Writing An Effective Appellate Brief

When preparing to draft an appellate brief, every good appellate lawyer in South Carolina knows how important it is to narrow the issues down for the actual brief.  While an appellate attorney in SC may research many issues when reviewing the trial transcripts,  there are usually no more than four of five issues that should be raised in a brief.  If you can not find any case law that supports your position, you may want to re-think raising the issue in your brief.

Another important point to consider is the standard of review, which is how the appellate court reviews a decision made by the trial court.    For example, if the criminal defense lawyer in South Carolina did not make an objection at the trial level and the issue is not preserved, it may only be reviewed for plain error.  This is a very high standard and if the court can only review the issue for plain error, the error must be clear and the prejudice to the defendant must be evident in the record.  It is best to raise issues that have a de novo standard of review because the appellate court considers the issue “anew”, independently of the trial court’s findings.

Another important aspect of an appeal, whether State of Federal, is the record on appeal which is often referred to as the appendix by federal appellate lawyers in SC.   The record contains the important documents for the Appellate Court to consider, including the pleadings, relevant court orders, the judgment and the trial transcripts.  If you are appealing  from a lengthy trial, it may not be in your best interest to include all of the trial transcripts, as this may be excessive.  You need to ask yourself what documents are important for the issues you are raising in your brief when preparing the appendix.

When drafting the argument section of your initial brief, you want to be clear and concise. Do not use exaggerated expressions or exclamation points! Cite cases from South Carolina if you are filing the brief in the South Carolina Court of Appeals.  If the case is federal, and you are filing the brief in the Fourth Circuit, you want to cite Fourth Circuit case law.

It is also important to check the brief for typos and citation mistakes.  When you cite to the appendix in your statement of facts and throughout the brief, make sure the citations to the record are accurate.  Also, you must accurately cite case law and be sure to check that the cases you used are still good law.  It is a good idea to have another lawyer who handles appeals in South Carolina review the brief before it is filed, a fresh pair of eyes may catch additional mistakes.  It is so important to file a clean brief.

Lastly, once you receive the answer brief, it is almost always a good idea to file a reply brief.  However, a reply brief should not simply re-hash what was said in your initial brief, you should only respond to the arguments raised in the answer brief.  You get the last word, make it count.

If you have any questions regarding appeals in South Carolina or appeals in the Fourth Circuit Court of Appeals, contact the Mace Firm.  We handle appeals in the State of South Carolina, as well as the Federal System, including the Fourth Circuit Court of Appeals, the Second Circuit Court of Appeals and the Eleventh Circuit Court of Appeals.

 

Amanda Knox Guilty Verdict Reinstated

Criminal defense attorneys for Amanda Knox have a tough road ahead after the Italian court has reinstated the guilty verdict in her case.  Along with reinstating the verdict, the court increased her prison sentence to 28.5 years.  Over two years ago, the Italian court found that Knox and her ex-boyfriend Raffaele Sollecito were not guilty in the murder of Knox’s roommate, Meredith Kercher.  Knox was sent back to the United States following the verdict, and she expected to be able to move on with her life.  However, she knew that there was a chance that the court would order a third trial in the case.

Defense lawyers for Knox plan to appeal to Italy’s highest court, but they know that the appeals process could take a very long time to complete.  And then there is the notion of double jeopardy since she is being retried after an acquittal.  But Knox’s criminal defense attorneys dismiss that notion because her acquittal had never been finalized by the Italian court system.  A new prosecutor has been assigned to the trail and is arguing that the violence which lead to the murder stemmed from tension between the two females.  According to the prosecutor, Knox and Kercher were having arguments about cleanliness, and the “final spat” was triggered by an un-flushed toilet by a man named Rudy Guede.  Guede was actually convicted in a separate trial for this murder, but was found to have not acted alone.  He is serving a 16 year sentence.  Whether or not Knox will be extradited to Italy will be up to the US State Department.

Whether or not the US public believes Knox’s story of her innocence is up in the air.  Below are some interesting facts surrounding the crime:

1. Amanda lied about Kercher’s door-locking habits.  When postal police went to the home regarding a found mobile phone, Amanda and Raffaele showed the officer around the home.  The mobile phone had been found in a backyard and it belonged to Kercher; there had allegedly been a burglary earlier that day.  When the officer got to Kercher’s room, he noted that the door was locked; but Amanda assured him that Kercher always locks her door.  However, when another flatmate arrives at the home to find Kercher’s door locked, she panics and demands the door be forced open.  It was later learned that Amanda and Raffaele had attempted several times to gain access to the locked room before calling an emergency phone number.  It is unclear if those calls were made before or after the postal officer had visited the home.

2.  Based on evidence, the calls appear to have been made after the officer left the home.  The calls were allegedly made by Raffaele to inform authorities of the burglary and to let them know that Amanda had seen some blood in the home.

3.  The knife which was found in Raffaele’s apartment contained DNA from two people:  DNA from Kercher on the blade and DNA from Knox on the handle.  In addition to that, Knox’s blood was also found mixed with Kercher’s blood at the scene.

