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What Are The Steps In A Federal Criminal Appeal?

Categories: Appeals

federal appeal
Dr. Nick Oberheiden
Attorney-at-Law

Criminal  Defense Attorneys Assisting with the Federal Criminal Appeals Process

If you have been convicted of a federal offense, you probably have many questions about your options to appeal or otherwise overturn the finding of the trial judge or jury. Most importantly, don’t be discouraged. The Federal Rules of Criminal Procedure recognize that jurors and judges can make mistakes and thus provide several avenues to modify, vacate, or undo verdicts and judgments. Perhaps the best known of these post-conviction remedies is an appeal. The purpose of this brief article is to provide an overview of the timing, the process, and the legal skill set needed to file a federal criminal appeal.

The Federal Criminal Appeals Process Explained

Although many defendants assume that an appeal will take place immediately after the jury returns with a verdict, there are certain steps that will take place in the trial court before a formal appeal is filed.  However, each of these trial court procedures will have an effect on your appeal, and if they are not handled properly, the appellate court may find that you have waived one or more of the arguments that you want to make on appeal – no matter how valid or correct that argument may be.  For this reason, you should seek the advice of an experienced federal criminal appellate attorney as soon as possible after a verdict has been rendered.  A good appellate lawyer will work with you and your trial lawyer to ensure that every issue is properly preserved so that the appellate court will be able to consider each argument that should be raised and analyzed.  The following possibilities should be considered immediately:

  1. Motion for judgment of acquittal:  Federal Rule of Criminal Procedure 29 provides that after a conviction, a judge may set aside a verdict and enter a judgment of acquittal if the evidence was insufficient as a matter of law to sustain a conviction. This motion must be made within 14 days of either the verdict or of the jury being discharged, whichever is later.   The motion for judgment of acquittal challenges the sufficiency of the evidence presented by the government to convict a defendant, and while these motions are difficult to win in the trial court, they must be filed in order for the defendant to retain the right to challenge the sufficiency of the evidence on his appeal.  In other words, if this motion is not made, you may have waived your right to argue that there wasn’t sufficient evidence to support your conviction before any higher court.  At the very least, the standard of review on appeal will be much more difficult to meet if the Rule 29 motion is not properly and timely made.
  1. Motion for new trial: Federal Rule of Criminal Procedure 33 provides that a court may vacate a judgment and order a new trial “if the interest of justice so requires.”  This motion must also be filed within fourteen days of the verdict, unless it is based on newly discovered evidence, in which case it must be filed within three years of the verdict.  If a Rule 33 motion is granted, a finding of innocence will not be entered, but instead the court will order that a new trial be had.  Common grounds for Rule 33 motions include procedural errors made by the court at trial such as allowing testimony that should have been excluded or improper commentary by the prosecutors, as well as an argument that the verdict is against the manifest weight of the evidence.  Like a Rule 29 motion, failure to make a Rule 33 motion that properly challenges these issues may lead to waiver of the issues on appeal or a higher standard of review being applied by the appellate court.
  1. Motion for arrest of judgment: Although it is exceedingly uncommon, in certain situations the trial court did not properly have jurisdiction over the crime with which the defendant was charged.  In this situation, the defendant should make a motion for arrest of judgment under Federal Rule of Criminal Procedure 34, which provides that a court must arrest a judgment if it does not have jurisdiction over the offense with which the defendant was charged.  This motion must be made within fourteen days of the verdict or finding of guilt.

Meanwhile, after the verdict, the judge will set a time and place for sentencing.  It is after sentencing that the time starts running for your appeal to be filed.

How Does An Appeal Work?

Rule 4. Under the Federal Rules of Appellate Procedure, the defendant’s notice of appeal must be filed within fourteen days of the entry of judgment or of the order being appealed.  Fed. R. Crim. P. 4(b).  If a timely motion under Rule 29, 33, or 34 has been made, this period will be extended until 14 days after all such motions have been disposed of, or 14 days after the entry of judgment of conviction, whichever is later.  Id.  Notably, a judgment of conviction is not entered by a federal court until after sentencing has been announced, when the judge will enter a final order disposing of the case.  Any notice of appeal filed prior to this time will be treated as if it were filed upon the entry of the judgment and commitment order.  Id.  Once a notice of appeal becomes effective, the trial court loses jurisdiction over the case and cannot make any more orders regarding the judgment or the sentence.  The notice of appeal shifts jurisdiction to the Court of Appeals.

Notice of Appeal. Many people confuse the filing of the notice of appeal with filing the appeal itself, and panic when they realize they only have 14 days to file.  Note that the notice of appeal is a brief, one-page document that merely notifies the court of the defendant’s desire to appeal his conviction and/or sentencing, and can be prepared quickly.  Nonetheless, the fourteen-day deadline means that you should retain a lawyer to represent you on appeal as soon as possible after the trial court enters the judgment of conviction, if you have not already done so.   An appellate lawyer will need time to check for conflicts, review the case, and prepare and file the notice making sure that no deadline has been missed.

