06-5136-cr
U.S.A. v. Santiago
                                   UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                 August Term, 2006

(Submitted: June 29, 2007                                                                   Decided: July 18, 2007)

                                               Docket No. 06-5136-cr

UNITED STATES OF AMERICA,

                     Appellee,

                     -v.-

LUIS SANTIAGO,

                     Defendant-Appellant,

LOUIS HERRERA, EARL REYES, WAYLAND R. GIBBS,

                     Defendants.

Before: CABRANES, RAGGI, Circuit Judges, and BERMAN ,1 District Judge.

         In an appeal from a criminal conviction in the United States District Court for the Southern

District of New York (George B. Daniels, Judge), court-appointed defense counsel moves to withdraw,

pursuant to Anders v. California, 386 U.S. 738 (1967), on the ground that there is no non-frivolous basis

for appeal. Before this Court will rule on counsel’s motion, counsel is ordered to take reasonable

actions to ensure that the defendant, who may be illiterate, receives adequate oral notice of (1) the

substance of the Anders brief, (2) the defendant’s right to proceed pro se or seek appointment of new

counsel, and (3) the likely consequence of a failure by the defendant to respond to the Anders motion.

         Counsel’s motion to withdraw is denied, without prejudice to renewal upon the filing of a

declaration showing reasonable efforts to convey the required notice orally to the defendant.


         1
            The Honorable Richard M. Berman, of the United States District Court for the Southern District of New
York, sitting by designation.

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                                                         Ellyn I. Bank, New York, NY, for Defendant-
                                                         Appellant.

                                                         Alexander J. Willscher, Assistant United States
                                                         Attorney, (Michael J. Garcia, United States
                                                         Attorney, of counsel,) United States Attorney’s
                                                         Office for the Southern District of New York,
                                                         New York, NY, for Appellee.

JOSÉ A. CABRANES, Circuit Judge:

        In United States v. Leyba, 379 F.3d 53 (2d Cir. 2004), we held that when counsel representing a

non-English speaker files a motion to withdraw as counsel on appeal pursuant to Anders v. California,

386 U.S. 738 (1967), he must take reasonable action to ensure that his client received notice of the

motion in a language the client understands. United States v. Leyba 379 F.3d at 55-56. Today we address

a case in which counsel represents a defendant who may be illiterate.

        Defendant-appellant Luis Santiago (“defendant” or “Santiago”) appeals from a judgment of

conviction entered in the United States District Court for the Southern District of New York (George

B. Daniels, Judge), following a plea of guilty to (1) conspiracy to commit robbery, (2) robbery, and (3)

brandishing a firearm during the robbery. In the plea agreement, the defendant agreed to waive his

right to file an appeal if he was sentenced within or below the stipulated guidelines range of 135 and

147 months. The District Court imposed a sentence of 51 months for counts one and two, each to be

served concurrently, and the District Court also imposed the mandatory 84-month term of

imprisonment for count three to run consecutively to counts one and two, for a total sentence of 135

months. The District Court further imposed a period of five years of supervised release, and a special

assessment of $300. Santiago, who has filed a timely notice of appeal, was initially serving his sentence

at the Rikers Island Correctional Facility in New York City, which serves primarily as a pre-trial

detention center. The record does not reveal where Santiago is now imprisoned. His counsel in

proceedings in the District Court, Ellyn I. Bank (“Bank”), has moved to be relieved pursuant to Anders,



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and the Government has moved for summary affirmance.

        Under Anders, counsel may ask the Court for permission to withdraw from representing the

defendant in an appeal if “counsel is convinced, after conscientious investigation, that the appeal is

frivolous.” 386 U.S. at 741 (quoting Ellis v. United States, 356 U.S. 674, 675 (1958)). Counsel’s request

“must . . . be accompanied by a brief referring to anything in the record that might arguably support the

appeal,” id. at 744, and by an affidavit indicating that the client was furnished a copy of the motion and

accompanying brief, as well as “a letter informing the client that he or she has the right to file a pro

se brief,” United States v. Arrous, 320 F.3d 355, 358 (2d Cir. 2003). Our Court’s instructions to counsel

entitled How to Appeal Your Criminal Case also specifies the notice to be given to the client:

               An attorney filing an Anders brief must also submit an affidavit or affirmation to
        the Court stating that the client has been informed:

                (1) That a brief pursuant to Anders . . . has been filed.

                (2) That the filing of an Anders brief will probably result in the dismissal of the
        appeal and affirmance of the conviction.

