Federal Criminal Appeals

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FEDERAL CRIMINAL APPEALS – 10 THINGS YOU NEED TO KNOW

CANNON & ASSOCIATES is dedicated to Fierce Advocacy for those facing federal criminal charges before, during, and after trial. Every federal criminal defendant is entitled to appellate review of their case. Federal criminal appellate review is by one of the twelve Circuit Courts. The three federal districts in Oklahoma: Western District, Northern District, and Eastern District, are all part of the Tenth Circuit Court of Appeals. The Tenth Circuit Court of Appeals consists of the Federal Districts in Oklahoma, Colorado, Kansas, New Mexico, Utah and Wyoming.

Although being convicted of a crime in federal court entitles you to review by the appellate courts, a direct appeal pursuant to 18 U.S.C. §§3732 and 3742, it does not entitle you to understand the process, which is the purpose of this page. This page answers ten of the most common questions I am asked by clients and potential clients facing federal criminal appeal. It is crucial you contact an experienced federal criminal defense attorney, if you are facing charges or seeking to appeal a conviction. Contact CANNON & ASSOCIATES, PLLC now to receive a free consultation on your case.

1: Every Federal Criminal Defendant has access to a Direct Appeal

As stated above, every federal criminal defendant convicted after trial or a guilty plea has access to a direct appeal. Those who cannot afford to hire expert counsel are entitled to appeal without the $505.00 filing fee In Forma Pauperis, appointed counsel, and a free transcript of their proceedings in District Court. However, those that are not indigent must hire counsel, which is an expensive endeavor for the reasons explained below.

Every criminal defendant in federal court has a right to appeal; however, a defendant may also waiver his or her right to appeal. Waivers are enforceable, even if pursuant to a plea agreement, if knowingly and voluntarily entered into by the defendant. In federal court waivers may be limited to specific issues, while retaining the right to appeal separate issues, but that issue will be left for another day.

2: How it Begins – Notice of Appeal

Notice of Appeal is not your actual appeal. A “Notice of Appeal” is very brief document notifying the federal district court, Circuit Court, and prosecutor of your intent to appeal. The deadline for filing your “Notice of Appeal” is ten (10) days of the entry of judgment or order being appealed. The panic many defendants and their families feel is based on this ten (10) day deadline; however, it is a basic assertion by the defendant of his/her intent to seek review/redress from the Circuit Court. So, if your family member is facing this deadline for their appeal you have time to hire a qualified appellate lawyer. Most attorneys will require you to meet their retainer before filing a “Notice of Appeal” that complies with federal rules and local rules.

Do not wait until the last day to contact and hire an experienced federal criminal appellate attorney. Although your attorney at the trial level is obligated to assist you in preserving your appellate rights; you should not wait to hire appellate counsel as it is only the first step in a very detail oriented process. Filing a “Notice of Appeal” is a simply, but a vital task in preserving

your right to appeal. You can decide later that you do not wish to appeal and dismiss; however, you will lose your right to appeal without exercising this option.

3: Federal Criminal Appeal is not a retrial of the evidence

Just as the title for this section states; a federal criminal appeal is not a retrial of the evidence heard by the jury at trial. A federal criminal appeal, specifically a “direct appeal” is your opportunity to fight your case on legal grounds or legal conclusions reached at the trial level. Federal criminal appeal is not a retrial. Federal criminal appeal is not a rehearing of evidence. Federal criminal appeal is a proceeding fought on paper by briefs and responses raised by defendant(s) and the government, U.S. Department of Justice, which will be read and considered by a panel of the Circuit Court. The only issues considered on appeal are legal errors alleged to have occurred at the district court level.

Federal Appellate Courts generally do not hear any new evidence; rather these courts only consider legal arguments based solely upon facts and evidence developed or excluded and recorded at trial. At the appellate level, the facts are the facts and the real argument is the District Court’s application of the law to those facts.

4: Federal Criminal Appeals is not about the facts; it is about Details

Federal Appellate practice has strict technical requirements and the Court enforces them stringently. Any mistakes by your attorney can result in serious delays, which will leave you and your family in limbo while procedural errors are addressed. Proper application of the multiple rules at play in federal appellate practice will not only reduce the stress of delays and procedural errors; it demonstrates an attention to detail that the appellate courts’ respect. Your attorney’s demonstration of expertise in applying Circuit Court rules has a positive impact on the staff of professional clerks and attorney’s at the Court tasked with the initial review of your appeal.

Details are extremely important in federal criminal appellate practice. All appellate judges read briefs for hours every day and have a team of staff attorneys that do the same thing for even more time every day. Only the best legal and procedurally sound arguments, in the sea of appellate briefs, stand out in a positive light to these dedicated attorneys and judges. On the opposite hand, briefs with errors stand out like a sore thumb and take focus away from your arguments and redirects it at mistakes in your case, which weakens your argument.

