1 The Honorable Ri chard M. Berman, of the Unit ed Stat es Dist

rict Court for

the Southern Dist

rict of New Yo rk, sittin g by des igna tion. 1 06-5136 -cr U.S.A. v. Sant

iago UNITED STATE S COURT OF APPEALS FOR THE S ECOND CIRCUI T August T erm, 2006 (Submitt ed: June 29,

2007 Decided: Ju ly 18, 2007) Docket No. 0 6-5136-cr U NIT ED S TATES OF A MERICA ,

Appellee ,

-v.- L UIS S ANTIAGO ,

Defendant-Appellant, L OUIS H ERRERA , E ARL R EYES , W AYLA ND R. G IBBS , Defendants. Before: C

ABRANES , R

AGGI , Circuit Judg

es, and B ERMAN , 1 District Judge

. In an appeal from a criminal conviction in the United States District Court for the Southern Distric t of New Yor

k (George B . Daniels, Judge ), court- appointed d efense coun sel moves to withdr aw, pursuant to Anders v. California , 386 U.S. 738(1967), on

the ground

that there is no non- frivolou s basis for appeal. Before t

his Court will rule on

counsel’smotion, co unsel is o rdered to take reasonable actions to ensure that the defendant, who may be illiterate, receives adequate oral notic e of (1) the substan ce of the Anders

brief, (2) the defendant’s right to proceed pro se or seek app ointment o f new counsel, an d (3) the li

kely consequ ence of a fail

ure by the d efendant t

o respond to the Anders

motion. Counsel’s motion to withdraw is denied, without prejudice to renewal upon the filing of a declaration showing reasonable efforts to convey the required notice orally to the defendant.2 Ellyn I. Ban k, New York, N

Y, for DefendantAppellant

. Alexander J. Willscher, Assist ant United S tates Attorney, (Michael J . Garcia, Uni

ted States Attorney, of counsel

,) United S tates Att

orney’s Office fo r the Sout

hern Dist rict of Ne w York, New York, NY, for Appellee. J OSÉ A. C ABRANES , Circuit Judge : In United State

s v. Leyba , 379 F.3d 53 (2d Cir. 200 4), we held t hat when coun sel repre senting a non-English speaker files a motion to withdraw as counsel on appeal pursuant to Anders v. California , 386 U.S. 738 (1967), he must take reasonable action to ensure that his client received notice of the motion in a

language the cl

ient under stands. United State s v. Leyba 379 F.3d a t 55-56. Tod ay we a ddress a case in which

counsel r epresent s a defendan t who may be il

literate. Defendant-appellant Luis Santiago (“defendant” or “Santiago”) appeal s from a judgment of conviction

entered in t

he United St

ates Dist rict Court for the So uthern Di strict o f New York ( George B. Daniels , Judge

), followi ng a plea of gu

ilty to (1) conspirac

y to commit

robbery, (

2) robber y, and (3) brandish ing a firear

m during t

he robber y. In the plea agreement,

the defenda

nt agreed to

waive his right to file an appeal if he was sentenced within or below the stipulated guidelines range of 135 a nd 147 months. The District Court imposed a sentence of 51 months for counts one and two, each to be served concurrently, and the District Court also imposed the mandatory 84-month term of impriso nment for

count thr ee to run co nsecutivel

y to countsone and two, f or a total s entence of 1 35 months. The Dist

rict Court further imposed a p eriod of f

ive years of

supervis ed release, a

nd a special

assess ment of $30 0. Santiago, who has filed a timely no tice of appea l, was initi ally servin g his sent ence at the Rikers

Island Cor

rectional F acility in New

York City, wh

ich servesprimaril

y as a pre-t

rial detention center. Th e record do es not rev eal where Sant

iago is now i

mprison ed. His cou

nsel in proceedings in the District Court, Ellyn I. Bank (“Bank”), has moved to be relieved pursuant to Anders ,3

and the Gove rnment has

moved for

summary af

firmance. Under Anders , counsel may ask the Court for permission to withdraw from representing the defendant i

n an appeal if “ counsel isconvinced, af ter consc ientious investigat

ion, that t he appeal is frivolou s.” 386 U.S. at 741 (quo ting Ellis v. United States , 356 U.S . 674, 67 5 (1958)). Counsel’ s request “must . . . be accompanied by a brief referring to anything in the record that might arguably support the appeal,” id. at 744, and by an affidavit indicating that the client wa s furnished a copy of the motion and accompanying b rief, as we ll as “a lett

er infor ming the cli ent that he o r she has the right to file a pro

se brief,” United State

s v. Arro us , 320 F.3d 35 5, 358 (2d Cir . 2003). Ou r Court’s instruc tions to

counsel entitled How to Appeal Your Criminal Case also specifies the notice to be given to the client:

An attorney filing an Anders brief must also submit an affidavit or affirmation to the Court stating that the client has been informed: (1) That a brief pursuant to Anders . . . has been filed. (2) That the filing of an Anders brief will probably result in the dismissal of the appeal and affirmance of the conviction. (3) That the client may request assistance of other counsel or submit pro se response pa pers. United Stat

es Court o f Appeals f

or the Second Circuit, How to Appeal Your Criminal Case (2004); see Leyba , 379 F.3d at

