January 17, 2008
Yet another Brief in the KPMG Case
We have been collecting the briefs in the KPMG related case - Stein, et. al. see here, here, and here, and now have a new one to add to the collection. The brief of Appellee Ritchee is one of the longer separate briefs, although like the others it joins the main brief on many of the arguments. This brief focuses on the appellee's "Sixth Amendment right to be represented by counsel of his choice." Appellee states that "[c]ontrary to the government’s argument, the validity of the district court’s ruling does not turn on whether the government 'coerced' KPMG’s decision. The district court found that the USAO deliberately caused the deprivation of Ritchie’s constitutional right."
This brief also refutes the government use of forfeiture literature to support its position. The appellee response here is:
"Finally, the government’s reliance on Supreme Court forfeiture decisions for the proposition that the USAO may lawfully block funding that would otherwise be available to the defense is misplaced. The forfeiture cases are inapposite. Those decisions hold only that a criminal defendant has no Sixth Amendment right to use forfeitable assets — that is, property that belongs to the government — to fund his defense. The forfeiture cases do not hold that the government may obstruct a defendant’s access to lawfully available resources; and other cases make clear that such interference with the freedom to retain counsel of one’s choice violates the Sixth Amendment."
But perhaps the most ironic aspect of the brief is found near the beginning when the appellee argues waiver by the government. One so often finds the government claiming that defense counsel has waived an issue on appeal by failing to properly preserve the issue or properly present it in the opening brief. With the tables turned in this case - and the government being on the defensive - it will be fascinating to see how the government handles a claim of waiver when they are in the shoes of an appellant, a position the government seldom holds on appeal. The waiver claim is:
"The government does not directly challenge the district court’s finding that the USAO violated Ritchie’s Sixth Amendment rights by depriving him of the ability to proceed with counsel of his choice. Indeed, the government’s brief scarcely mentions that ground for dismissal. Issues not sufficiently argued in an appellant’s opening brief are deemed waived."
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