Second Circuit Not Troubled By Error on Notice of Appeal Form, Proceeds To Decide The Appeal
On September 18, 2017, in United States v. Caltabiano, No. 16-1275-cr, the Second Circuit (Walker, Lynch, and Lohier, Js.) clarified the jurisdictional scope of a Notice of Appeal. The Court confirmed its authority to review a criminal appeal notwithstanding errors on a form notice as to the scope of the defendant’s claims. On the merits, the Court affirmed the conviction and sentence of John W. Caltabiano, Jr.
A jury in the Northern District of New York returned a guilty verdict against Caltabiano in 2015 on multiple counts of mail fraud, conspiracy to commit mail fraud, and theft of government property. The charges against Caltabiano stemmed from a period of two and a half years in which Caltabiano—with his girlfriend’s assistance—falsely represented to the federal Social Security Administration, the New York State Workers’ Compensation Board, and Travelers Insurance that a workplace injury had left him completely blind. In reality, Caltabiano was able to drive, shop, go to the gym, and otherwise function with no apparent impairment in at least one of his eyes. As a consequence of his claimed injury, Caltabiano collected hundreds of dollars per week in lost wage benefits from the state and federal disability compensation funds. Caltabiano continued his “bogus” claim of total blindness even after a private investigator hired by Travelers Insurance filmed Caltabiano driving and generally moving about without the assistance that a blind person would need. See Slip Op. 6. The district court sentenced Caltabiano to a 57-month term of imprisonment, and also entered a judgment of restitution against him.
Caltabiano timely sought to appeal, and his counsel prepared a Notice of Appeal based on, but not identical to, the template available on the website for the Second Circuit. On this form, Caltabiano checked a box indicating that he was appealing from his judgment of conviction, but noted elsewhere on the form that his appeal “concern[ed]” his “[s]entence only.” Id. at 2–3. The primary issue was whether Caltabiano’s indication on the form that his appeal concerned his “[s]entence only” confined the court’s jurisdiction to a review of Caltabiano’s sentence and precluded a challenge to his underlying conviction.
The Court began by noting that aspects of the Notice of Appeal are jurisdictional, and failure to satisfy these requirements divests the court of jurisdiction over an appeal. Slip Op. 9 (quoting Smith v. Barry, 502 U.S. 244, 248 (1992). Federal Rule of Appellate Procedure 3 specifies that a putative appellant must include in his Notice of Appeal (1) the party taking the appeal, (2) the court to which the appeal is taken, and (3) the judgment or order being appealed. Fed. R. App. P. 3(c)(1). In accordance with Rule 3, the Second Circuit provides a form notice to appellants that includes the following section:
Notice is hereby given that _________ appeals to the United States Court of Appeals for the Second Circuit from the judgment [_], other [_] _________ (specify) entered in this action on ________ (date).
The Court concluded that this provision “reflects the necessary and sufficient elements of an effective notice of appeal” under Rule 3. Caltabiano’s Notice of Appeal also contained this section, and in it Caltabiano checked the box for “judgment” and provided the date of his conviction.
The Second Circuit’s form notice also solicits additional information: whether the offense occurred after November 1, 1987—the effective date of the Sentencing Guidelines—and whether the appeal “concerns” the defendant’s “[c]onviction only,” “[s]entence only,” or both. The version adopted by Caltabiano’s counsel and submitted to the Second Circuit mirrors this inquiry in all material aspects, and it is here that Caltabiano indicated that his appeal “concern[ed]” his “[s]entence only.”
The Court reasoned that these latter questions in the form notice are purely administrative, and “aid th[e] Court in classifying cases and managing its criminal docket,” but “do not . . . hav[e] any jurisdictional effect.” Slip Op. 13. The Court explained that the purpose of these questions is simply to “help allocate judicial resources.” Id. Although they appear on the same form as the questions required by Rule 3, the court held that an appellant’s answers “do not affect [the court’s] jurisdiction.” Id. The Court analogized to the corresponding civil form Notice of Appeal, which poses questions such as whether the appeal raises a matter of first impression, and which are not understood to confine the court’s jurisdiction in any way. Id.
Here, because Caltabiano had indicated he was appealing from the “judgment,” and because the “judgment” encompasses both Caltabiano’s conviction and sentence, the Court determined it had jurisdiction to review both. Slip Op. 15. The Second Circuit noted that this result was consistent with the law of the Third, Fourth, Tenth, and D.C. Circuits, whose local rules or standard Notices of Appeal disclaim any jurisdictional effect of responses to similarly administrative or docketing questions. Slip Op. 14–15. Although the Court made clear that criminal appellants can narrow the scope of an appeal by specifying particular aspects of the district court’s judgment as the subject of their appeal, the court held that appellants must do so in the space provided in the section for specifying an appeal from something “other” than the criminal judgment. Slip Op. 15.
Turning to the substance of Caltabiano’s appeal, the Second Circuit held that sufficient evidence supported Caltabiano’s convictions for mail fraud: the trial evidence showed that Caltabiano had consistently misrepresented his photophobia and blindness, that these misrepresentations were part of Caltabiano’s ongoing scheme to obtain disability benefits, and that the relevant authorities relied on these misrepresentations in awarding Caltabiano benefits to which he was not entitled. Slip Op. 17–18. The Second Circuit also rejected Caltabiano’s challenge to his jury instructions and sentence, neither of which Caltabiano had objected to in the district court. The Second Circuit found no plain error in the district court’s failure to charge the jury on an omission-based theory of fraud that was inconsistent with the evidence and the parties’ closing arguments, nor in the district court’s calculation of the amount of benefits Caltabiano might have obtained from his fraudulent scheme over his lifetime. Slip. Op. 18–21.
This case is a small piece of good news for defendants and one that is consistent with the Supreme Court’s admonition that “mere technicalities should not stand in the way of consideration of a case on its merits.” See Torres v. Oakland Scavenger Co., 487 U.S. 312, 316 (1988). Many defendants who are unfamiliar with the mechanics of appellate procedure file notices of appeal pro se. In other instances, the notices are filed by trial counsel who will not be handling the appeal and may not know what issues are being raised. But nothing done at this point in the process or under these circumstances should have any impact of the issues raised in the appeal or its outcome. The Second Circuit recognized the unfairness that would come from a contrary rule, and given that no law compelled a contrary rule, the panel elected to settle the issue by not limiting its own jurisdiction.
-By Lauren Capaccio and Harry Sandick