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Appeals From Federal Criminal Convictions

Federal Criminal Appeals - Introduction

Persons convicted of commiting federal crimes can appeal their convictions. Appeals from a judgment entered by a United States Magistrate Judge are made to the United States District Court. Appeals from a judgment entered in a United States District Court are made to the United States Court of Appeals. For convictions in the United States District Courts for the Districts of New Jersey, Delaware, Pennsylvania, and the Virgin Islands, the appellate court with jurisdiction is the United States Court of Appeals for the Third Circuit. The United States Court of Appeals for the Third Circuit is in Philadelphia. Review of decisions of the Court of Appeals may be sought from the United States Supreme Court.

Federal Criminal Appeals - The Rules

Matters presented to the United States Court of Appeals are governed by the Federal Rules of Appellate Procedure. Those rules are more or less uniform throughout the United States. We say “more or less” because different United States Courts of Appeal can interpret those rules differently. When those differing interpretations are handed down in precedential decisions, they will be applied to all future cases in that Circuit. Thereafter, these differing interpretations can be made uniform throughout the nation only by a Circuit overruling its own precedent (rare), or by a decision of the United States Supreme Court.

Supplementing the Federal Rules of Appellate Procedure are Local Rules of Appellate Procedure. Federal Rule of Appellate Procedure 47 explicitly allows Courts of Appeals to make local rules. These local rules must be consistent with Acts of Congress, and with the Federal Rules of Appellate Procedure themselves. Existence of local rules also contributes to non-uniformity between the Courts of Appeals in the different Circuits.

This page deals with federal appeals involving only criminal matters. This qualification is important because the rules differ, depending on whether an appeal is from a civil matter or from a criminal matter. Persons interested in appeals of federal civil matters, including habeas corpus, tax matters, bankruptcy matters, and appeals from orders of an administrative agency, are cautioned not to rely upon information on this page.

Federal Criminal Appeals - Time Constraints

The deadline for defendants to file an appeal is fourteen days. The fourteen-day clock starts ticking upon entry of the judgment or order from which the appeal is being taken, or from the date that the government files a notice of appeal, whichever comes later. The deadline for the government to file a notice of appeal is thirty days. That clock begin to tick upon entry of the judgment or order from which the appeal is being taken, or from the filing of a notice of appeal by any defendant, whichever comes later. The district court (not the appellate court) can extend these times for up to thirty additional days when “good cause” is shown.

The time limits just specified are not “jurisdictional.” What that means is that in absence of compliance with these time limits, the Circuit Court of Appeals can still consider the merits of the appeal, but only if the opposing party fails to object. If the opposing party does object, the court must sustain the objection and dismiss the appeal.

Federal Criminal Appeals - Procedure

Appeals are taken by filing a notice of appeal with the district court. The clerk of the district court serves copies of the notice of appeal upon all parties to the appeal. The clerk then notifies the appellate court of the appeal, and provides the appellate court with pertinent information.

The “record” of the case are those documents that, collectively, specify what happened before the case reached the Court of Appeals. This record consists of the original papers and exhibits filed in the district court; the transcript of proceedings; and certified “docket entries” prepared by the district clerk. It is the appellant's responsibility to order and pay for all relevant transcripts.

In considering an appeal, what the appellate judges review are the record, briefs submitted on behalf of the parties and, sometimes, oral argument. We qualify oral argument with the word “sometimes” because a three-judge panel can deny oral argument. Oral argument will be denied when the panel unanimously agrees that the appeal is frivilous, or all dispositive issues have been previously authoritatively decided, or the record and the briefs alone are sufficient.

Federal Criminal Appeals - Briefs and Appendices

The Federal Rules of Appellate Procedure specify what the brief must contain. Items to be in the brief include a jurisdictional statement, a statement of the issues presented, a statement of the case, a statement of facts, a summary of argument, the argument itself, and a conclusion. The appellant is required to file his brief within forty days after the record is filed. The appellee then has thirty days to file his brief. The record below is presented to the Court of Appeals by copies of the transcripts, and by an “appendix,” filed simultaneously with the briefs.

And After? The United States Supreme Court

Review from a decision of a United States Court of Appeals is available only from the United States Supreme Court. The Supreme Court also has jurisdiction to review a decision of the highest court of a State, when a federal issue exists. However, in both of these cases, right of review is not automatic. Review is available only when the United States Supreme Court agrees to hear the matter. One asks the United States Supreme Court to review a decision by preparing and filing what is called a “Petition for a Writ of Certiorari.”

The United States Supreme Court has its own set of Rules, distinct from the Federal Rules of Appellate Procedure. These Rules provide guidelines that the Supreme Court follows in considering whether to grant Certiorari. Rule 10 of the Supreme Court Rules spells it out:

Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers:
  1. a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power;
  2. a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;
  3. a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.

Federal Criminal Appeals - Concluding Thoughts

This page presents a highly selective and summarized overview of federal appeals. The appellate rules include incredible amounts of minutia not touched upon here. This minutia includes such items as format of covers of briefs, color of covers of briefs, maximum size of briefs, size type to be used, how the brief is to be bound, number of copies to be filed, and on and on. Rules relating to the appendix have their own list of requirements. And Supreme Court Rules specify the minutia that must be observed in preparing Petitions for Certiorari, as well as briefs.

Criminal Lawyers in New Jersey have over sixty-five years of combined experience. They have successfully guided federal appeals to conclusion. They have petitioned the United States Supreme Court for certiorari. They are available to review your federal appeal with you in a no-cost no-obligation conference.


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