4.  Raffaele’s DNA was found on Kercher’s bra hook.  This evidence was found during a second search of the crime scene.

5.  In the small bathroom right near Kercher’s room, four drops of Kercher’s blood was found along with one drop of Amanda’s.  No DNA from Raffaele was found in this location.

6.  The burglary appears to be staged because there is glass on top of items strewn about the room.  This is an indication that the broken window allegedly used by the intruder as an entry point was broken after the room was ransacked.

7.  There was a pillow found under Kercher’s body with a bloody shoe print.  The prosecution and the defense disagree with who that shoe print belongs to.  One side says the shoe mark is from the same size shoe as Knox, but the other side contents that the print came from a larger shoe likely worn by a male.

8.  Guede’s DNA was found on Kercher’s hand bag, on Kercher’s sweatshirt and inside her vagina.

The Italian court feels they have the right person behind bars for this crime, but evidence is pointing to a second or third attacker.  It will be up to the criminal defense team of Amanda Knox to prove her innocence, once again.

For those charged in any type of criminal case, it will be very important to speak with and hire a criminal defense attorney who completely understands all the issues and complexities that go along with your charges. A Myrtle Beach criminal defense attorney at The Mace Firm spends a significant amount of time in criminal courts throughout all over the United States. There are criminal lawyers all over the country, but few are like those at our firm who practice criminal defense in Charleston, Miami, Myrtle Beach, Pawleys Island, Surfside Beach, Columbia and several other areas.

If you or someone you know is facing federal criminal or state criminal charges, you will need to speak with an experienced Myrtle Beach criminal defense attorney. A criminal defense lawyer at The Mace Firm is ready to speak with you about your case. Call a criminal defense attorney to schedule your free consultation.

Rod Blagojevich Appeal

Ex-governor Rod Blagojevich hired a federal appeal lawyer to file an appeal with the Seventh US Circuit Court of Appeals.  Blagojevich was sentenced to 14 years in prison after the federal government spent years trying to win a conviction against him for wire fraud, attempted extortion, bribery conspiracy to commit extortion and conspiracy to commit bribery.  All these charges stem from Blagojevich’s attempt to sell President Obama’s former senate seat in exchange for political favors.

In his federal appeal, appeal attorneys for Blagojevich argued that the ex-governor “made no effort to conceal his plan but discussed it openly with is advisers” and that he never personally profited from the scheme.  However convincing the arguments may be to onlookers, the prosecutors in his case felt differently when they filed a 169-page document detailing his wrongdoings and how the trial court did not err.  The brief stated that the verdict in Blagojevich’s trial was “supported by abundant evidence, and the defendant received a fair trial.”  In addition to that, one law professor commented that it would be very difficult for Blagojevich to convince the appeals court that he was not aware that pay-to-play is a criminal act due to the fact that he is an attorney.

At this point, Blagojevich’s federal appeal lawyer will have one last opportunity to rebut the government’s response before the three-judge appeals court panel will make their final ruling in the matter.

When you are involved in a federal appeal case, it is wise to have the help, experience and knowledge of a federal appeal lawyer.  A good federal appeal lawyer will research past precedent and existing legal cases to find grounds for your appeal.  This is necessary because a the federal appeals court will not simply reveal the lower court’s decision for frivolous reasons.

If you or someone you know would like to file an appeal in the federal appeals court or state appeal, it will be in their best interests to speak with an experienced federal appeal lawyer.  Please call an appellate attorney at The Mace Firm for a free consultation today.  If you need a South Carolina appellate attorney, contact our office at 1-800-94-TRIAL for a free consultation or contact us online.  We have attorneys who have passed the bar in several jurisdictions, including South Carolina, Florida, and Georgia.

Appellate Lawyer for BP Petitions for Dismissal

Appellate lawyer for BP oil company is now petitioning the appeals panel to dismiss the whole settlement, partially due to a high number of applicants for settlement funds.  For businesses, settlement advances has been “capped” at $100,000.  Since the announcement that BP had been victorious in appellate court last month, there was a surge in the number of applicants seeking an advance on their funds from settlement.

The appeals panel may not rule on the petition to dismiss the entire settlement until December, and many have been advised to delay any settlement claim payments until then.  Without the advances, the businesses who are supposed to receive a settlement amount would be waiting well into 2014 to receive anything at all.  The settlement advance applications are expected to increase even more over the next two months.  BP is expected to pay out more than $7 billion in settlement claims for private plaintiffs.  It is estimated that more than 100,000 claimants will receive some type of benefit from the proposed settlement.

Next Monday, the appeals court will hear the objections to the multi-billion dollar settlement deal between BP and the residents and business of the Gulf Coast.  BP is arguing that inflated claims by businesses will force them to pay out more money than originally expected.Appellate lawyers> for BP would prefer that the appeals court reverse the approved settlement, which does not have a cap.  The focus of this dispute is mainly from claims from businesses, because some feel that actual profit losses from the oil spill were not calculated properly.  BP would like for the court to adopt its interpretation of the settlement terms, or dismiss the whole thing all together.

