Appellate Procedure,  Waiver of Issues

A Double Standard . . . of Review

An appropriate follow-up to last week’s post that discussed the pitfalls of the standard of review is United States v. Vega, case no. 07-50245 (9th Cir. Sept. 24, 2008). It illustrates a double standard that one wouldn’t ordinarily expect.

In the district court, Vega challenged two conditions on the supervised release portion of his sentence.  On appeal, however, he argued that a third condition of his supervised release was also error.

You might think he’d be out of luck entirely on that third condition, the general rule being that an argument cannot be made for the first time on appeal  But he’s not.

Though Vega did not challenge the third condition in the district court, the effect of that failure is not to foreclose his argument in the court of appeals, but merely to subject his claim to a standard of review more difficult for him to overcome.  That is, for the two conditions Vega did challenge in the district court, the court of appeals evaluates the district court’s imposition of the conditions under an abuse of discretion standard, while requiring “plain error” for the condition left unchallenged in the district court.

There’s a larger lesson here.  Notwithstanding the general rule that arguments raised for the first time on appeal will not be entertained by the appellate court, I think it pays for an appellant to be aggressive about raising such arguments — good ones, at least — wherever the rules suggest a way to get them in.  Don’t dismiss arguments out of hand just because they were not raised (or perhaps raised with less specificity) in the trial court.  Carefully look at the case law, and if there’s an argument to be made that the court should consider your “new” argument, go for it.