On December 6, 2019, the Second Circuit (Calabresi, Pooler, Park) issued a published per curiam decision in United States v. Kosic (Nunez), concerning the defendant-appellant’s motion for in forma pauperis (“IFP”) status in his direct criminal appeal.  The appellant’s motion arose from a district court order denying his IFP motion based on a finding that the appeal would be frivolous pursuant to 28 U.S.C. §1915.  In its published decision, the Second Circuit granted the motion and held that it is proper to consider only the defendant’s financial eligibility—and not the merits—when deciding motions for IFP status and appointment of counsel under the Criminal Justice Act (“CJA”) in a direct criminal appeal.

As the Court explained, a litigant seeking IFP status on appeal generally must first seek a ruling in the district court.[1] If the district court denies the motion and finds that an appeal cannot be taken in good faith, then the defendant may seek an IFP determination from the appellate court.  When the appellate court reviews such motions, it applies different standards depending on whether the case is civil or criminal.  In the civil context, the Court considers the merits of an appeal and will deny the motion and dismiss the appeal if it finds the appeal is frivolous.  By contrast, in criminal cases, the Court applies the standard set forth in the CJA, which provides that a criminal defendant shall be provided with counsel if they are “financially unable to obtain” a lawyer.  As the Court observed, appointment of counsel under the CJA does not include a consideration of the merits of the appeal. 

The Court noted that it had been its “practice” to grant IFP status and CJA counsel to criminal defendants on direct appeal based solely on a determination of the defendant’s financial eligibility under the CJA.  In its decision, however, the Court reduced that practice to a formal holding that aligned with the law of other circuits.  The Court further opined that its holding followed well-established precedent regarding the appellate rights of criminal defendants.

Analysis

The Court arrived at a sensible result in Kosic, cementing a common-sense practice as an official holding of the Court.  As the Court remarked, the Supreme Court has already established the well-known Anders framework for determining whether a direct criminal appeal is frivolous.  That framework, which allows the court to examine the merits of an appeal only after defense counsel has completed a “conscientious” examination of the record and submitted a brief discussing any arguably meritorious appellate issues, protects the rights of all criminal defendants to have a zealous appellate advocate who conducts a thorough review of the record.  As the Court opined, “[t]hat right would be vitiated if we could dismiss an indigent defendant’s appeal as frivolous on the basis of an IFP motion before that [Anders] review has occurred.”    It is not clear why the district court believed it was appropriate to deny appointed counsel based on an assessment of the merits of the appeal, given that there is a right to counsel on direct appeal.