If appellate briefs are a war of words, it would seem that the lawyers for Vincent Fumo, the imprisoned former Pennsylvania state senator, are asking for a little arms control.
Prosecutors recently filed a 281-page opening brief in an appeal that challenges the 55-month sentence imposed on Fumo and the one-year term imposed on Fumo's longtime aide, Ruth Arnao, but defense lawyers are now urging the 3rd U.S. Circuit Court of Appeals to reject the brief, arguing that it is simply too long and sets the stage for the court and the lawyers to be swamped in paper.
"At 53,453 words, the government's proposed brief is nearly four times the 14,000 word limit for an opening brief and, standing alone, exceeds the total number of words contemplated for all four briefs combined in cases involving a cross-appeal (51,500)," the defense lawyers wrote.
"More to the point, if briefing were to continue at this pace with briefs of proportionate length filed by all parties, the court will be faced with nearly 1,500 pages of briefs totaling almost 300,000 words -- a sum nearly half again as long as Moby-Dick," the defense team wrote in a brief filed on Monday.
But in a quick response brief also filed on Monday, the prosecutors argued that the complexity of the appeal called for the government to file a hefty brief and that the defense move to have it rejected "must be viewed as entirely opportunistic, aiming to thwart the government's ability to thoroughly describe the numerous sentencing errors committed in these proceedings."
The government "recognizes that its brief is of an exceptional length," the prosecutors argue, "but after careful consideration and extensive editing efforts, respectfully asks permission to file it."
Fumo's lawyers, Peter Goldberger of Ardmore, Pa., and Samuel Buffone of Washington, D.C., were joined in the brief by Arnao's lawyer, Patrick Egan of Fox Rothschild. The government's response was filed by U.S. Attorney Zane David Memeger and Assistant U.S. Attorneys Robert A. Zauzmer and John J. Pease.
The prosecutors filed a motion last week, along with the brief, that asked permission to exceed the court's limit on the number of words.
Such motions are routinely granted, sometimes by the court clerk, and rarely elicit any response from the other side.
But Fumo's and Arnao's lawyers say they were compelled to respond because the government's brief is nearly four times the word limit outlined in the court's rules.
"Briefing of this length places an undue burden on this court and opposing counsel and will only serve to slow the administration of justice in this case," the defense lawyers wrote.
"The government's proposed brief is often repetitive and contains numerous gratuitous observations by government counsel, who also served as trial counsel, which are wholly unnecessary to the development of their arguments. Its lengthy factual recitations are minutely detailed and often argumentative," the defense brief said.
According to the defense brief, the rules of appellate procedure call for a limit of 14,000 words for the first-step brief in a cross-appeal; followed by a second-step brief limited to 16,500 words; followed by a response and reply brief from the appellant limited to 14,000 words at the third step; and finally a cross-appellant's reply limited to 7,000 words.
The government's opening brief, at 53,453 words, "is 3.82 times the applicable word limit," the defense notes.
If all of the briefs are similarly lengthy, the defense lawyers say, the court will be facing a stack of briefs totaling more than 1,400 pages and nearly 300,000 words.
But the prosecutors urged the 3rd Circuit to be suspicious of the defense lawyers' motives.
The defendants, they argue, "seek to deprive the court of detailed guidance to the voluminous record in this case, in the likely hope that the court, without the assistance of trial and appellate counsel, will not fully assess the relevant information found in over 10,000 pages of trial and sentencing transcripts."
The government's appeal, they note, includes claims of 11 sentencing errors made by U.S. District Judge Ronald L. Buckwalter, and almost every one hinges on a "dense factual record."
"This would be a much simpler case if appellees Fumo and Arnao simply stole $4 million all at once, but they did not," Zauzmer and Pease wrote.
Instead, the prosecutors say, "these appeals involve criminal acts of unusual duration and depth, as well as an unusual number and variety of sentencing errors, producing a voluminous record which must be described and considered."
For example, they noted, Fumo "fraudulently used the services of dozens of Senate employees, the particular (and varying) circumstances of eight of whom are directly relevant to the government's assertion that the district court committed clear error in its loss calculation."
And Fumo and Arnao "did not steal from Citizens Alliance in just one manner, or only on a handful of occasions," the prosecutors wrote, "but on a daily basis for years on end, in thousands of transactions regarding a myriad variety of goods and services."
The briefing on appeal was necessarily lengthy, the prosecutors say, because "an explanation of these and many other issues requires a careful detailing of the trial evidence (or will require the Court of Appeals to proceed into the record on its own)."