Clear, precise, and well-reasoned arguments are well received by the Judges and staff at the appellate level. A benefit, which cannot be overstated on your appeal. Issues raised on purely legal grounds are subject to a heightened level of scrutiny, or an independent review, i.e. the Circuit Court will not defer to the District Court’s ruling, which is the usual practice. However, some legal arguments are reviewed for abuse of discretion, which is a highly deferential “forgiving” standard for the decisions of the District Court. Understanding and seeking application of the correct standard of review is crucial in your appeal.

5: Federal Criminal Appeals are an Exercise in Patience

As opposed to federal or state criminal trials, which can take weeks or only a few months following an alleged crime; federal appeals take multiple months or sometimes over a year from the “Notice of Appeal” being filed to a result from the Circuit Court. Many people ask why the process takes so long and the answer is simply, but includes many parts:

  • The Circuit Courts are crowded, the Tenth Circuit (covering Oklahoma) receives thousands of petitions every year from the six (6) states making up the Circuit;
  • Every case submitted to the Circuit Court is reviewed individually;
  • The record and briefs submitted in each case take many hours to read and even more to analyze;
  • Previously submissions required caused great delays

Electronic Filing (“ECF”), a system attorneys use to file pleadings electronically in federal district and appellate court, has increased the speed briefs can be submitted, but nothing can increase the rate real human judges and attorneys review the briefs, evidence, and transcripts in cases. Our system is based on the application of precedent, cases that have come before the case/issue at hand, and apply precedent to the facts in specific cases. This process of researching precedent takes time. Your attorney cannot reduce the length of time of your appeal being decided; however, he/she can increase the amount of time it takes for your appeal to be heard and decided.

A study published in Judicial Business in 2016 from the Administrative Office of the United States Courts reported the median time from Appellee briefs to oral argument on the merits in the Ninth Circuit was sixteen and a half months. Even more shocking, the study found the average time from Appellee’s brief to decision was twenty-five and a half months, which is the median time. The DC Circuit, conversely in the study, showed just shy of one year as the average time from initial appeal to final decision on an appeal. All this is to say, do not expect to have an answer in a short period of time on your criminal appeal.

6: Federal Criminal Appeals are nearly exclusively decided “on briefs”

Nearly 80% of federal appellate cases are decided on briefs along. I repeat over three-fourths of federal appeals are decided without oral argument; “on the briefs.” This fact alone means the brief submitted on your behalf is the most important factor is deciding the outcome of your federal criminal appeal, if for no other reason than it may be your only argument before the judges decided to grant you or deny you relief from the District Court.

That fact begs the question, what is a federal appellate brief. Your appeal officially begins with your “opening brief” or principal brief. The opening brief is a writing; filed by the party appealing “Appellant”; providing the Court with a fair, unbiased, recitation of the facts of the case presented at the District Court level; followed by a persuasive, legally sound, and direct argument of specific standing legal principles or doctrines you allege were violated at the District Court or trial level. Every fact asserted/alleged in the brief must be supported by evidence presented at trial: a citation to the page and line of the transcript or a piece of physical or real evidence presented. Every argument in your brief must supported by one of the following: the Constitution; federal law; or precedent, previously decided cases, directly on point to the issue in the case at hand.

After the “opening brief” by the appealing party “Appellant”; the responding party “Appellee” files a response brief, which addressed every argument raised by the Appellant. In federal criminal practice, the Appellee is an attorney from the Department of Justice, U.S. Attorney’s Office, or other federal governmental agency. The “response brief” is simply a response to the facts and arguments raised and alleged in the “opening brief.” Just like the opening brief, the response brief is required to cite specific facts and legal precedent to support why the Appellant is wrong.

Finally, the Appellant is generally allowed to file a “reply brief”, which raises arguments against the response brief. These three briefs: two by the Appellant (opening and reply briefs) and one (response brief) by the Appellee, responding party make up the allowed briefing in federal cases. In rare circumstances, the Court will identify particular issues that require further briefing and allow both parties to state their position on the identified issue. The details make or break federal appellate brief writing: technical requirements, font and stylistic requirements, formatting, deadlines, and many other factors make or break many appellate briefs.

Any arguments raised on appeal must first meet everyone of the requirements detailed above in order to be considered as having merit by an appellate judge or his/her staff attorneys and clerks. Every argument raised in any brief must be based in the law: former court decisions, precedent or common law, and statutory law. This black and white requirement is understood by all federal appellate criminal defense attorneys; however, it is not exercised by all. The reason… it is difficult to stay up to date on relevant common law and have excellent research and writing skills. Issue spotting is another difficult skill to master. It is easy for a practitioner to go down the wrong path or argument when analyzing a federal criminal jury trial that lasts a week or longer. However, selecting the right issues and creatively raising arguments to support or defend those issues is a difficult skill to master.

