of clients

There are numerous cases which have been cancelled or postponed, and some courthouses have been completely shut off. Essential activities, for instance, criminal bond hearings and child custody are still taking place. Nonessential court cases, for example, personal injury and evictions have been put on hold. Consequently, law firms are going to find older clients who require increased face to face interactions. COVID-19 also adds an extra layer of urgency as your clients might face extremely difficult decisions in the face of adversary. For all employment lawyers, clients who have been laid-off are going to require instant assistance as they begin to navigate unemployment and various other challenges.

How Is COVID-19 Going To Affect Law Firms

Business owners are most likely to ramp up efforts in expectation of defaults, forbearances, plus alterations to short term compensation plans. As per our appeal lawyers, we can expect to see an uptick in a non-compete lawsuit.  COVID-19 is going to bring an increased number of clients to law firms. The recession in the year 2008 triggered the launch of new businesses. There is a whole host of new startups just waiting to emerge as a consequence of COVID-19. Attorneys are going to be in high demand in order to help businesses develop as well as evolve.

Between March 15th and 21st 2020, more than 3.3 million people have filed for unemployment. This is 1% of the country’s population. As these individuals head back to the workforce, they will have to readjust their goals accordingly. Some of these jobs will never return and will not be altered. This is going to provoke some individuals to explore other career options.

All new business owners are going to seek help from lawyers to help them legally protect their business. Lawyers are going to be tasked with helping startup owners make all the correct decisions regarding their tax status and deciding which entity to create, for instance, sole proprietorship or a limited liability corporation. Your clients will require help with their operations and membership agreements throughout the COVID-19 pandemic.

  source https://www.brownstonelaw.com/how-has-covid-19-affected-law-firms/

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Seven Points to Consider When Selecting an Attorney

Finding an appeals attorney can be a complicated task and would require you to consider a plethora of factors before making a decision. An attorney is someone who represents you in the court of law, which is why it is imperative to make an informed decision, especially when it comes down to an appeal attorney. Why the increased focus on appellate attorneys you might ask? Well, firstly, appellate attorneys represent cases that are generally not in the plaintiffs’ favor, which is why it requires an even greater consideration before choosing your appeal attorney. If you are wondering how to choose your appeals attorney, here are seven tips to help you make an informed decision:

Licensed Attorney

Well, obviously, the first factor you need to consider is whether your attorney has a license. Even if they have one, you should also confirm if they are allowed to represent your case in the court of law. Signing up with an attorney and finding later that your case cannot be represented will only cause unnecessary delays in your appeal procedure.

Effective communication skills

One of the most important traits an attorney needs to possess is effective communication skills. The attorney needs to explain the judge why your case needs favor. A piece of advice, always have a word with your attorney in detail. If he/she is unable to convince you, chances are they might not be able to convince the judge and the jury.

Past record

Historical information about various practices and cases represented in the court of law will certainly help you understand your attorney’s background. An attorney with many cases on their career will definitely have a better exposure and understanding about how courts work. It also gives you the ability to reflect on their success rate to determine their capacity and ability to represent cases effectively.

Trustworthy

For someone who represents your case in the court of law, you surely need to develop some sort of trust. You need to unfold a lot of information to your attorney and often, the information is personal. If your attorney is not trustworthy, it might result in an embarrassing situation. A piece of advice: seek for reviews from the market or trust your gut feeling about the attorney. If you feel that the attorney is not a trustworthy individual, chances are you are right.

Experience with similar cases

Specialization is one critical factor when it comes to representing the case effectively and increasing the chances of winning. For example, if you have filed for a personal injury claim, but hire an attorney specialized in real estate cases, chances are that the attorney will not be able to represent your case as effectively.

Understands your case

Before you decide to proceed with an attorney, ensure that they understand your case. You need to be clear about what your expectations are and what the attorney needs to push for. Do not leave it at the discretion of the attorney or assume they understand. Ask for their opinion and views explicitly. Since you are paying for the services, you have all the right to demand if they understand what they are representing. If you feel, your attorney is not competent enough to understand the objective of the case, it is best to look for another one.