When you are involved in a federal appeal case, it is wise to have the help, experience and knowledge of a federal appeal lawyer.  A good appellate lawyer will research past precedent and existing legal cases to find grounds for your appeal.  This is necessary because a the federal appeals court will not simply reveal the lower court’s decision for frivolous reasons.

If you or someone you know would like to file an appeal in the federal appeals court or state appeal, it will be in their best interests to speak with an experienced federal appeal lawyer.  Please call an appellate lawyer at The Mace Firm for a free consultation today.  If you need a South Carolina appellate attorney, contact our office at 1-800-94-TRIAL for a free consultation or contact us online.  We have attorneys who have passed the bar in several jurisdictions, including South Carolina, Florida, and Georgia.

Federal Appeals Court and Stop-Frisk Policy

US District Judge Shira Scheindlin ruled earlier this year that New York Police Department’s stop-and-frisk policy is discriminatory to minorities.  In August, the Judge decided that the city was violating the civil rights of “tens of thousands” of black and hispanic people by disproportionally stopping, questioning and frisking them.  The Judge then assigned a monitor to help the department change their policies and training on the stop-and-frisk policy.  This policy has been around for many many years, but it started coming under fire when the recorded stops of minorities increased to an all-time high in 2011.  Four of those minority men who were stopped and frisked presumable due to their race filed a lawsuit in 2004.  The suit became a class action case.

Once the Judge heard a trial, she stated that she would not be putting an end to the use of the policy, but alter the way the NYPD implement their stops.

Since the 2nd Circuit federal appeals court has become involved, they have said that the Judge’s ruling will be placed on hold until the upcoming elections in the city.  They feel that, should the outcome be in favor of Bill de Blasio, the fight could be dropped all together. With a de Blasio win in the election, the decision to have a monitor oversee changes to the policy would be overturned.  In a statement, de Blasio said that “we have to end the overuse of stop and frisk – and any delay only means a continued and unnecessary rift between our police and the people they protect.”

The federal appeals court took it one step further after blocking the ruling; they removed Judge Scheindlin from the case totally.  They say that she “ran afoul of the code of conduct for U.S. judges by misapplying a ruling that allowed her to take the case, [in addition to] allegedly giving media interviews during the trial.”  The appeals court went on to say that a new judge would need to be assigned at random to handle any further decisions in the matter.

When you are involved in a federal appeals case, it is wise to have the help, experience and knowledge of a federal appeal lawyer.  A good federal appeal lawyer will research past precedent and existing legal cases to find grounds for your appeal.  This is necessary because a the federal appeals court will not simply reveal the lower court’s decision for frivolous reasons.

If you or someone you know would like to file an appeal in the federal appeals court or state appeal, it will be in their best interests to speak with an experienced federal appeal lawyer.  Please call an appellate attorney at The Mace Firm for a free consultation today.  If you need a South Carolina appellate attorney, contact our office at 1-800-94-TRIAL for a free consultation or contact us online.  We have attorneys who have passed the bar in several jurisdictions, including South Carolina, Florida, and Georgia.

Federal Appeal to Forcibly Medicate

In February 2011, Gary Mikulich planted an explosive device outside the McNamara Federal Building in Detroit.  That device was detonated by a Detroit police bomb squad the following month after a security guard stored the device in the building for over two weeks.  A lower court issued an order in this matter which said that Mikulich was to be forcibly medicated by federal prison officials so that he may stand trial. Mikulich and his federal appeal lawyer contend that the defendant should not be forcibly medicated.  This week, the court of appeals upheld the lower court’s order.

In their decision, the court of appeals stated that “according to the magistrate judge, Mikulich claimed that he was once President of the United States, co-governor of California, a Secret Service agent and a U.S. Marshal.  His odd behavior continued throughout the proceedings.”  Mikulich even claimed that FBI agents in Detroit had stolen more than $1 billion from him.  Further, the defendant went on to say that his being held in custody was somehow linked to the deaths of Michael Jackson, Steve Jobs and Whitney Houston.

Mikulich failed to provide expert reports or testimony to support his insanity defense, which is another reason the appeals court upheld the decision to have him medicated for trial.  The court also wrote in its decision that he “would not even meet his burden to put insanity into issue at trial, let alone prove it by clear and convincing evidence as required by statute.”  As a result of the appeals court’s ruling, Mikulich will now be medicated, then evaluated, to determine whether or not he is competent to stand trial.

When you are involved in a federal appeal case, it is wise to have the help, experience and knowledge of a federal appeal lawyer.  A good federal appeal lawyer will research past precedent and existing legal cases to find grounds for your appeal.  This is necessary because a the federal appeals court will not simply reverse the lower court’s decision for frivolous reasons.

If you or someone you know would like to file an appeal in the federal appeals court or state appeal, it will be in their best interests to speak with an experienced federal appeal lawyer.  Please call an appellate attorney at The Mace Firm for a free consultation today.  If you need a South Carolina appellate attorney, contact our office at 1-800-94-TRIAL for a free consultation or contact us online.  We have attorneys who have passed the bar in several jurisdictions, including South Carolina, Florida, and Georgia.

