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It’s not uncommon for an appellate court to remand a case and order that a trial judge cross a T or dot an I, but in a pair of recent decisions from the 3rd U.S. Circuit Court of Appeals, the appellate judges took their finger-wagging one step further, faulting the lawyers for failing to speak up at the time of the lower court’s mistake. By catching an error at the time it occurs, the judges said, lawyers can easily avoid an unnecessary round of appeals. However, the two opinions take starkly different tones in their admonitions to lawyers — even though both decisions were rendered by the same three-judge panel: Circuit Judges Edward R. Becker, Morton I. Greenberg and Thomas L. Ambro. In Caprio v. Bell Atlantic Sickness and Accident Plan, decided on July 8, Greenberg appeared to limit his lecture to lawyers to a mere suggestion, saying, “We can understand why parties might be wary of advising a district court of its oversight, and we do not require that they do so. Yet we note that our suggestion is consistent with requirements in other situations that parties bring procedural requirements to a court’s attention if it should overlook them.” But in United States v. D’Angelico, decided July 19, Becker took a much harsher tone, saying, “Our frustration is not limited to the courts, for the prosecutor and defense counsel also bear responsibility.” Becker concluded that when a trial judge fails to clarify the basis for refusing to grant a downward departure at a sentencing hearing, there is no justification for a lawyer’s failure to remind the court to do so. “Emphatically, this is counsel’s responsibility for it is a matter of preserving the record for appeal (or, from the government’s point of view, insulating the judgment from appeal),” Becker wrote. “Counsels’ failures engender needless appeals and waste of time and funds. We expect counsel to heed this injunction,” Becker wrote. Both decisions also faulted the trial judges for failing to articulate the basis for a ruling. In his opening paragraphs in the D’Angelico decision, Becker said the appeal “calls upon us once again to assess whether a guidelines sentence must be vacated and the matter remanded to the district court because the parties have not made a clear record on whether the district court’s denial of the downward departure … was based on legal or discretionary grounds.” The distinction is an important one, Becker said, because “if the refusal was on legal grounds, we have jurisdiction; if it was discretionary, we do not.” Becker complained that “the issue keeps recurring” despite the 3rd Circuit’s decision a decade ago in United States v. Mummert that instructed trial judges to “clearly note” the basis for their ruling whenever they refuse to grant a downward departure motion. “We are chagrined,” Becker wrote, “that the district courts, which could so easily make crystal clear whether their refusal to depart is because they do not believe that they have the authority to do so or, conversely, whether they understand their authority to depart and exercise their discretion not to, so often fail to take that opportunity.” Becker found that U.S. District Judge Michael M. Baylson had committed such an error when he rejected defendant Anthony D’Angelico’s claim that he was entitled to a downward departure due to his mental retardation. D’Angelico had pleaded guilty to a single charge of making a false statement to a firearms dealer. According to court papers, he claimed on a form that he had no prior convictions, when, in fact, he had nine prior convictions — including four for aggravated assault. When the gun dealer told him that his application had been rejected in an “instant check” with the Pennsylvania state police, D’Angelico asked what he could do to challenge the decision. He later filled out an appeal form and sent it to the state police. At sentencing, D’Angelico’s lawyer, Assistant Federal Defender Mark Wilson, urged Baylson to grant a downward departure on the grounds that D’Angelico has an IQ in the range of 75 to 81 and reads at a sixth-grade level. In his brief, Wilson said the case was “troubling” because it appeared that D’Angelico is “borderline mentally retarded” and therefore did not understand the forms he filled out, but was nonetheless facing a sentence in the range of 77 to 96 months in prison. Baylson denied the request, saying: “I do not find that there are grounds for a downward departure, as you have requested, and I’m going to deny that. But, I will sentence your client to the lower end of the guideline range … in the hopes that he’s going to have to spend about six years in prison.” On appeal, Assistant Federal Defender Elaine DeMasse argued that Baylson’s remarks in rejecting the departure motion were “ambiguous.” “It equally