19‐706 (L)
United States v. Kosic (Nunez)


                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT
                               ____________________

                                       August Term, 2019

(Submitted: September 24, 2019                              Decided: December 6, 2019)

                                  Docket Nos. 19‐706, 19‐3521
                                     ____________________

UNITED STATES OF AMERICA,

                                       Appellee,

                       v.

MEDIN KOSIC, AKA DINO, JASMIN CEJOVIC,
AKA MIN, MIRSAD BOGDANOVIC, AKA
MIKE, SHAUN SULLIVAN, THEODORE
BANASKY, AKA FREDDY, AKA EDUARDO,
ANTHONY FRANCESE, ALEXANDER BUCCI,
JOSEPH CUCCINIELLO, AKA CUCH,
KENNETH CHARLTON, and JENNIFER
BOGDANOVIC,

                                 Defendants,

MICHAEL NUNEZ, AKA GORDO, and
PAUL VAN MANEN,

                                 Defendants‐Appellants.
                                     ____________________
Before: CALABRESI, POOLER, and PARK, Circuit Judges.

      Defendant‐Appellant Michael Nunez moves for in forma pauperis (“IFP”)

status in this direct criminal appeal. Sammy Sanchez, retained counsel for

Nunez, moves to withdraw as counsel and for appointment of new counsel

pursuant to the Criminal Justice Act (“CJA”). Because Nunez has established that

he is financially eligible for CJA counsel, and because no threshold showing of

the merits of the appeal is required to obtain IFP status and CJA counsel in direct

criminal appeals, the motions are GRANTED.

                              ____________________

                         SAMMY SANCHEZ, Brooklyn, NY, for Defendant‐
                         Appellant Michael Nunez.

                         DONALD JOSEPH YANNELLA, III, New York, NY, for
                         Defendant‐Appellant Paul Van Manen.

                         SARAH KATHLEEN EDDY, CATHERINE E. GHOSH,
                         STEPHANIE L. LAKE, Assistant United States
                         Attorneys, for Geoffrey S. Berman, United States
                         Attorney for the Southern District of New York, New
                         York, NY, for Appellee.




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PER CURIAM:

      Defendant‐Appellant Michael Nunez moves for in forma pauperis (“IFP”)

status in this direct criminal appeal. His retained counsel, Sammy Sanchez,

moves to withdraw as counsel and for appointment of new counsel pursuant to

the Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A. Nunez has filed affidavits

showing that he is financially eligible for IFP status and appointment of CJA

counsel; however, the district court denied his IFP motion, finding that his

appeal would be frivolous pursuant to 28 U.S.C. § 1915.

      We write to explain this Court’s practice of granting motions for IFP status

and CJA counsel in direct criminal appeals without considering the merits. We

hold that it is proper in these circumstances to consider only a defendant’s

financial eligibility. Accordingly, we grant Nunez’s motions.

                                BACKGROUND

       Michael Nunez pled guilty to conspiracy to distribute and possess with

intent to distribute controlled substances while represented by retained counsel,

Sammy Sanchez. He was sentenced to 150 months’ imprisonment and timely

appealed. In the notice of appeal, Sanchez requested to be relieved as counsel


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and sought appointment of CJA counsel, stating that Nunez could not afford a

lawyer. He explained that his representation of Nunez was limited to the district

court proceeding, and that he charged him “at a much lower rate than the case

required.” Nunez, through Sanchez, has filed motions in this Court for IFP

status, for Sanchez to be removed, and for appointment of CJA counsel. He has

also submitted affidavits where he affirms that he has no income and no assets.

      Because Nunez had not been granted IFP status below, an applications

judge transferred the IFP motion to the district court for determination in the first

instance. The district court denied the motion, determining that, “[p]ursuant to

28 U.S.C. § 1915(a)(3), . . . any appeal would be frivolous and not taken in good

faith.”

                                  DISCUSSION

      Under 28 U.S.C. § 1915, a federal court may authorize the commencement

of civil or criminal proceedings in forma pauperis, that is, without the

prepayment of fees. 28 U.S.C. § 1915(a)(1). Generally, a litigant seeking IFP status

on appeal must first seek a ruling from the district court. Fed. R. App. P. 24(a)(1).

If the district court denies the motion and determines that an appeal would not


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be taken in good faith, then the litigant may seek an IFP determination from this

Court. 28 U.S.C. § 1915(a)(3); Coppedge v. United States, 369 U.S. 438, 444–46

(1962); Fed. R. App. P. 24(a)(3). When presented with an IFP motion in civil cases,

we consider the merits of the appeal, and, if we find that the appeal is frivolous,

we deny the motion and dismiss the appeal. See 28 U.S.C. § 1915(e)(2); Neitzke v.

Williams, 490 U.S. 319, 325 (1989).

      But criminal appeals are altogether different. They are governed by the

CJA, which states that criminal defendants shall be provided with counsel if they

are “financially unable to obtain” a lawyer.1 18 U.S.C. § 3006A(a)–(b).

Appointment of counsel under the CJA does not include any consideration of the

merits of the case. See id. Significantly, if a criminal defendant was appointed

CJA counsel in the district court, then IFP status is automatically authorized on




1This standard is different than the Section 1915 financial eligibility standard,
which requires a showing that the litigant is “unable to pay” court fees and is
typically determined by indigency. 28 U.S.C. § 1915(a)(1); see, e.g., Sears, Roebuck
& Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988) (per
curiam). Appointment of counsel under the CJA, however, requires only a
showing that the defendant “is unable to afford representation, though he need
not prove that he is indigent.” United States v. Parker, 439 F.3d 81, 96 (2d Cir.
2006) (internal quotation marks omitted).
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appeal. 18 U.S.C. § 3006A(d)(7) (“If a person for whom counsel is appointed

under this section appeals to an appellate court . . . , he may do so without

prepayment of fees and costs or security therefor and without filing the affidavit

required by [§] 1915(a)[.]”); see also Fed. R. App. P. 24(a)(3).