Federal Appeal for SmartMetric

SmartMetric is the owner of issued patent 464.  This patent is subject of a patent infringement case which claims damages from Visa and MasterCard in the amount of $14.5 billion.  SmartMetric has moved forward this week by filing a notice of federal appeal in the appeals court.  They are arguing the lower court’s non-infringement ruling for Visa and MasterCard.  The same court also ruled against the two companies when they filed a motion to have the patent ruled as invalid. SmartMetric sued Visa and MasterCard, claiming they infringed its patent for a system for automatic connection to a network. The company claimed it was entitled to a 25% royalties of the anticipated savings Visa and MasterCard would receive from a drop in credit and debit-card fraud by the introduction of so-called EMV cards in the U.S.  EMV cards are being used in Europe and include a microchip as opposed to a magnetic strip.

SmartMetric is pleased that the lower court did not rule that their patent is invalid.  However, now the question remains as to who the infringing party is in the case.  SmartMetric claims to have specific evidence which shows that Visa and MasterCard used infringing technology.

Federal appeals are complex and challenging and the appellate attorneys at The Mace Firm devote tons of effort to their cases.  Additionally, there is often a lot of pressure placed on an appeal attorney since many appeals are decided based on the strength of their written briefs alone.  Sometimes the appellate court will hear oral arguments in a case.

When you are involved in a federal appeal case, it is wise to have the help, experience and knowledge of a federal appeal lawyer.  A good federal appeal lawyer will research past precedent and existing legal cases to find grounds for your appeal.  This is necessary because a the federal appeals court will not simply reverse the lower court’s decision for frivolous reasons.

If you or someone you know would like to file an appeal in the federal appeals court or state appeal, it will be in their best interests to speak with an experienced federal appeal lawyer.  Please call an appellate attorney at The Mace Firm for a free consultation today.  If you need a South Carolina appellate attorney, contact our office at 1-800-94-TRIAL for a free consultation or contact us online.  We have attorneys who have passed the bar in several jurisdictions, including South Carolina, Florida, and Georgia.

Federal Appeals Court and BP Oil Spill

In April 2010, oil company BP had a real crisis on their hands.  Their Deepwater Horizon oil platform had exploded, killing 11 workers and releasing about four million barrels of oil into the Gulf of Mexico.  It was the worst offshore oil spill in the history of the United States.  Along with the spill brought on several civil and criminal charges against the company, claiming damages in excess of $40 billion.  As of this month, BP is still attempting to limit those claims by stating that the terms of their settlement would allow for people and businesses to be compensated for false claims.  The settlement has become such an issue that a federal appeals court has stepped in to try to halt some of those payments.

The federal appeals court has asked the lower district court to take another look at the claims made against BP and determine which claims are legitimate.  The appeals court has ordered the judge in the lower district court to review the wording of the settlement so that a narrower set of definitions can be made.  This would allow for any unfair claims to be excluded from the settlement.  The judge for the district court agreed and found that BP may be paying out millions of dollars for false claims.  That money would be extremely difficult for BP to recover in the future.

The judge stated, “there is no need to secure peace with those with whom one is not at war.  The district court had no authority to approve the settlement of a class that included members that had not sustained losses at all, or had sustained losses unrelated to the oil spill.”  BP had attempted to halt the settlement payments twice before, both times unsuccessfully.

When you are involved in a federal appeal case, it is wise to have the help, experience and knowledge of a federal appeal lawyer.  A good federal appeal lawyer will research past precedent and existing legal cases to find grounds for your appeal.  This is necessary because a the federal appeals court will not simply reverse the lower court’s decision for frivolous reasons.

If you or someone you know would like to file an appeal in the federal appeals court or state appeal, it will be in their best interests to speak with an experienced federal appeal lawyer.  Please call an appellate attorney at The Mace Firm for a free consultation today.  If you need a South Carolina appellate attorney, contact our office at 1-800-94-TRIAL for a free consultation or contact us online.  We have attorneys who have passed the bar in several jurisdictions, including South Carolina, Florida, and Georgia.

Lansing Casino Argument in Federal Appeals Court

In 2012, the attorney general in Michigan sued to put a stop to a building project proposed by the Sault Ste. Marie Tribe of Chippewa.  The tribe proposed to build a tribal casino in downtown Lansing.  This month, the tribe and their appeal lawyers have made their arguments before a three-judge panel in the 6th Circuit federal appeals court, alleging that the lower court erred by granting the injunction which barred the tribe from working on the project.

The oral arguments happened after the tribe had appealed a federal district judge’s ruling that the injunction should be granted.  With that ruling, the tribe could not apply to the Department of the Interior to have the proposed casio land it had purchased held in trust for gaming.  This process is required prior to any casion being built.

The tribal leaders had been planning the casino for more than one year.  The casino they planned to build is 125,000 square feet and would be next to the Lansing Center.  It was projected to cost nearly $245 million and creat over 2,000 jobs.  They also had a plan to use some of their revenue for a scholarship program to help Lansing area high school students.

