Summary of the Argument 2

Part of an occasional series. As part of my deliberate practice as an appellate lawyer, I track down the latest and greatest briefs from the more-than-famous appellate lawyers around the state and try to improve on their product.

This paragraph is part of a Summary of the Argument of a brief that was filed in a federal court of appeals:

In Flores-Figueroa v. United States, No. 08-108, 556 U.S. ___ (May 4, 2009), the Supreme Court concluded that 18 U.S.C. 1028A(a)(1), the statute forming the basis for Appellant's convictions on counts 2, 4, and 5 requires the government to prove that he knew that the "means of identification" he unlawfully used, belonged to "another person." Because the government failed to prove beyond a reasonable doubt that Appellant knew that the means of identification that he allegedly used belonged to another person, the district court erred in denying his motion for judgments of acquittal on counts 2, 4, and 5.

My revision:

The district court erred in denying Smith's motions for acquittal on counts 2, 4, and 5. Under Flores-Figuerora, the government was required to prove that Smith knew that the "means of identification" he allegedly used to defraud [the bank] actually belonged to another person. Since the government failed to produce evidence beyond a reasonable doubt on this issue, Smith's convictions on these counts should be reversed.

Here is the appellate advocate's second paragraph:

The district court erred in admitting Appellant's 1989 prior credit card conviction over his objection. Because Appellant's prior conviction was insufficiently similar to the charged offense, it lacked the requisite degree of relevance to be admissible under Rule 404(b). And, because the prior conviction was almost two decades old at the time of this trial, it was too remote in time to ensure that its probative value was not substantively outweighed by it prejudicial effect. The erroneous admission of the prior conviction was not harmless given the government's emphasis on it during final argument and because evidence of Appellant's guilt was not overwhelming.

My revision:

The trial court erred in admitting into evidence Smith's 1989 credit card conviction. The conviction was too remote in time to be relevant to this case and, given the government's emphasis of the charge during final argument, its admission can't be considered harmless.

Although both of my revisions are much shorter, they contain the same information as the original paragraphs and provide the needed oomph to spur the appellate court into action.

UncategorizedSmythe PC