The decisional law governing federal criminal appeals is generally based in the Fourth, Fifth, and Sixth Amendment to the United States Constitution; however, white collar cases add an additional wrinkle requiring study of the law and understanding of the principles governing those crimes. In summary, it is essential to hire an attorney versed in the issue spotting, the law, and procedures governing federal appellate criminal practice to represent you or your loved one.

7: Your Appellate Defense Attorney is limited to the Facts in District Court

It is not essential your federal criminal defense attorney get every piece of evidence into trial in order to preserve or save the issue for appellate review; however, it is essential he/she preserve every issue at trial in order to raise it before the appellate court. What does preserve it mean? Preserve is a short form of the theory of “Preservation of Error for Appeal”, which means either entering evidence or arguments into trial or putting them on the “record.”

Your federal defense attorney at trial is tasked with not only objecting to improper evidence, but giving the legal grounds or basis for the objection and forcing the court to give an adverse ruling. An adverse ruling occurs when your trial attorney asks for material to be stricken/excluded from being considered and the request is denied. The District Court must have the opportunity to correct an error at the trial level or on appeal an “Appellant” risks “waiving” or giving up that issue.

Waiver is another peculiar principle in federal appellate practice. In the NFL, if a coach fails to throw the challenge flag and preserve the team’s objection to a referee calling or missing a foul or play, then the challenge to that play or call is “waived” or given up forever. The same principle applies in federal appellate practice. The appellate court is designed to correct legal errors at the District Court level, not fix problems the District Court was unaware of or left unpresented by trial counsel.

One of the greatest art forms of federal criminal trial advocacy is “preserving the record for appeal” and doing so without offending the judge or jury during the process. Although you federal appellate defense attorney can artfully craft arguments to attack legal and procedural errors committed at your criminal trial; he or she cannot re-write the trial transcript and the Appellate bench will ignore any attempts by either party to do so. I hope this explains the importance of fighting at trial, but at the same time maintaining issues for appeal. The failure to do so will be fatal to your chances at appeal.

8: Federal Criminal Appeals are Complex and Expensive

Judges, attorneys, witnesses, and the like are human; we all make errors. The longer a federal criminal trial lasts; the more likely there will be errors, which can be argued on appeal. The longer federal criminal trial lasts; the more time it will take for your criminal appellate defense attorney to properly review the transcripts, evidence, and relevant pleadings from trial. Trials that last only a few days generate hundreds, if not thousands of pages of transcripts. Your federal criminal appellate defense attorney must read, review, and understand every page and issue developed at trial in order to properly represent you on appeal. High attorney fees come as a result of complex issues combined with a great amount of time required to research and analyze issues.

Attorneys can only speculate as to the amount of time and research necessary to properly litigate the relevant issues on appeal. There are expenses outside of your defense attorney’s time and fees, particularly filing fees and transcripts of the trial. The current filing fee for a federal criminal appeal is $505.00. This fee is generally paid at the District Court that heard your federal criminal trial. The largest expense, other than experienced defense counsel, is transcripts. The price of transcripts is determined per-page with little variation between private and government court reporters. Court reporters keep excellent records and are able to tell you an accurate estimate on the price of the transcript. The transcript for a trial lasting one week will cost $3,000 to $5,000. The entire District Court record is often required by the Circuit Court. Some Circuit Courts require the District Court to rent our or loan the Circuit the District Court record and other Circuit Courts require the appellant to provide copies of the relevant portion. Either way this voluminous collection is called the “Appendix” and is more of a logistical hassle than a substantial cost; however, it can certainly be a cost to the party seeking redress from the appellate court. The Circuit Court will require the strict procedural and format requirements are complied with in submitting the “Appendix”, if Appellant counsel is tasked to complete the record, which adds many hours of attorney time and costs to Appellants.

Hopefully the costs of creating and shipping huge briefs, pleadings, and records will be a distant memory in the near future due to the increased use of technology and electronic transmission of briefs and files. Change is unfortunately a slow process and the application of electronic filing at the Circuit level varies from Circuit to Circuit.

The cost of travelling to the Circuit Court for “oral argument” (discussed in the next section) will be substantial, if granted. Arguments are scheduled for the morning generally; however, the actual start time is sometimes not known until days before scheduled argument. With the unreliability of weather and commercial travel and the fact your case will be heard with or without your counsel makes it a necessity to arrive at the city the Circuit Courthouse is located in at least the day before argument.

