3rd Circuit Judge Orders Feds to Trim Big Brief in Fumo Case

Shannon P. Duffy

The Legal Intelligencer

Federal prosecutors are demanding a longer prison sentence for former Pennsylvania state Sen. Vincent Fumo, but first they're going to have to make their own appellate brief considerably shorter.

In a quick victory for the Fumo defense team, the 3rd U.S. Circuit Court of Appeals has ordered prosecutors to slash their brief by about 20 percent, reducing it from more than 53,000 words to no more than 42,500.

The order came from U.S. Circuit Judge Thomas Vanaskie, one of the 3rd Circuit's newest judges, and says the government's new, leaner brief is due by Aug. 4.

That means the due date for the defense appellate briefs from Fumo and his co-defendant, Ruth Arnao, will now be sometime in early October -- 60 days after the prosecutors' brief is filed.

In the appeal, prosecutors are arguing that U.S. District Judge Ronald L. Buckwalter was too lenient when he ignored guidelines that called for a prison term of more than 21 years for Fumo and instead imposed a 55-month prison term.

Fumo was convicted of 137 counts of fraud and obstruction of justice for misusing millions in funds from a charity he created and stealing the services of Senate staffers "to support a lavish lifestyle and illegally amass political power," the prosecutors argue.

The appeal also says Buckwalter was too lenient in sentencing Arnao -- a longtime Fumo aide who was installed as the executive director of the charity -- to just one year in prison.

Soon after the prosecutors filed their appellate brief, the lawyers for Fumo and Arnao objected to its length, arguing that it was simply too long and set the stage for the court and the lawyers to be swamped in paper.

Court rules ordinarily impose a 14,000 word limit for the opening brief and the government's first version, filed on July 9, was about 3.8 times longer. The new and shorter version is limited to about three times the standard limit.

To put things in perspective, the entire stack of briefs in the Fumo appeal would add up to about the length of Kurt Vonnegut's novel "Slaughterhouse-Five" if the lawyers stayed within the standard limits.

If the government had been allowed to stick with the first version of its brief, which weighed in at 281 pages -- and if all subsequent briefs had exceeded the standard limits by the same percentage -- the stack would look more like Fyodor Dostoyevsky's "Crime and Punishment."

But now that Vanaskie has ordered a 20 percent reduction -- and assuming that all of the briefs weigh in at about three times the ordinary limit -- the appellate judges will be facing a reading assignment more along the lines of John Steinbeck's "The Grapes of Wrath."

Still, the briefs are all tied directly to a massive appendix, including the transcripts from a four-month trial and two days of sentencing, that weighs in at more than 5,800 pages.

One of Fumo's lawyers, Peter Goldberger, said he was "gratified" that Vanaskie agreed with the defense position and ordered a shorter brief.

The defense team, Goldberger said, always recognized that the prosecutors would need to file a brief that exceeded the ordinary word limits, but felt that the government's first version had "excess verbiage" and had "plenty of room to cut."

Goldberger also said that he considers the prosecutors -- Assistant U.S. Attorney Robert Zauzmer and John Pease -- to be "terrific lawyers," and predicted that their brief "will only be improved" when it is edited down to the court-imposed limit.

Zauzmer declined to be interviewed about Vanaskie's order. But the prosecutors had argued in court papers that their brief was already edited extensively and that the complexity of the appeal called for the government to file a hefty brief.

The prosecutors argued that the defense move to have the government's brief 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."

Under appellate court rules, the briefs for such appeals -- where the government is challenging the sentence and the defendants, in a cross-appeal, are challenging their convictions -- are filed in four steps.

The Step 1 brief from the government focuses only on its appeal; the Step 2 brief from the defense must serve as both a response to the government's brief and as the initial brief on the cross-appeal issues; the Step 3 brief is the government's chance to reply to the defense response, as well as to respond to the cross-appeal; and the defense gets the final word in the Step 4 brief that serves only as a reply to the government's arguments on the cross-appeal.

The standard word count limits on the briefs are: 14,000 words for the Step 1 brief; 16,500 words for the Step 2 brief; 14,000 words again for Step 3; and 7,000 words for Step 4.

In complex appeals, lawyers routinely file longer briefs and typically seek permission to exceed the word count by filing a motion at the same time that the oversized brief is filed.

An informal survey of several lawyers who specialize in appeals showed that none were surprised that the Fumo prosecutors had been ordered to edit their brief, and that most believed the new, shorter version will be a better piece of legal writing.

But the surveyed lawyers also said the Fumo defense team must now take its own advice and draft a brief that cannot be criticized for length. Goldberger, responding for the defense team, said that although he anticipates filing a brief that exceeds the standard limits, it will not be three times the limit and likely would be closer to twice the limit or even less.