Transparent about fees

The judicial system has different fee structure that you may be unaware and usually the attorney needs to inform you about the various legal fees you need to cover. However, it is better to be transparent about the fees right from the start to avoid blowing your budget mid-trials.

source https://www.brownstonelaw.com/seven-points-to-consider-when-selecting-an-attorney/

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How the Judicial System Works in an Appeal Process

The judicial system is tricky and complicated. Each category of judicial system has differing laws and practices according to the misdemeanor, claim, the state, and various other factors. Since there are several rules and regulations that need to be considered when presenting a case, it can often become difficult to determine the course of the judicial system. For example, the judicial system is different for handling juvenile cases compared to adult criminal appeals. Similarly, the judicial system works differently for eviction cases than personal injury claims. One of the trickiest encounters you can face in the judicial system is when your case is rejected and you need to represent yourself with an appeal. Now you might think that you can simple search for the top appellate lawyers or criminal appeals lawyers to increase your chances of success. However, here are a few things you need to know about judicial system and how criminal appeals work.

The Judicial System For appeals

When a court hands out its ruling, you are allowed to defend your case in a higher court and refute the ruling placed against you. It does not matter whether you were the plaintiff of the defendant. As long as the ruling was not in your favor, you are free to appeal against it in a higher court. Frist, the higher jurisdiction court will either accept or deny the appeal, which means chances are that your appeal will not be heard. Therefore, it is imperative that you hire from the top appellate lawyers available to make your appeal worthy and acceptable.

 How do you make the criminal appeals worthy?

Well, according to law, if you are wrongfully convicted of a crime you did not commit, you need to challenge the ruling in a higher court of law. However, criminal appeals need to point out an error made by the jury or the judge. That means, that your criminal appeals lawyer needs to examine the ruling made by the court and identify a fault in the verdict based on the guidelines provided in the law. The appeal needs to be descriptive and clear to be accepted in the higher court.

 What Happens once my appeal is accepted?

Once criminal appealsare accepted in a higher court, the criminal appeals lawyer will seek a standing order to halt the verdict or the penalty imposed by the previous court. However, this process needs to be quick and effective to ensure the plaintiff does not face any severe consequences due to a delay in the process.

 Hiring one of the top appellate lawyers gives you an edge as they have the necessary exposure and experience in the field. It may be a tad more expensive to hire one of the top appellate lawyers compared to other criminal appeal lawyers with less exposure and experience. However, when it comes to criminal appeals, you better not take your chances on your case and hire the best talent available to speed up the process.

   source https://www.brownstonelaw.com/how-the-judicial-system-works-in-an-appeal-process/

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Eleventh Circuit Court of Appeals Supreme Court Petition – Copeland

Eleventh Circuit Appeal of Plea Agreement Rule 11

In 2011, a grand jury sitting in the Middle District of Florida returned a thirty-eight-count indictment, charging Copeland with eleven counts of mail fraud violating 18 U.S.C. § 1341, (Counts One through Eleven), sixteen counts of wire fraud in violation of 18 U.S.C. § 1343 (Counts Twelve through Twenty-Seven), nine counts of aggravated identity theft in violation of 18 U.S.C. § 1028A (Counts Twenty-Eight through Thirty-Six), and two counts of making false claims against the United States in violation of 18 U.S.C. § 287 (Counts Thirty-Seven and Thirty-Eight). Read Mr. Copeland’s Petition: Copeland Brief.

Criminal Plea Agreements in Federal Courts

Copeland entered into a written plea agreement with the Government. Id. Per the plea agreement, Copeland would plead guilty to Counts Twenty-Seven, Thirty-Six, and Thirty-Seven of the indictment. Id. at 3a. Subsequently, the Government would dismiss the remaining counts in the indictment. Id. Importantly, the Government stated that Copeland should receive a downward departure and a reduced sentence under U.S.S.G. § 3E1.1 for acceptance of responsibility. Id. Given this notion, Copeland believed it was in his best interest to agree to enter a guilty plea. Id.

Sentencing Hearings in Federal Criminal Cases

On June 18, 2012, Copeland was sentenced to a total of 264 months imprisonment. App. 3a. Importantly, the PSI findings, which were ultimately adopted by the trial the judge, included two pre-indictment incidents. Carlos Dawson was a witness for the Petitioner at sentencing, however, he was prevented from offering mitigating evidence on behalf of the Petitioner. App. 36c. Both of these led to the PSI, including a U.S.S.G. § 3C1.1 enhancement for obstruction of justice. Id. Moreover, the PSI did not include the U.S.S.G. § 3E1.1 adjustment as promised by the Government. Id. The PSI stated that this § 3E1.1 adjustment was not initially included because Copeland did not truthfully admit all of his conduct nor did he voluntarily assist authorities in the investigation of the crimes charged. Id. at 37c.

