Wednesday, May 24, 2006

Post-Argument Submissions

United States v. Dennis S. Goodwin, No. 05-1809 (May 24, 2006): Have you ever wanted to make a response to the appellee's oral argument, and you had no time left for rebuttal? Sometimes the Court will grant the appellant an extra minute or so, but often this does not happen. This case suggests that the Court may sometimes be receptive to a post-argument submission.

The opinion deals with a Terry stop. In the course of denying relief, the Court mentions that there was some question about the length of time between seizing a piece of luggage and submitting it to the nose of a drug-sniffing dog. The Court notes that the government attorney had estimated the time at 30 minutes, but it could find nothing in the record to support government counsel's assertion. It further notes that the estimate was not contradicted. Then, most significantly, the Court states that the defense attorney had no rebuttal time, "though he could have asked leave to file a supplemental brief or memo." As it turned out, the Court concluded that the exact time was not material.

By holding out this option for appellant's counsel, the Court did not introduce any new procedural device. Yet the remark is a good reminder that in some cases counsel may want to make use of this device. Note, however, the exact context in which the remark was made: the Court had asked a question about the record, and nothing in the briefs seemed to point to the answer. The Court was not inviting counsel as a matter of course to ask leave to file the rebuttal they wish they had made had they not run out of time. Of course, if there are new authorities that arise after oral argument, the Circuit Rule 28(j) letter is available.