Attorneys for the state contend that the casino is in violation of federal law and the state gaming compact which the tribe signed in 1993.  One provision in that compact states that no land can be held in trust without having revenue sharing agreements with other in-state American Indian tribes.  The attorneys also feel that the tribe has imposed this burden upon itself by buying property and planning a casio “over [their] objection and warning.”

When you are involved in a federal appeal case, it is wise to have the help, experience and knowledge of a federal appeal lawyer.  A good federal appeal lawyer will research past precedent and existing legal cases to find grounds for your appeal.  This is necessary because a the federal appeals court will not simply reverse the lower court’s decision for frivolous reasons.

If you or someone you know would like to file a federal criminal appeal in the federal appeals court or state appeal, it will be in their best interests to speak with an experienced federal appeal lawyer.  Please call an appellate attorney at The Mace Firm for a free consultation today.  If you need a South Carolina appellate attorney, contact our office at 1-800-94-TRIAL for a free consultation or contact us online.  We have attorneys who have passed the bar in several jurisdictions, including South Carolina, Florida, and Georgia.

Street Artists in Federal Appeals Court

Appeals court denies appeal for street artists in New York.  Over the past three years in New York, street artists have been making claims in federal appeals court in an attempt to stop the City’s Parks Department from enforcing their rules, saying that the Department was violating their First Amendment rights.  The Department was making an effort to limit the number of street artists and street vendors allowed in Manhattan’s busiest parks.  The current rule states that there may only be up to 120 vendors at the parks at one time.

This effort cause street artists and vendors to feel like they were being pushed around by not being permitted access to the parks because they were too busy.  The rules in which the street artists were appealing allows for the Department to allocate spots for them to set up on a first come, first served basis.  Those rules were put into place when the City decided that the parks were too crowded.

In their appeal, the street artists and their federal appeal lawyer argued that the crowding was not coming from the artists, but from the green market and holiday commercial vendors.  The street artists feel that they are being singled out and that the City is implementing these rules only to keep them from the parks.  Their attorney stated that “the plaintiffs were considering appealing to the Supreme Court and that it [is] likely that performers would sue the city as well.”

In the 2nd U.S. Circuit Court of Appeals ruling, the judges ruled that the new rules limiting the number of artists and vendors will remain in effect.  The judges also rejected the claim that the plaintiffs were entitled to depose the City’s mayor, Michael Bloomberg.  The federal appeals court said that “it wanted to create a legal precedent by saying a party must demonstrate exceptional circumstances to justify such a deposition of a high-ranking government official.”  They went on to say that “high-ranking government officials are generally shielded from depositions because they have greater duties and time constraints than other witnesses.

If you or someone you know would like to file a federal criminal appeal in the Federal appeals court or state appeal, it will be in their best interests to speak with an experienced federal appeal lawyer.  Please call an appellate attorney at The Mace Firm for a free consultation today.  If you need a South Carolina appellate attorney, contact our office at 1-800-94-TRIAL for a free consultation or contact us online.  We have attorneys who have passed the bar in several jurisdictions, including South Carolina, Florida, and Georgia.

Sports Betting Federal Appeal

In 2011, voters in New Jersey passed a sports betting referendum, which has now brought on a federal appeal.  The following year, the State enacted a law which limited the bets to casinos in Atlantic City and to horse racing tracks.  Bets were not permitted in colleges or college games being played in New Jersey.  The State’s governor, Chris Christie, said that he was planning to grant sports betting licenses by the beginning of 2013, but those plans were put on hold.

This week, a three-judge panel heard the case at the 3rd US Circuit Court of Appeals and decided to uphold the ruling that the State’s betting law is in conflict with federal law and should not be implemented.  Christie has mentioned in the past that he would go to the nation’s highest court if it was necessary.  The ruling from the 3rd Circuit likely means that Christie will have to do just that: ask the Supreme Court to hear his case.

Many professional leagues stand behind the federal appeals courts ruling regarding sports betting.  In 2012, the NFL, NBA, NHL, MLB and NCAA sued the State of New Jersey.  The NCAA even went as far as to move several championship games and events out of the state.  The leagues feel that sports betting will harm the sanctity of the games and most are shocked that Christie is so adamant about the topic.

In their ruling, the judges wrote, “we are cognizant that certain questions related to this case–whether gambling on sporting events is harmful to the games’ integrity and whether states should be permitted to license and profit from the activity–engender strong views.  But we are not asked to judge the wisdom of PASPA or of New Jersey’s law, or of the desirability of the activities they seek to regulate.  We speak only to the legality of these measures as a matter of constitutional law…New Jersey’s sports wagering law conflicts with PASPA and, under our Constitution, must yield.”

When you are involved in a federal appeal case, it is wise to have the help, experience and knowledge of a federal appeal lawyer.  A good federal appeal lawyer will research past precedent and existing legal cases to find grounds for your appeal.  This is necessary because a the federal appeals court will not simply reveal the lower court’s decision for frivolous reasons.

