Whether the right to due process on appeal is violated where an appellate court invokes legal arguments not presented by parties or declines to acknowledge presented arguments and binding authorities

Where the right to appeal a trial court judgment is provided by statute, “that appeal must accord with due process.” Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir. 1990). This case presents an ideal opportunity for the Court to provide much-needed guidance with respect to the following important questions: 1. Whether the right to due process on appeal is violated where an appellate court invokes and relies on a legal argument that was not presented by an opposing party or otherwise mentioned prior to the issuance of the court’s decision. 2. Whether the right to due process on appeal is violated where an appellate court declines to acknowledge presented arguments, binding authorities, or material facts. 3. Whether a prophylactic rule of procedure, imposed pursuant to this Court’s supervisory authority, is warranted to deter federal courts of appeals from crafting decisions based on arguments, authorities, and material facts that differ from those presented in the parties’ briefs. ii RELEATED PROCEEDINGS ● United States v. Davis, et al., Nos. 22-1172 (L), 23-6348 (Con.), & 23-6505 (Con.), U.S. Court of Appeals for the Second Circuit. Summary Order and Judgment issued February 10, 2025; petition for rehearing denied April 25, 2025. ● United States v. Valdez, et al., No. 18 Cr. 138 (JLS), U.S. District Court for the Western District of New York. Judgment entered April 4, 2023.