First Appeal.

Soon thereafter, Copeland appealed the sentence to the Eleventh Circuit Court of Appeals stating that the Government breached the terms of the plea agreement by failing to recommend a three-level guideline reduction under U.S.S.G. § 3E1.1. Id.  United States v. Copeland, 520 F. App’x. 822, 823 (11th Cir. 2013). The Eleventh Circuit agreed and remanded the case for resentencing before a different judge. App. 3a; United States v. Copeland, 520 F. App’x. at 828.

Remand and Resentencing

Prior to the resentencing hearing, the Probation office revised the Presentence Investigation Report. App. 3a. Once again, the § 3C1.1 adjustment due to pre-indictment incidents. App. 4a. However, the promised § 3E1.1 downward adjustment for acceptance of responsibility was applied, which resulted in a 235-293 sentencing range. Id. Ultimately, the court varied down to a total term of imprisonment of 204 months. Id.  Copeland appealed his sentence once more to the Eleventh Circuit Court of Appeals, arguing that the court erred by applying the 3C1.1 enhance for obstruction of justice stemming from pre-indictment incidents.    App. 5a.

Second Appeal.

On March 19, 2015, the Court of Appeals dismissed Copeland’s appeal stating that:

Because Copeland did not challenge the district court’s initial decision to apply the enhancement when the opportunity existed in his first appeal, that decision is law of the case, and Copeland is deemed to have waived his right to challenge the enhancement on resentencing and in this appeal (Cites omitted).

 Copeland’s Habeas Corpus Petition under § 2255.

On June 7, 2016, Copeland, pro se, filed a petition for habeas corpus relief under § 2255. App 35c. Specifically, Copeland argued that he received ineffective assistance of counsel in violation of the Sixth Amendment. App 38c. First, Copeland argued that he received ineffective assistance of counsel when his trial counsel promised an unrealistic sentence in order to induce a guilty plea that he would have otherwise not entered. Id. As a result, Copeland argued that he entered a plea unknowingly, involuntarily, and unintelligently. App. 42c. Specifically, Copeland informed the court that his previous counsel advised him that the maximum sentence he could receive under the plea agreement was 84 months imprisonment. App. 44c. However, according to his trial counsel, it was more likely that Copeland was going to receive closer to 60 months imprisonment given prior cases. Id. Importantly, Copeland testified to these facts in his sworn affidavit. App. 33-34c.

source https://www.brownstonelaw.com/eleventh-circuit-court-of-appeals-supreme-court-petition-copeland/

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Young Petition for Writ of Certiorari US Supreme Court

Boulder Young Petitions US Supreme Court to Overturn Criminal Federal Case

Petitioner Boulder Young, also known as Boulder Daniel McManigal [“Petitioner”], was indicted on May 24, 2017 for four counts relating to the distribution of methamphetamine. The indictment claimed that on three separate occasions, Petitioner sold methamphetamine to ATF agents or informants. The prosecution additionally asserted that Petitioner possessed a reputation for dangerousness, citing proffers provided by two of Petitioner’s supposed customers who were both under indictment for related drug charges at the time. Although Petitioner has never been convicted of a felony and possesses a very limited criminal history, the prosecution cited his firearms collection as further evidence of his supposedly violent character.

On August 2, 2017, Petitioner agreed to plead guilty to Conspiracy to Distribute a Controlled Substance , and signed a memorandum of the proposed plea agreement. The plea was entered on October 2, 2017. App. 1a. This offense carries a mandatory minimum sentence of 120 months in prison. App. 3a. Paragraph 41 of this memorandum requires Petitioner to waive his right to appeal the conviction and the sentence involved. Furthermore, paragraph 41 stipulates that at the conclusion of the sentencing hearing the Court will note that Petitioner’s appellant rights are limited. The Magistrate Judge entered the guilty plea on October 2, and it was accepted by the District Court on October 18, 2017. App. 1a.