If you or someone you know would like to file a federal appeal in the Federal appeals court or state appeal, it will be in their best interests to speak with an experienced federal appeal lawyer.  Please call an appellate attorney at The Mace Firm for a free consultation today.  If you need a South Carolina appellate attorney, contact our office at 1-800-94-TRIAL for a free consultation or contact us online.  We have attorneys who have passed the bar in several jurisdictions, including South Carolina, Florida, and Georgia.

Google Loses Federal Appeal

Google loses federal appeal regarding Street View.  Most of the people who use Google are aware of a feature on the site known as Street View.  Street View allows users to see real photos of maps they are searching, instead of drawings.  To make this possible, Google uses vehicles known as Street View cars with camera poles mounted on their roofs to take photographs of roads all over the world.  The photos not only capture images of roads, they also show viewers homes, stores and vehicles located on those streets at the time of the photo.  Sounds like a useful tool, and innocent at that.  However, as the cameras on the Street View cars were taking the photos of the roadways, they were also collecting “detailed information” and transmitting it over Wi-Fi networks they passed through.  This information included emails, usernames, passwords, photos and documents.  In the federal appeal filed in the case, Google was said to have wrongfully collected this personal information and, as a result, violated wiretap laws.

In their defense, Google argued that the Street View activities were not in violation of the wiretap law because data transmitted over Wi-Fi is considered a “radio connection” and is easily accessible to the public.  The federal appeals court disagreed with their defense and sided with the lower court judge’s ruling.  This is the first time an appeals court has ruled that it is illegal to “sniff out and collect” personal data from Wi-Fi networks supplying internet connections to people’s homes.  This is also the first time a company, Google, has tried to do something like this.

Internet privacy experts are thrilled at the news, saying that the federal appeals court decision “is a tremendous victory for privacy rights.”  In addition to that, Google is no longer allowed to “wi-spy.”  Google has even offered an apology for their snooping, which happened between 2008 and the beginning of 2010.

Since the federal appeals court’s ruling, all of the plaintiffs whose privacy was compromised will be able to move forward with their case against the company.  Due to the extensive reach of Google’s “snooping,” potential damages may amount to billions of dollars.  In fact, earlier in 2013, Google settled a lawsuit involving 37 states for $7 million.  In that case, Google was sued by the attorney general for invading privacy by collecting various data.

Since the appeals action was finalized, Google has disabled the equipment responsible for collecting the data and plans to destroy the data which was collected.

When you are involved in a federal appeal case, it is wise to have the help, experience and knowledge of a federal appeal lawyer.  A good federal appeal lawyer will research past precedent and existing legal cases to find grounds for your appeal.  This is necessary because a the federal appeals court will not simply reverse the lower court’s decision for frivolous reasons.

If you or someone you know would like to file a federal criminal appeal in the Federal appeals court or state appeal, it will be in their best interests to speak with an experienced federal appeal lawyer.  Please call an appellate attorney at The Mace Firm for a free consultation today.

Federal Appeals Court Upholds Decision in Oyster Case

The owner of California’s only oyster cannery plans to challenge the ruling made by the 9th US Circuit Court of Appeals wherein his lease for the farm was terminated due to being located in a protected marine wilderness area.  The federal appeals court rejected the appeal from Drake’s Bay Oyster Company was rejected, claiming that the refusal to renew the lease in 2012 was based on distorted scientific evidence which “exceeded his powers.”  Drake’s supplies California with at least 33% of the oysters consumed each year.

Interior Secretary Ken Salazar decided at the end of last year that he would not renew the company’s farm lease because a federal law from 1976 prohibits commercial activity on the reserved 2,500 acres on the shore.  According to the appeal, Salazar commissioned a study which revealed that the oyster farm possibly causes harm to birds, seals and marine habitat.  In opposition of the study and in favor of the farm, however irrelevant it may be now, the National Academy of Science claims that the negative impacts on the environment are exaggerated.

The owner of the farm, Kevin Lunny feels that he and his company are being wrongfully attacked because he feels very strongly about protecting ecosystems and the environment.

In its ruling, the 9th Circuit stated that the company failed to raise doubt over how valid Salazar’s decision was and that the company failed to show that the balance of equities weighed in its favor.  Salazar’s decision mentions that, while his findings reported both positive and negative impacts from the oyster farming, the impact was “ultimately uncertain.” Salazar’s decision additionally noted that Lunny was completely aware of the expiring lease and possible non-renewal when the farm was purchased by him 7 years ago.

Before the is final, Lunny has 45 days to ask for a rehearing from the federal appeals court.  As an alternate route, Lunny may decide to proceed with an appeal to the US Supreme Court.

When you are involved in a federal appeal case, it is wise to have the help, experience and knowledge of a federal appeal lawyer.  A good federal appeal lawyer will research past precedent and existing legal cases to find grounds for your appeal.  This is necessary because a the federal appeals court will not simply reverse the lower court’s decision for frivolous reasons.

If you or someone you know would like to file a federal criminal appeal in the Federal appeals court or state appeal, it will be in their best interests to speak with an experienced federal appeal lawyer who knows the ins and outs of the federal appeals court.  Please call an appellate attorney at The Mace Firm for a free consultation today.