supports both a conclusion that the refusal to depart was based on a belief that one or more of the express limitations on the court’s authority to depart did exist in this case, and a conclusion that the refusal resulted from the exercise of discretion,” DeMasse wrote. Becker found that DeMasse’s argument was “very strong.” But Assistant U.S. Attorneys Robert Zauzmer and Francis C. Barbieri Jr. argued that the appeal should be rejected because the government never disputed that Baylson had the authority to grant the departure. At the hearing, they noted, when Baylson asked for the government’s position, Barbieri said he “would not object to some minimum departure in light of the defendant’s diminished capacity and the fact that his mental capacity played some role in the offense here.” Becker sided with the government, noting that the Mummert decision held that when the government concedes the plausibility of the downward departure, “it seems quite likely that the district court’s refusal to depart … was discretionary.” Although Baylson’s remarks were not as explicit as the appellate court would prefer, Becker said, the court was “satisfied that the able district judge in this case understood his authority to depart and exercised his discretion not to do so.” As a result, Becker said, the court had no appellate jurisdiction and the appeal was dismissed. THE CAPRIO CASE Frank J. Caprio, a former employee of Bell Atlantic Co. and its successor, Verizon, filed an ERISA suit after he was denied disability benefits. The suit named as defendants the Bell Atlantic Sickness and Accident Plan, Verizon and CORE Inc., a company that Caprio alleged to have administrative and fiduciary responsibilities under the plan by making determinations about claimants’ eligibility for payments. The suit said the Bell Atlantic plan makes a distinction between disabilities attributable to sickness and those attributable to accidents, and it provides more generous benefits for accident victims. Defense lawyers moved for summary judgment, but U.S. District Judge R. Barclay Surrick at first denied their request. Surrick found that it was unclear whether he should simply apply the U.S. Supreme Court’s test announced in Firestone Tire & Rubber Co. v. Bruch or the 3rd Circuit’s decision in Pinto v. Reliance Standard Life Insurance Co., which calls for courts to subject the decision to a “heightened scrutiny” in cases where the decision-maker suffers from a conflict of interest due to a dual role as both funder and administrator of an ERISA plan. Although defense lawyers insisted that CORE suffered from no conflict of interest, Surrick concluded that Caprio’s lawyers were entitled to answers to interrogatories on that point. After a round of discovery, defense lawyers again moved for summary judgment and Surrick granted the motion. Now the 3rd Circuit has ruled that Surrick’s decision is impossible to review on appeal because he never articulated the basis for his order. Greenberg found that Surrick wrote no opinion when he made his final decision, but instead “simply entered orders granting [the defense] motion, denying Caprio’s motion, and granting a judgment in favor of the [defendants].” By doing so, Greenberg said, Surrick failed to make clear whether he was applying the Firestone test or the Pinto test and made no findings about whether CORE had abused its discretion in rejecting Caprio’s appeals. Such a ruling, Greenberg said, violates the 3rd Circuit’s 1990 decision in Vadino v. A. Valey Engineers, which instructed trial judges to “accompany grants of summary judgment … with an explanation sufficient to permit the parties and this court to understand the legal premise for the court’s order.” As a result, Greenberg concluded that the case must be remanded to Surrick to allow him to supply an explanation for his decision. “The fact is that we are not certain whether the district court granted summary judgment for appellees through the application of Firestone with or without our refinement of that case in Pinto,” Greenberg wrote. “Moreover, whatever standard the court followed, we do not know the reasoning that led it to grant the appellees’ motion for summary judgment.” Greenberg said he regretted that “the consequence of our disposition is to put the parties to additional expense which they fairly may attribute to the district court’s failure to conform to our directions in Vadino.” But Greenberg also suggested that the lawyers could have avoided an unnecessary round of litigation in the 3rd Circuit by simply pointing out the trial court’s error. “In future cases in which district courts overlook the procedure we set forth in Vadino, the parties should not hesitate to bring that case to the court’s attention,” Greenberg wrote.

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