Right to Appeal Federal Conviction

On January 11, 2019, Petitioner was sentenced to the mandatory minimum of 120 months in prison and five years of supervised release. App 8a. Counsel for Petitioner argued that the court should apply the 18 U.S.C. § 3553(f) safety valve provision, authorizing a sentence below the federal minimum. To be eligible for “safety valve” relief, defendant must have minimal criminal history and an offense which is nonviolent in nature. The court held that Petitioner failed to meet the burden of proof due to his possession of several firearms, and the fact that he was in the process of cleaning one of them during a federal drug deal. The judgment was entered on January 14, 2019.

 Read more about the federal appeal: Young PETITION FOR A WRIT OF CERTIORARI to United States Supreme Court

source https://www.brownstonelaw.com/young-petition-for-writ-of-certiorari-us-supreme-court/

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Longmire v. WARSHAW BURSTEIN COHEN SCHLESINGER & KUH, LLP

Eric Longmire Petitions United State Supreme Court in Case With Warshaw Berstein

Whether the State Appellate Division wrongfully denied Petitioner’s Motion for Leave to Appeal when sua sponte and without notice to Petitioner, and without providing him an opportunity to respond, it determined that Petitioner failed to establish a prima facie case of employment discrimination against his former employer. Longmire Petitions the US Supreme Court in a case with Warshaw Berstein, and the Petition is attached here: PETITION FOR A WRIT OF CERTIORARI United States Supreme Court

New York Court of Appeals Opinion

The second question for review in the petition is:

Whether the State Appellate Division erred in affirming sua sponte and without notice to Petitioner, and without providing him an opportunity to respond, the decision and order of the motion court in dismissing Petitioner’s counterclaim for legal malpractice against the Respondent.

source https://www.brownstonelaw.com/longmire-v-warshaw-burstein-cohen-schlesinger-kuh-llp/

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Kyle Hurst v. United States Forest Service – Petition for Writ of Certiorari

Kyle Hurst Challenges Rainbow Family Immunity Ruling

The question presented in the petition is:

Whether the Eleventh Circuit wrongfully absolved Respondent of liability when it determined that Moore Lake was not an “area” where a fee was charged, or a part of an area used for commercial purposes.  Read the Petition here: Hurst Petition

The Rainbow Family has long history of violating the laws

Equally important, the Permit for the Rainbow Group covered “3 square miles”. 4 Since the distance to Moore Lake and Silver Lake is less than 1 nautical mile, the holding in Goodman means that the properties are the same “area” and the Permit covered activity at both Silver Lake and Moore Lake. The Eleventh Circuit failed to correctly apply Goodman for the following reasons:

A “fee” is charged for access to Silver Lake;

Moore Lake and Silver Lake are less than 1 mile apart;

Both Moore Lake and Silver Lake are covered by the plain language of the Permit, stating that activity of Rainbow Family is permitted up to “3 square miles” from Moore Lake.

The holding in Goodman means that USFS cannot avoid liability and the Eleventh Circuit opinion incorrectly interpreted federal law. The Court of Appeal’s decision strays from the factual issues in the case. The facts are clear that Moore Lake is a part of Silver Lake. Moore Lake is the camping compliment to Silver Lake.

 Contact Robert Sirianni and Brownstone Law to discuss your Supreme Court Appeal.

source https://www.brownstonelaw.com/kyle-hurst-v-united-states-forest-service-petition-for-writ-of-certiorari/

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Brownstone Law Files Petition to United States Supreme Court

Jackson v. United States Petition for Writ of Certiorari

The Sixth Circuit’s decision in Ruelas v. Wolfenbarger, 580 F.3d 403 (6th Cir. 2009) acknowledged that this court’s seminal decision in Fry v. Pliler, 551 U.S. 112 (2007) did not overule Mitchell v. Esparza, 540 U.S. 12 (2003) (per curiam). In Ruelas, the Sixth Circuit held that a federal habeas court is free to apply the Esparza harmless error standard to determine whether a state court of appeals reasonably applied the Chapman harmless error standard on direct review. In the decision below, infra, App. 3a, the court of Appeals applied this standard. However, the Kentucky Supreme Court did not apply the Chapman harmless error standard on direct review.

Brownstone Law Petitions U.S. Supreme Court

Read more about the Petition here:  Petition for Writ of Certiorari.

This case presents the following questions:

 Whether the Sixth Circuit erred in applying the Esparza harmless error standard, instead of the Brecht harmless error standard on federal habeas review, when the state court failed to apply Chapman on direct review.