               (3) That the client may request assistance of other counsel or submit pro se
        response papers.

United States Court of Appeals for the Second Circuit, How to Appeal Your Criminal Case (2004); see

Leyba, 379 F.3d at 54-55.

        In this case, on April 9, 2007, Bank filed, along with her Anders motion and brief, a declaration

(1) that she had served the defendant a copy of the Anders motion and brief “by mailing copies of said

documents” to him at the Anna M. Kross Center on Rikers Island; and (2) that the defendant had been

“informed” that the brief was filed, that the motion will most likely result in the dismissal of his appeal,

and that the defendant may request assistance of other counsel or submit pro se response papers. She

attached to her declaration a copy of the letter she sent to the defendant which conveyed the

documents noted above. For convenience we will refer to the various documents that must be



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conveyed to a defendant when an Anders motion is contemplated as “the Anders notice documents.”

         It is unclear from Bank’s declaration whether she simply mailed the letter to Santiago or also

had some oral communication with him. In any event, the defendant has not responded to the Anders

motion by submitting to the Court any comments of his own. According to the Pre-Sentencing Report

submitted to the District Court by the United States Probation Office, the defendant is illiterate,

although he understands both English and Spanish. On this record, it is possible that if the defendant

received the Anders notice documents he would not have understood them.2 We believe that in these

circumstances, the notice accorded to the defendant may have been inadequate.

         “An elementary and fundamental requirement of due process in any proceeding which is to be

accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested

parties of the pendency of the action and afford them an opportunity to present their objections.”

Mullane v. Central Hanover Bank & Trust, Co. 339 U.S. 306, 314 (1950). In United States v. Leyba, we held

that where counsel knows that the client does not speak English, counsel must “[a]t a minimum, . . .

make reasonable efforts to contact the defendant in person or by telephone, with the aid of an

interpreter if necessary, to explain to the defendant the substance of counsel’s Anders brief, the

defendant’s right to oppose it or seek new counsel, and the likelihood that the brief could result in

dismissal of the appeal.” 379 F.3d at 56. We held in that case that written notice, “in a language

understood by the client, would also suffice.” Id.

         In other circumstances, where a defendant is literate in English and can comprehend the

information conveyed to him by an attorney who seeks permission of the Court to withdraw under

Anders, the Anders notice documents conveyed by Bank would meet the basic requirement of notice to



         2
            Although the Pre-Sentencing Report appears to indicate that the defendant is illiterate, there is some evidence
in the rec ord that the defend ant can read and und erstand English. See, e.g., App. At 84 (“I [i.e., Judge Daniels] find the
testimony credible that the defendant not only looked at the statement and read it to himself, but read it back to the
agents out loud.”)

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clients. But we are here presented with a defendant who may not be literate in English or in his native

Spanish language.

        In this case, where the defendant may be illiterate, the Anders notice documents alone will not

suffice without some additional effort to ensure that their contents are communicated to the defendant

orally. We cannot confidently assume that if the defendant receives the Anders notice documents he

will necessarily be able to find someone to read them to him. At a minimum, when counsel knows or

has reason to believe that the client may be illiterate, she must make some reasonable effort to contact

the defendant in person to explain the contents of the Anders notice documents or arrange to have

someone read them to him. The effort to accomplish notice must be a reasonable one and

reasonableness will always depend on the circumstances presented. In some cases, a defendant may be

incarcerated far from his attorney’s office, or may even be living abroad. Where the defendant is in

custody at a distant facility, counsel should make a reasonable effort to assure that someone is available,

including perhaps an employee of the correctional facility, to read aloud the Anders notice documents to

the defendant in a language he understands. Where the defendant is living abroad, we may have no

alternative other than to indulge a presumption that the defendant, upon receipt of a letter from

counsel, reasonably will seek to have the Anders notice documents read aloud to him.

                                            CONCLUSION

        On the record before us, we cannot determine whether Bank has communicated orally with

Santiago or arranged for someone at the prison to read her letter and other documents to him.

Accordingly, we deny her motion to be relieved as appellate counsel in accordance with Anders, without

prejudice to renewal within thirty days of the filing of this opinion upon a showing of reasonable efforts

to convey the required notice to the defendant orally in a language that he understands.

        Any renewed Anders motion will be referred to this panel for consideration. The Government’s

motion for summary affirmance will be held in abeyance until such time as we are informed that a


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renewed motion has been filed or that the defendant’s counsel has decided to proceed in some other

manner.




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