54-55. In this case, on April 9, 2007, Bank filed, along with her Anders motion and brief, a declaration (1) that s he had serv

ed the defen dant a copy of the Anders

motion and

brief “by m ailing copies

of said documents ” to him at t

he Anna M. Kr

oss Center

on Rikers I sland; and (

2) that th e defendant

had been “informe d” that the

brief was f

iled, that t he motion wi

ll most li kely resul t in the dis missal of

his appeal, and that the defendant may request assistance of other counsel or submit pro se response papers. She attached to her declaration a copy of the letter she sent to the defendant which conveye d the documents noted above. For convenience we will refer to the various documents that must be2 Although the Pre- Sentenci ng Report a ppears t o indi cate t hat the defendant

is i ll ite rate,there is s ome evidence in the rec ord th at the d efend ant can read and und ersta nd En glish. See, e.g., App . At 84 (“I [ i.e. , Judge Dani els] find t he test imony credi ble that the defendant not onl y looked at

the s tat ement and read i t to himsel f, but read it back to t

he agents out l oud.”) 4 conveyed to a defendant when an Anders motion iscontemplat

ed as “the Anders

notice docu

ments.” It is uncle ar from Bank ’s decla ration wh ether she si mply mai led the le tter to San tiago or a lso had some or

al communicat

ion with him . In any event , the defend ant has not

responde d to the Anders motion by submitting to the Court any comments of his own. According to the Pre-Sentencing Report submitt ed to the Di strict Co urt by the United Stat

es Probat ion Offic e, the defen dant is ill iterate, although he understands both English and Spanish. On this record, it is possible that if the defendant received th e Anders notice documents he would not have understood them. 2 We beli eve that in these circumst ances, the n otice accord ed to the def endant may hav

e been inadequate. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded fi

nality is n otice reas onably calculat ed, under al

l the circum stances, t

o apprise i nterest ed parties o f the penden cy of the acti on and affo rd them an o pportuni ty to pres ent their o bjections .” Mullane v. Ce

ntral Hanov

er Bank & Tr

ust, Co. 339 U.S. 306, 314 (1950). In United State s v. Leyba , we held that where c ounsel kno

ws that th e client doesnot speak En glish, cou nsel mus t “[a]t a min

imum, . . . make reasonable effor

ts to cont act the defendant in per son or by t elephone, wit

h the aid of

an interprete r if necessa ry, to exp lain to th e defenda nt the substa nce of cou nsel’s Anders brief, the defendant’ s right t

o oppose it

or seek new c ounsel, and

the likeliho od that th e brief cou ld result in dismiss al of the app eal.” 379 F.3 d at 56. We held in that cas e that writ

ten notice,

“in a language underst ood by the cl

ient, would

also suf fice.” Id. In other circumstances, where a defendant is literate in English and can comprehend the informat ion conveyed t

o him by an att

orney who s eeks permi ssion of the Court t

o withdraw u

nder Anders , the Anders

notice documents conveyed by Bank would meet the basic requirement of notice to5

clients. B ut we are here present ed with a defe ndant who ma y not be lite rate in Engli sh or in h is native Spanish lan

guage. In this c ase, where t

he defendant

may be illiter

ate, the Anders

notice documents alone will not suffice without some additional effort to ensure that their contents are communicated to the defendant orally. We cann ot confide ntly assu me that if t

he defendant

receives t he Anders notice documents he will necessarily be able to find someone to read them to him. At a minimum, when counsel knows or has reaso n to believe t

hat the clien

t may be illit

erate, she must make s ome reasonable effor t to contact the defenda

nt in pers on to explai

n the conten

ts of th e Anders

notice docu

ments or arrange to

have someone read them to him. The effort to accomplish notice must be a reasonable one and reasonableness will always depend on the circumstances presented. In some cases, a defendant may be incarcerat ed far from his att

orney’s o ffice, or

may even be livi

ng abroad. Wh ere the def endant is i n custody at a distant f

acility, coun sel shoul

d make a reaso nable effor

t to assu re that so meone is avai

lable, including p erhaps an em

ployee of th e correcti onal facilit y, to read alo ud the Anders notice documents to the defendant in a language he understands. Where the defendant is living abroad, we may have no alternative other than to indulge a presumption that the defendant, upon receipt of a letter from counsel, r easonably wil

l seek to hav

e the Anders notice documents read aloud to him. CONCLUSION On the record before us, we cannot determine whether Bank has communicated orally with Santiago or

arranged f

or someo ne at the pr

ison to read her lett

er and other

documentsto him. Accordingly, we deny her motion to be relieved as appella te counsel in accordance with Anders , without prejudice to renewal within thirty days of the filing of this opinion upon a showing of reasonable efforts to convey th e required

notice to t

he defendant

orally in a lan

guage that he u

nderstan ds. Any renewed Anders

motion wil

l be referr ed to this panel for co nsiderat ion. The Go

vernment’ s motion for summary affirmance will be held in abeyance until such time as we are informed that a6

renewed mot

ion has been

filed or t hat the def

endant’s co unsel has decided to p roceed in s ome other

manner.