 Whether a trial court’s erroneous denial of a request for a self-protection instruction as to the lesser included offenses of second-degree manslaughter and reckless homicide may be deemed harmless.

Contact Robert Sirianni to discuss more about your appeal.

source https://www.brownstonelaw.com/brownstone-law-files-petition-to-united-states-supreme-court/

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First Amendment Substantial Truth Defense

Supreme Court Writ on First Amendment

The August 14, 2019 Order of the United States Court of Appeals for the Eleventh Circuit denying Schiano’s Petition for enc banc review, which decision is herein sought to be reviewed was not published.  The June 7, 2019, Opinion of the Panel of the United States Court of Appeals for the Eleventh Circuit was unpublished, but can be found at Schiano v. Friedman, 2019 U.S. App. LEXIS 17105 (11th Cir. 2019).  The September 26, 2017, Opinion of the United States District Court for the Southern District of Florida was unpublished, but can be found at Friedman v. Schiano, No. 16-cv-81975-BB, 2017 U.S. Dist. LEXIS 159584 (S.D. Fla. January 6, 2017).              The statutory provision believed to confer on this Court jurisdiction to review on a writ of certiorari the judgment or order in question is 28 U.S.C. §1257.  Read the writ here: Cert Petition- First Amendment

Whether substantial truth is a complete defense to defamation under the First Amendment, regardless of the motives of the speaker?

Schiano owned Hotwiremedia.com, a “party vendor directory” that sold listing space and banner advertisements on its website to service companies that catered to the party planning industry.  A few months after Schiano trained Freidman to maintain Hotwiremedia.com’s database and to sell vendor listings, Freidman represented to clients of HotWireMedia.com that Hotwiremedia.com was purchased by Friedman and Freidman’s Planningforevents.com company. Thereafter, Appellee Freidman charged Hotwiremedia.com clients’ credit cards for Freidman’s commissions and for banner ad upgrades. Schiano reported Friedman’s actions to the local Police Department and then started a webpage on the Hotwiremedia.com website documenting Appellee Freidman’s fraud. Thereafter, Appellee Freidman accused Appellant Schiano online of being, among other things, a child molester and rapist. Schiano’s business did not survive Freidman’s accusations, and he was forced to leave his home, opting to rent the property due to the loss of business. Schiano was forced to move from his home at 3840 Northwest 17th Avenue, Oakland Park, Florida 33334 to 400 NW 53rd Court, Oakland Park, Florida, 33309. As of December 12, 2016, Schiano’s usual place of abode was the property at 400 NW 53rd Street.

Schiano added that the District Court erroneously failed to recognize Schiano’s truth defense as a complete defense to allegations of defamation and failed to properly consider the economic burden imposed on Schiano by the $1,310,535.08 judgment and injunctions that permanently shut down Schiano’s business websites.

Contact Brownstone Law and Robert Sirianni to discuss a Supreme Court Writ (888) 233-8895.

  source https://www.brownstonelaw.com/supreme-court-first-amendment/

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Test Post

rvtyrtyr styrty

source https://www.brownstonelaw.com/test-post/

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Appeals Court Overturns Conviction of Emily Usnick

Emily Usnick Conviction

An appeal court overturned a conviction of a woman accused of involuntary manslaughter of her baby. Emily Usnick, a forty-three years old woman from central Missouri, gave birth alone at home alone and did not seek medical attention before her baby who she named Hannah died.

Central Missouri Woman Emily Usnick Convicted of Involuntary Manslaughter

The Circuit Court of Johnson County convicted Emily Usnick of first-degree involuntary manslaughter following a jury trial. Usnick who had been originally charged with second-degree murder but was later convicted with first-degree involuntary manslaughter, second-degree child endangerment, and possession of a controlled substance in the death of her baby in July 2017. The prosecutors contended that she was guilty because of giving birth unattended, did not seek medical care attention after giving birth and putting the body in a plastic bag. At the trial, prosecutors presented evidence that Usnick had sent text messages the evening of the birth and that there was an ambulance substation located three-quarters mile away. As charged, the state court argued that Usnick had recklessly caused the death of her baby by failing to seek medical assistance following the childbirth and enclosing the dead body of the child in a plastic bag and container.