      This case presents the relatively rare occurrence where a financially

eligible criminal defendant seeks IFP status and CJA counsel for the first time on

direct appeal.2 Because Nunez was not represented by CJA counsel during the

district court proceedings, he does not benefit from an automatic grant of IFP

status pursuant to Section 3006A(d)(7). Nonetheless, it has been the practice in

this Circuit to grant motions for IFP status and CJA counsel to a criminal

defendant on direct appeal if the defendant is financially eligible under the CJA,

without considering the merits. We now formally hold that IFP motions on direct

criminal appeals are not subject to a merits determination under Section 1915. Cf.

18 U.S.C. § 3006A(d)(7). Such practice ensures that all financially eligible



2Such cases may occur where, as here, the defendant was represented in district
court by retained counsel who agreed to represent the defendant at a discounted
rate. It may also occur where the defendant was initially able to afford counsel at
a standard rate, but his financial circumstances changed during the course of trial
proceedings.
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defendants—whether granted CJA counsel in district court or for the first time

on appeal—are subject to the same standards.

      We join three other circuits that have considered the issue. See United States

v. Durham, 922 F.3d 845, 847 (7th Cir. 2019) (one‐judge decision); United States v.

Osuna, 141 F.3d 1412, 1415 (10th Cir. 1998) (two‐judge decision); and United States

v. Dangdee, 608 F.2d 807, 810 (9th Cir. 1979). But see United States v. Boutwell, 896

F.2d 884, 889 (5th Cir. 1990) (one‐judge decision).

      This practice is also consistent with long‐held precedent concerning the

appellate rights of criminal defendants. The Supreme Court has emphasized the

importance of guaranteeing the same rights to indigent criminal defendants as

defendants who are not indigent. See Anders v. California, 386 U.S. 738, 741 (1967)

(discussing case law). In 1962, prior to the enactment of the CJA, the Supreme

Court addressed the implications of Section 1915 for indigent criminal

defendants. See Coppedge, 369 U.S. at 446. It noted that, although a district court’s

certification that a criminal appeal lacked good faith was “entitled to weight[,]” a

court of appeals would typically lack adequate materials to determine the merits

on an IFP motion. Id. Thus, it held:


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      [i]f . . . the claims made or the issues sought to be raised by the
      applicant are such that their substance cannot adequately be
      ascertained from the face of the defendant’s application, the Court of
      Appeals must provide the would‐be appellant with both the
      assistance of counsel and a record of sufficient completeness to enable
      him to attempt to make a showing that the District Court’s certificate
      of lack of good faith is in error and that leave to proceed with the
      appeal in forma pauperis should be allowed.

Id. (internal quotation marks omitted).

      A year later, the Supreme Court held that indigent criminal defendants

have a right to appointed counsel in direct criminal appeals. Douglas v. California,

372 U.S. 353, 354–58 (1963). It explained that “where the merits of the one and

only appeal an indigent has as of right are decided without benefit of counsel, we

think an unconstitutional line has been drawn between rich and poor.” Id. at 357.

Thereafter, the Supreme Court established a framework for determining whether

a direct criminal appeal is frivolous: a court may examine the merits of the

appeal after defense counsel has conducted a “conscientious” examination of the

record and submitted a brief discussing any arguably meritorious issues on

appeal. Anders, 386 U.S. at 744–45.

      More recently, the Supreme Court has discussed the Anders procedure as a

safeguard to a criminal defendant’s rights, stating that “[o]nly after [counsel’s

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examination of the record pursuant to Anders], and only after the appellate court

finds no nonfrivolous issue for appeal, may the court proceed to consider the

appeal on the merits without the assistance of counsel.” Penson v. Ohio, 488 U.S.

75, 80 (1988); see also Smith v. Robbins, 528 U.S. 259, 278 n.10 (2000) (“Although an

indigent whose appeal is frivolous has no right to have an advocate make his

case to the appellate court, such an indigent does, in all cases, have the right to

have an attorney, zealous for the indigent’s interests, evaluate his case and

attempt to discern nonfrivolous arguments.”).3 In keeping with this precedent,

we have held that “we may not independently determine the merits of [a direct

criminal] appeal, absent a properly prepared Anders brief.” United States v.

Burnett, 989 F.2d 100, 104 (2d Cir. 1993); see also United States v. 777 Greene Ave.,

609 F.3d 94, 98–99 (2d Cir. 2010) (discussing this Circuit’s Anders procedure).

      In the end, all criminal defendants—indigent or not— possess the right to

a zealous advocate on appeal who must conduct a conscientious review of the




3In Robbins, the Supreme Court explained that the Anders procedure is a
“prophylactic framework” that safeguards a defendant’s right to counsel, but
that States may enact other procedures so long as those procedures continue to
protect defendants’ right to counsel. 528 U.S. at 273–76.
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record. That right would be vitiated if we could dismiss an indigent defendant’s

appeal as frivolous on the basis of an IFP motion before that review has occurred.

      Nunez, who has no income and no financial assets, has established that he

is financially eligible for appointment of CJA counsel. We therefore grant his

motions for withdrawal of retained counsel, appointment of CJA counsel, and

IFP status.

                                 CONCLUSION

      For the reasons discussed above, we hold that motions for IFP status and

for appointment of CJA counsel shall be granted in direct criminal appeals solely

based on the defendant’s financial eligibility under the CJA and without

consideration of the merits of the appeal. Accordingly, we grant Nunez’s

motions and direct the Clerk’s Office to appoint counsel pursuant to the CJA.




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