As discussed in the next section, if oral argument is granted it can make or break your appeal. In order to prepare for oral argument, the best attorneys will conduct practice sessions with experienced federal appellate practitioners acting as the Circuit judges and opposing counsel. In order to conduct as real a practice or “moot” argument as possible, the attorneys at the practice session will have to have read the briefs of both your counsel and the government. This will allow them to ask difficult questions of your attorney that hopefully will simulate the questions asked by the judges on your actual panel. However, this process involves retaining the service of multiple attorneys for multiple hours, which will add cost to your appeal. Speak to your lawyer to see, if this cost is included in your lawyer’s fee agreement. An experienced federal criminal appellate lawyer will be able to give you an accurate proposed budget before you hire him or her, but only, if you ask.

9: Oral Argument is a skillset you want in your Attorney

Any attorney who tells you oral argument is not important in your appeal is mistaken. Although most federal appeals are decided on the briefs alone, you want your appellate criminal defense attorney to argue your case in person before the judges deciding your appeal. The questions the panel of judges ask about the facts and law applicable to your case may reverse your conviction or sentence. During oral argument, your appellate attorney will face two types of questions: easy and hard. Easy questions are presented by a judge who agree with you on the case as a whole or that individual point. The answer your appellate attorney gives to an “easy question” will assist the judge asking the question argue on your behalf to the other judges! Hard questions are presented by a judge who does not agree with you on the case as a whole or that individual point. The answer your appellate attorney gives to a “hard question” may sway the judge asking or potentially all the judges to see that issue or the case in the light your attorney presents!

Every word presented by your appellate attorney is an opportunity to convince the judges to rule in your favor; an opportunity you cannot afford to waste on an unskilled attorney. Every experienced criminal defense attorney knows to request oral argument; however, the factor that gives you the greatest chance of being granted oral argument is your attorney’s brief writing skills and raising compelling legally sound arguments raising only the most powerful issues in your appeal.

Adding to the pressure of federal appellate argument is the settings of these hearings. Each of the twelve federal Circuit courthouses are historic buildings with rich history and massive courtrooms. The panel of judges your attorney face sit at a raised bench roughly twenty feet from your attorney. Your attorney will be required to stand behind the lecturn (podium) for the entire argument and a green, yellow, and red light will indicate to him/her when their time has expired. Your attorney may request permission to finish their answer to a pending question when time runs out; however, usually that request is denied. All that is to say, the time allowed for argument is precious and days of preparation go into presented the best argument possible, while responding to a large number of difficult questions, sometimes in quick succession.

10: Winning your Appeal Usually Does Not Mean you are Acquitted

The most common issues raised in federal criminal appeals are errors during trial. Unfortunately, the best outcome on an appeal based on errors at trial is a new trial. However rarely successful, appeal raised on insufficient evidence can result in your case being dismissed, if you win on appeal. Insufficient evidence arguments raise similar issues to as trial; the prosecution failed to prove a specific element of a charged crime. In this limited circumstance, the Circuit Court directs the District Court to dismiss the charges and vacates the defendant’s conviction.

A middle ground between acquittal and simply having your case remanded for new trial is winning on an evidentiary or suppression issue. The result of the Circuit Court excluding evidence in your subsequent trial may convince the prosecution from not taking you to trial again or agreeing to only seek a conviction on a lesser charge.

Appeals on trial errors are based on the issues discussed above: improper evidentiary rulings; prosecutorial misconduct, such as arguments or statements that are overly prejudicial; improper jury instructions; and other issues. Winning on appeal may result in re-litigating your case; however, it will also afford your federal criminal defense attorney the opportunity to seek an agreement from the U.S. Attorney to dismiss your case or agree to a better disposition. Unfortunately, winning on appeal usually starts the lengthy and stressful process of federal criminal prosecution over again. Finally, it is crucial to understand the meaning of “winning on appeal” before embarking on the lengthy and expensive process.

Conclusion

Federal criminal appeals are a procedurally and legally dense practice, which require expertise and dedication to detail. It is my hope this article has educated you on major issues to examine in deciding whether or not to seek redress on appeal in your federal criminal case.

Experience matters when your freedom or the freedom of a loved one is at issue. It is important to know the attorney you hire is the attorney researching and drafting on your behalf. John Cannon, owner of CANNON & ASSOCIATES, PLLC, will personally research and draft your appeal and work along-side you during the entire process. John has been honored by being identified as a Top 40 under 40 in Criminal Defense by the National Trial Lawyers Association. John has the experience you need and will bring it to bear in your case. Additionally, he has an outstanding record of reaching the best possible outcome for hundreds of clients accused of the wide variety of criminal charges, evidenced by receiving the highest possible AVVO rating – 10 (superb). Contact CANNON & ASSOCIATES to protect your freedom and Fight your Case. You may send an email inquiry, complete the contact form on our website, or call at 405-657-2323.

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