In 2009, the body of the baby was found in a plastic bag inside the car track during a drug raid at the home of Usnick in St. Elizabeth by investigating officers. The decomposing body was found two weeks after it had been dumped in the car. Investigators found large amounts of methamphetamine in Usnick’s house which she admitted that she ha been smoking marijuana and methamphetamine the night before giving birth. Usnick was not charged in connection to the death of the baby until February 2012. An autopsy done on the body of the baby revealed that the infant girl a lethal dose of methamphetamine in her liver and blood. The autopsy was not specific whether the death of the baby was caused by methamphetamine or she drowned. Hannah died due to lack of oxygen. During the final ruling, the court sentenced Usnick to five years in the department of corrections.in a separate trial, the court sentenced her five years for possession of controlled drugs to be served concurrently with her manslaughter charge.

Judge Witt Overturns Usnick Conviction

The Missouri western district court of appeals on Tuesday overturned the conviction of Emily Usnick following a unanimous report written by judge Gary Witt. According to the report, Witt stated that the state did not give sufficient evidence to prove that Usnick acted with criminal intent or recklessly when her baby died and should not have been convicted of involuntary manslaughter. According to Witt, experts were not able to determine the clear cause of the death of the baby within a reasonable degree of medical certainty. With this, it is impossible for a lay juror to make the right determination that the cause of death was because of a criminal act as opposed to natural causes. The fate of the case depended on the rare question of whether giving birth without seeking medical care might be a basis of a crime. About this, Usnick contends that the state has no duty imposed on expectant mothers to ensure they have a medically attended birth or otherwise face criminal prosecution and the state does not contest. On a statement given to detectives, Usnick said that she planned to give the baby for adoption. She said that she was so beautiful and it was unfortunate that things had turned to the worst. Usnick believes that it is possible that baby Hannah drowned or suffocated while submerged in the water.

In the case facts statement, Witt wrote that Usnick was alone when her water broke and she delivered the baby girl into a toilet. Usnick told the investigators that after she delivered, it took her several minutes before she recovered from the shock and picked the baby. In her statement to investigators, Usnick said that she was terrified because the baby was not breathing or moving. Eventually, she took the body of the baby and put it in a plastic bag and put it inside the car trunk. The autopsy concluded that the baby was alive when it was born, but the prosecutors did not argue on the basis that Usnick had drowned the baby.

In the appeal conviction, Judge Witt stated that Usnick did not seek medical attention because her car was broken down. She also did not have cellphone minutes to call for help, and even if she had minutes, her house had inconsistent cell service. In an email on Tuesday to the newspaper, Phillip Zeeck, one of the attorneys of Usnick, stated their defense argument in the court briefs. The brief states that Emily did not recklessly have an unattended birth. It was not her will to go into Labour when no one else was at home. This does not criminalize the act of having unattended birth. Appeal on Tuesday stated that the state of Missouri could not convict a person on an offense based solely on an omission to perform an act unless there is a law defining the offense expressly or a duty to perform the omitted act is imposed by the law. With this, the fact that Usnick had a medically unattended delivery cannot qualify as criminal prosecution in terms of the law. The state court of appeal also failed to prove that the death of the baby was a result of unnatural causes.

The appeal court concluded that they had reversed Emily Usnick’s appeal criminal case conviction of first-degree involuntary manslaughter. Emily Usnick had been handed a sentence of five years in prison for conviction of involuntary manslaughter and a concurrent five-year sentence for drug possession conviction. She did not appeal drug conviction and is still in the Missouri Department of Corrections facility prison in Chillicothe. The appeal was handled by the state attorney general office. The office declined to give a response to the request of commenting about the overturned conviction. The county prosecutor’s office Miller County said that it was reviewing the decision of the court.

Contact Brownstone Law to discuss your federal appeals in Missouri.

source https://www.brownstonelaw.com/appeals-court-overturns-conviction-of-emily-usnick/

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Nouman Raja Conviction Appeal

Palm Beach Cop Nouman Raja Convicted

Attorneys of Nouman Raja who is a former Florida law enforcement officer filed an appeal and are requesting for another new trial. Nouman Raja is was Palm Beach Garden officer and is now convicted after shooting a man who happened to be a driver who was stranded. He is now appealing the court to give him another trial. Appeal attorney representing Nouman Raja has filed all the necessary paperwork in demand for another new trial. The reason for this is that the initial trial was not fair and impartial. The Palm Beach County jury had found this man guilty of attempted first-degree murder and manslaughter for the 2015 shooting of the deceased Corey Jones which was on a 1-95 exit ramp.