Big Problem for Federal Prosecutors in NC

The 4th U.S. Circuit Court of Appeals plans to inform US Attorney General Eric Holder of their concerns with eastern North Carolina prosecutors failing to completely turn over evidence that the defense is supposed to be aware of.  This is a serious federal criminal appeal should it move forward.

The Court has stated that they are aware of three cases within the past two years in which the federal prosecutors in the Raleigh region of North Carolina “abused their duty to turn over evidence.”  There is an additional case that the Court has brought to light wherein, during a trial, prosecutors failed to correct a false statement made by a witness.

One judge for the panel wrote, ‘what we know is that we are repeatedly confronted with charges of discovery abuse by this office.  What we know is that our questions regarding this abuse remain unanswered. And what we know is that such conduct is unacceptable.”  The judge went on to say, “appropriate actions need to be taken to ensure that the serious errors detailed herein are not repeated.  Whatever it takes, this behavior must stop.”

Although it is unusual that the Federal Appeals Court would criticize the conduct of the prosecution, it does sometimes happen.  The Judges are shining the spotlight on them due to high-profile cases gaining attention in the media so often.  Corrective action will be taken once the Office of Professional Responsibility have investigated the claims.

The particular case which brought on the investigation involves a man who was convicted “in 2010 in a conspiracy to sell millions of dollars in fraudulent securities to nearly 200 investors” across the country, including to many churches.  In this matter, prosecutors failed to correct a false witness statement.  The witness testified that the government had not made him any promises in exchange for the testimony.  The judge for the federal appeals court stated that “because the government made those promises, it had a duty to correct the witness’ statement when he testified falsely that it had not made any promises.  The prosecution’s misstep wasn’t enough to force a new trial because the evidence against the defendant was too great.”

The judge concluded his opinion with concern regarding how the US Attorney’s office in that district is “unfazed by the fact that discovery abuses violate constitutional guarantees and misrepresentations erode faith that justice is achievable.”

When you are involved in a federal crime, it is wise to have the help, experience and knowledge of a federal appeal lawyer.  A good federal criminal appeal lawyer will research past precedent and existing legal cases to find grounds for your appeal.  This is necessary because an appeals court will not simply reverse the lower court’s decision for frivolous reasons.

If you or someone you know would like to file a federal criminal appeal in the Federal appeals court or state appeal, it will be in their best interests to speak with an experienced federal appeal lawyer.  Please call an appellate attorney at The Mace Firm for a free consultation today.

Long Sentence Handed Down After “Not Guilty” Verdict

Federal appeal lawyer discusses long sentence.  Earlier this month, William Trudeau Jr. and his federal appeal lawyer filed a federal appeal in the court of appeals for the 2nd Circuit.  His appeal is focusing on whether or not the lower court judge erred by miscalculating his prison sentence by 15 years.  According to his appeal, the judge used the Federal Sentencing Guidelines to add years to his prison term, in addition to completely disregarding the jury’s verdict at his sentencing hearing.

Three years ago in 2010, Trudeau was indicted by a Connecticut federal grand jury for being the leader in a mortgage fraud scheme.  Trudeau, before multiple loans went south on homes he built, made his living as a high-end real estate developer in Connecticut.  Trudeau’s indictment contained 9 counts:  1: conspiracy of aiding and abetting fraud, 2-8: mortgage scheme and 9: fraudulently obtained loan for $50,000.

The five additonal defendants, one of them being Trudeau’s wife, pleaded guilty while he waited for his court date.  Even though 4 of the defendants testified that Trudeau was, in fact, the one running the schemes, the jury found Trudeau “not guilty” of counts 2-8 and “guilty” of counts 1 and 9.  It is confusing how this jury concluded that he was guilty of conspiracy, but not guilty of the mortgage schemes.  Once Trudeau heard the verdict from the jury, he was hoping to receive a sentence of “time served” since he had been incarcerated since his bail was revoked.

That did not happen.  The prosecution for this case convinced the judge that, even though Trudeau was found not guilty on Counts 2-8, the charges should be used to calculate his prison sentence.  In doing so, Trudeau’s offense level increased, allowing for a longer sentence.  Finally, thinking he was going to be released, Trudeau was told that he would be serving over 15 years in prison.  According to the judge, “the Court finds by a preponderance of the evidence that the various other acts of Mr. Trudeau as alleged in the indictment as well as covered in some respects in the Presentence Report, were committed by him.”  Even more shocking, 3 of the additional defendants who pleaded guilty received sentences of less than 30 months in prison and the 2 others received probation.

Trudeau’s federal appeal lawyer wrote in his appeal that “… while a district judge is entitled to disagree with a jury’s decision, he or she cannot disregard it and sentence a defendant as if the verdict had been as the judge wished.”  If Trudeau wins his appeal, he will have to be re-sentenced.  His federal appeal lawyer is asking for a new district judge to be assigned to the matter if that happens.