Transcript Review. Once the notice of appeal has been filed, a number of steps have to be taken before the appellate court will actually decide the case.  Within fourteen days, the attorney who filed the notice of appeal must file a statement of representation identifying each party that he or she represents in the appeal.  More importantly, within this same time period, the attorney must request that the transcript of the trial be prepared by the court reporter. This transcript must paid for by the defendant who is appealing his or her conviction, who makes arrangements for payment with the court reporter directly.  The transcript will become part of the record on appeal, which also contains all papers and exhibits filed in the trial court as well as certified copy of all docket entries at that level.

Legal Brief. Although courts have the power to shorten the time limits, the Federal Rules of Appellate Procedure generally provide that an appellant has forty days after the record is filed to file his or her opening brief.  Fed. R. Crim. P. 31.  Failure to file the brief on time will likely result in the appeal being dismissed.  The government, or appellee, has thirty days after service of the appellant’s brief to file its brief in response.  The appellant then may, but is not required to, file a reply brief to the appellee’s brief within fourteen days after the appellee’s brief was filed.  Id.

Electronic Filing. Once the record is filed with the clerk’s office at the court of appeals, which is now done electronically, the time will start running for the defendant who filed the appeal, now called the appellant, to file his or her brief.  The court of appeals will notify the defendant’s attorney once the record has been received – an item which is frequently delayed by mistakes in the trial court record or busy court reporters who cannot prepare the trial transcript quickly enough.  If the court reporter does not file the transcript in a timely fashion, the court of appeals will order her to do so.  If there is a controversy over the components of the record and which items should be included therein, the court of appeals must refer that dispute back to the trial court for a determination of the proper contents of the record.

Panel of Judges. Every appeal is decided by a panel of three circuit court judges, who are randomly assigned to the appeals as they are filed.  Most appeals are decided “on the briefs,” which means that oral arguments are not held for most of the appeals that are filed.  However, oral argument will usually be requested in every case – it is up to the judges whether or not oral argument will be granted.  Once the briefs are filed, and any oral argument ordered is held, the parties must wait for the court to rule either for or against them.

What Should I Know About A Federal Criminal Appeal?

An Appeal Is Not a New Trial. For laypeople, there are many surprises about the appellate process.  The most important, and most unexpected for many people, is that an appeal is not about the facts of the case, except in the broadest sense.  Appellate courts do not hear from witnesses, do not take evidence, and do not re-try the case.  Instead, the job of the appellate court is to review the testimony and documents presented in the trial court to discern whether or not a legal error has been committed.

Review of Legal Errors. While the point of a trial is to determine the facts, the point of an appeal is to see if the law has been properly applied.  Thus it is often said that after a conviction, the focus shifts from the facts to the law.  It is not appropriate to bring up facts on appeal that were not presented to the trial court, unless these facts are newly discovered or the appeal is based on ineffective assistance of counsel.  Instead, the court of appeals will look to see if the factual evidence as presented was sufficient to sustain a conviction under the Constitution, or whether the verdict was against the manifest weight of the evidence.  The court of appeals will also review claimed legal or procedural errors made in the trial court.  For example, did the trial court err in allowing certain evidence to be presented to the jury?  Were there pretrial motions (such as a motion to suppress evidence seized from the defendant) that were not decided correctly as a matter of law?  Did the prosecution commit misconduct, such as vouching for government witnesses, improperly commenting on a defendant’s decision not to testify, or making misstatements in their closing argument?  These type of arguments as well as others that often turn on a very narrow legal point are those that are considered and decided on a criminal appeal.

Timing. Another surprise for many people who are not familiar with the federal criminal appeal process is the amount of time that an appeal takes.  The federal court system is extremely busy and each judge on each court has to consider hundreds of cases each year.  While the judges do have legal clerks and assistants to help them review the files, the panel of three judges assigned to the appeal ultimately have to vote on and decide each issue raised in the appeal.  Doing so often requires a careful review of the entire file, including the transcript of the testimony elicited during each day of what may have been a weeks or months long trial.  Judges are, after all, only human and can only work so many hours per day, week, or month.  Even after the briefs are filed and any oral argument is held, it is likely to take months – and maybe even a year or more – for the decision to be handed down in your case.  Try to remember that this slow pace means that the courts are carefully deliberating every case, including yours.  Ultimately, it is to your advantage for the court to take its time and carefully consider each of the arguments that your attorney has determined may cause the appellate court to reverse a conviction.

Legal Research & Brief Writing. Finally, it is important to know that federal criminal appeals are time consuming.  To write a persuasive, winning brief that will catch the court’s attention – and, hopefully, convince the court to allow oral argument on the appeal – takes careful research and substantial time to write and edit each argument that needs to be made.  Your attorney will also need to carefully review the trial transcript to identify potential avenues for appeal and to cite to the testimony on which he or she wants the appellate court to focus. You should expect that the more complicated your case is, the more defendants and charges that were involved, and the longer the trial was, the longer the appeal process will be.

Which Court Has Jurisdiction?