Jury Finds Nouman Raja Guilty of Corey Jones

He was working in plain clothes that day, He drove his van which was unmarked the wrong way up to an off-ramp, he then stopped a few feets away from the late Jone’s break-down SUV at around 3.15 am. This was on October 18th. What the prosecutor said is that Raja did not identify himself and that he acted in an aggressive manner thinking that Jones was a carjacker. Jones was a licensed firearm holder and the aggression he faced from Raja forced him to pull out his gun as he tried escaping. Raja continuously fired at him and caught him with a bullet that went straight through his heart.His lawyers, however, are appealing for his conviction stating that he is even eligible for a bond.

Raja Seeks to Appeals Conviction

They say he should have a house arrest while they continue appealing his case which is a serious conviction of manslaughter and first-degree murder. In a request that was filed with the Palm Beach County, Raja’s legal team led by Circuit Judge Joseph Marx said that he never violated the conditions for his pre-trial $250,000 for around three year’s time. They said that in his time on (house arrest) he complied with every guideline and went through all the stringent requirements of this procedure without any hitches. Attorney Steve Malone who represents Raj stated this firmly that the convict followed every detail required of him.

 The prosecutors will have another chance of filing a response right before Marcx convenes a hearing. The family of the slain Jones will get a chance of sharing their thoughts on this matter. On Raja,s request, the appellate attorney’s note that he meets the required conditions under Florida law which can make a release under bond arguably possible. Among the reasons that they put forward to support their point is that Raja has no criminal records, he also has longstanding ties with the community. This shows he is a good man who would not have the intention of killing carelessly. His conviction was overshadowed by the fact that Marx made the mistake of not giving Raja’s defense attorney the chance to convince the jury that the shooting was a justifiable use of deadly force carried out by a law enforcer. The appeal lawyers further state that Raja is not a risk to the society or a flight risk, and he has a job lined up for him if he is released and he would continue living with his wife who he married 16 years ago as well as their two children and one of them has special needs. Now what they await is the judge’s discretion on whether he will grant the appellate bond. There is normally a particular chance for police officers who are convicted of serious crimes as well as convicts who are facing serious prosecutions. The appeal lawyers of Raja are seeking a bond of a reasonable amount. A defense attorney of South Florida known as Mark Eiglarsh said that the case facing Raja is a serious one and therefore one should not take the bond off the table after sentencing. A house arrest is what his lawyers are particularly seeking at first for Raja would rather serve time with his family. He can have a job here at Boynton Beach company that deals with selling tactical military gear. However, the nature of this case is too serious and charges like these don’t just get dropped. The family of Jones is going through a lot and especially his children. It is so sensitive and it’s upon the judge to decide whether to give him an appeal. The appeal lawyers of Raja have to give it their all id they expect a positive outcome.

Contact Brownstone Law to discuss any appeal in Florida.

source https://www.brownstonelaw.com/nouman-raja-conviction-appeal/

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Lorenzo v. Securities and Exchange Commission: Federal Appeal

Securities and Exchange Commission Rule 10b–5 makes it unlawful to(a) “employ any device, scheme, or artifice to defraud,” (b) “make any untrue statement of a material fact,” or (c) “engage in any act, prac- tice, or course of business” that “operates . . . as a fraud or deceit” in connection with the purchase or sale of securities. Read more about white collar crime under 10(b)(5). In Janus Capital Group, Inc. v. First Derivative Traders, 564 U. S. 135, this Court held that to be a “maker” of a statement under subsection (b) of that Rule, one must have “ultimate authority over the statement, including its content and whether and how to communicate it.” Id., at 142. On the facts of Janus, this meant that an investment adviser who had merely “participat[ed] in the drafting of a false statement” “made” by another could not be held liable in a private ac- tion under subsection (b). Id., at 145. Read more about this Federal Appeal:

Lorenzo v. SECDownload

Petitioner Francis Lorenzo, while the director of investment banking at an SEC-registered brokerage firm, sent two e-mails to prospective investors. The content of those e-mails, which Lorenzo’s boss supplied, described a potential investment in a company with “con- firmed assets” of $10 million. In fact, Lorenzo knew that the company had recently disclosed that its total assets were worth less than $400,000. source https://www.brownstonelaw.com/lorenzo-v-securities-and-exchange-commission-federal-appeal-2/