Only a higher court can change an existing decision or hear an appeal. Under the law, you are entitled to one appeal. If the court does not find in your favor, you will have to petition the highest available court to hear your case.  When your case arises from federal law, you will have to appeal to the United States Supreme Court.

If you or someone you know would like to file a federal criminal appeal in the Federal appeals court or state appeal, it will be in their best interests to speak with an experienced federal appeal lawyer.  Please call an federal appeal lawyer at The Mace Firm for a free consultation today.

Federal Criminal Appeal Rejected for Kalvin Smith

Federal criminal appeal attorney discusses Kalvin Smith appeal.  In 1995, Jill Marker was managing a Silk Plant Forest store in Winston-Salem.  On the evening of December 9, 1995 that same year, she was randomly and brutally beaten, leaving her blind and with severe brain damage.  Marker now requires 24-hour care.  There were a few suspects in the case, including Marker’s husband.  Other suspects were named as Ken Lamoureux and Kalvin Smith.

Officers investigating the crime in 1995 felt that they had enough evidence to drop two of those suspects from the list, leaving Smith to be prosecuted for the crime.  Investigators knew that Lamoureux was a known “wife-beater,” and was seen at the scene of the beating an hour prior to the attack.  With Lamoureux and Marker’s husband out of sight of the detectives, Smith was the target.  Smith was known as a part-time painter with a petty criminal history.

2 years following the attack, Smith was convicted of assault with a deadly weapon with intent to kill inflicting serious injury.  He is scheduled to be released from prison in 2020.  However, Smith has maintained, since 1997, that he is the wrong man.

An investigative series and numerous other stories have raised serious questions about how this case was handled by police and the office of District Attorney Tom Keith. The Duke Law School Innocence Project had become involved in the matter and raised many good questions as well.  A report from the city counsel committee has revealed that it “does not have confidence in the investigation, the information in question or the result of the investigation.” The committe also said that it found no credible evidence that Smith was even at the scene of the crime.

Three years ago, Smith filed an appeal with the US District court asking for a new trial. This week, his appeal was denied by US District Judge Catherine Eagles.   In her ruling, Eagles said she dismissed Smith’s appeal because “he failed to comply with the one-year deadline that prisoners have for appealing their convictions in federal court.” She also rejected arguments that Smith’s attorneys made that Smith could not have found certain evidence backing up his claims prior to the deadline.  Smith is claiming that the prosecutors failed to disclose evidence which was favorable to him.  Smith also alleges that his conviction was tainted by false evidence and that Marker provided unreliable testimony.

A federal appeal lawyer for Smith said this week that he plans to file an appeal with the U.S. Court of Appeals for the 4th Circuit, which would have to agree to review Smith’s case.

Only a higher court can change an existing decision or hear an appeal. Under the law, you are entitled to one appeal. If the court does not find in your favor, you will have to petition the highest available court to hear your case.  When your case arises from federal law, you will have to appeal to the United States Supreme Court.

If you or someone you know would like to file a federal criminal appeal in the Federal appeals court or state appeal, it will be in their best interests to speak with an experienced federal criminal appeal lawyer.  Please call an appellate attorney at The Mace Firm for a free consultation today.

EA Under Fire in Appeals Court

The video game maker, EA, has been under scrutiny since legal action was filed against them in 2009 for unfairly using images of NCAA players.  Sam Keller, a college football quarterback, filed the suit and asked that all current and former players be represented by it.  Last week, a federal appeals court ruled that EA must face the claims and that NCAA athletes may sue EA for using their images without their permission.  By a 2-1 vote, the court said EA was not protected by free speech.

After the ruling, EA stated that it planned to appeal because they feel that the “college-based sports games were works of art, deserving freedom of expression protection.”  However, the federal appeals court has already stated that “the company can’t invoke the 1st Amendment to shield it from the players’ lawsuit.”

The federal court of appeals disagreed with EA further, saying that the “avatars” used for the basketball and football games were identical to the individual player.  The court also concluded that EA failed to create “works of art” out of the avatars and that the video games were “too realistic to be considered a new art form.”  EA did not include the names of players on the avatars.  Therefore, when EA used the defense that the games report statistics and biographies of the players it represented, it was immediately shot down.

One judge on the panel seemed to side with EA when she stated that the court’s decision “will jeopardize the rights of authors, movie makers and others to use real people in fictional settings.”  This decision will likely result in further legal action against EA from other former college athletes whose likenesses were used in the games without compensation.  In addition to this, NCAA has decided not to renew their contract with the video game maker.

Federal appeal lawyer discusses EA lawsuit and appeal.  There is often a lot of pressure placed an appeal attorney, because for many clients, there is only one single chance of appeal. Only a higher court can change an existing decision or listen to an appeal. Under the law, you are entitled to one appeal. If the court does not find in your favor, you will have to petition the highest available court to hear your case.  When your case arises from federal law, you will have to appeal to the United States Supreme Court.

If you or someone you know would like to file a federal criminal appeal in the Federal appeals court or state appeal, it will be in their best interests to speak with an experienced federal appeal lawyer.  Please call an appellate attorney at The Mace Firm for a free consultation today.