There are currently thirteen federal circuits in the United States each with its own court of appeals.  Two are not numbered:  The Federal Circuit, which hears only appeals from patent cases, and the D.C. Circuit, which only hears appeals from federal cases that were tried in Washington, D.C.  The other courts of appeals are numbered from one to eleven and divided geographically.  The First Circuit is headquartered in Boston and hears cases from Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico. The Second Circuit, based in New York City, is composed of Connecticut, New York, and Vermont. The Third Circuit hears cases in Philadelphia from trial courts in Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands.  The Fourth Circuit is based in Richmond, Virginia and hears cases from Virginia, North Carolina, South Carolina, Maryland, and West Virginia.  The Fifth Circuit is headquartered in New Orleans and comprises Louisiana, Texas, and Mississippi.  The Sixth Circuit, based in Cincinnati, hears cases from Ohio, Michigan, Kentucky, and Tennessee.  The Seventh Circuit hears cases in Chicago from trial courts in Illinois, Indiana, and Wisconsin.  The Eighth Circuit, based in St. Louis, is composed of Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North and South Dakota.  The Ninth Circuit is currently the largest, covering most of the western United States:  California, Hawaii, Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington, as well as Guam and the Northern Mariana Islands.  The Tenth Circuit, in Denver, consists of Colorado, Kansas, Oklahoma, New Mexico, Utah, and Wyoming.  And finally, the Eleventh Circuit hears cases in Atlanta from Georgia, Alabama, and Florida.  Your attorney will file the notice of appeal with the appropriate Federal Court of Appeals based on the location of your trial.

What Are the Chances of Overturning a Conviction?

In 2006, an empirical study showed that 68.5 percent of federal criminal cases were affirmed on appeal, meaning that the convictions of those defendants were upheld.  Federal Criminal Appeals:  A Brief Empirical Perspective, Michael Heise, 93 Marquette Law Review 825, 829 (2009).  Only 11.7 percent of federal criminal cases were reversed.  Id. The remainder were affirmed in part and reversed in part (2.8 percent), dismissed (7.8 percent), or remanded to the trial court for further proceedings (9.3 percent).  In our experience, those numbers have not substantially changed in the last decade.  Appealing a criminal conviction is difficult and the probability of success is not high.  However, our attorneys believe that no case is hopeless, and that proper preparation, research, and argument can improve your chances of having a federal appellate court overturn your conviction. After all, the flip side of 68.5% statement above is that more than 20% of all appeals change the outcome of the trial court in a favorable way to the defendant.

An important point to keep in mind is that in most cases, even if a conviction is thrown out, the case will be sent back to the trial court to be tried again.  As rare as it is for an appellate court to reverse a trial court in a criminal matter, it is even more rare for that court to order that the trial court enter a judgment of acquittal.  This fact must be taken into consideration when deciding to appeal a case – even after the appeal is over, if you win, your “prize” is a new trial where the entire process will begin again.  Proper handling of your appeal, however, can reduce the issues left to be tried and provide important guidelines that the trial court and prosecution must follow at any subsequent trial.

How Do I Find An Appellate Lawyer to Handle My Case?

Appeals are an entirely different process than a trial.  As noted above, on appeal the focus shifts from the facts to the law, and most appeals are decided on the briefs rather than from oral argument.  A good appellate lawyer is one who has the skills and experience to identify problematic areas at the trial, research and uncover similar cases in which convictions have been overturned, and then use the facts of your case as established at trial to weave in with the legal standards and case law to demonstrate and persuade that your case should be overturned.  Superior writing skills, unparalleled knowledge of the law, attention to detail, and an ability to persuade federal judges are all needed for your appeal to have the best chance of success.  Dr. Nick Oberheiden and Elizabeth Stepp are two lawyers who have the skills and ability necessary to ensure that your rights are protected after trial.

  • Nick Oberheiden (nick@federal-lawyer.com) has successfully represented executives, business owners, public officials, physicians, and lawyers in high profile prosecutions, scores of political corruption, government investigations, and media campaigns, including 60 Minutes. He has taught U.S. criminal law and federal litigation in the United States, in Europe, in South America, and Africa. Dr. Oberheiden is trained in negotiations by Harvard Law School, and he received his Juris Doctor from UCLA School of Law. He also holds as a PhD in law and he is licensed to practice before the United States Supreme Court, the Second Circuit Court of Appeals, the Fifth Circuit Court of Appeals, the Sixth Circuit Court of Appeals, among others.
  • Elizabeth K. Stepp (eks@federal-lawyer.com), a graduate of Yale Law School, is a former appellate and federal clerk and a litigation veteran with more than two decades of experience. Clients appreciate Ms. Stepp’s clever, unorthodox, and highly analytical approach to complex problems and her ability to persuade judges and juries of her well researched arguments.

Free Consultation

Federal appeals require academic rigor and fanatical attention to detail. Federal appeals are complex, multi-faceted, and require expertise, time, and considerable skill to handle.  In many cases, the lawyer who handled your trial may not be the right person to handle post-conviction proceedings.  Once a judgment of conviction has been received, you must act quickly to retain the right lawyer to protect your rights. If you have been convicted of a federal crime, you should call Dr. Nick Oberheiden or Elizabeth Stepp for a free and confidential consultation. No case is too hopeless to find relief.

Oberheiden Law Group, PLLC
Compliance – Litigation – Defense
(800) 810-0259
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