Two potential Third Circuit cert grants — Georgiou and Erwin

I posted yesterday about the two Third Circuit cases (Merrill Lynch and Heffernan) the Supreme Court has already agreed to review this term.

Two other Third Circuit cases are listed on Scotusblog’s “petitions we’re watching” page, and both are highly interesting:

  • Georgiou v. US — Scotusblog case page link here — distributed for conference Oct. 30. I posted about the cert petition here.
  • Erwin v. US — Scotusblog case page link here — distributed for conference Oct. 30. I posted about Erwin many times (“my runaway winner for Worst Decision of 2014,” etc.), most recently here.  Erwin’s counsel of record for the cert petition is Supreme Court vet Kevin Russell of Goldstein & Russell. The government got three extensions before answering. Erwin replied that the government’s response “is as radical and unfounded as the decision itself.”

A defense practice tip:  unless and until cert is granted and Erwin vacated, plea counsel would be wise to note this passage from the government’s answer (cites omitted):

Defendants can reduce the likelihood
that they will face a remand for resentencing, if they
choose to appeal despite an appeal waiver, by negotiating
provisions in plea or cooperation agreements
limiting the circumstances in which the government
may seek such a remedy. For instance, since the
decision below, defendants in the Eastern District of
Pennsylvania have pleaded guilty pursuant to a plea
agreement providing that “the filing and pursuit of an
appeal constitutes a breach only if a court determines
that the appeal does not present an issue that a reasonable
judge may conclude is permitted by an exception
to the waiver stated in the preceding paragraph
or constitutes a ‘miscarriage of justice’ as that term is
defined in applicable law.”

Such provisions protect a defendant’s ability to assert
reasonable arguments that his claims on appeal
are not barred by the waiver or that the waiver should
not be enforced.

Also of note, the government argues that mere dismissal remains the Third Circuit’s “ordinary” remedy and that no subsequent Third Circuit opinion has imposed Erwin‘s resentencing penalty.

I’ll be on the edge of my seat for the Oct. 30 conference results.