Federal Criminal and Sentencing Appeals
Every person convicted of a federal crime is entitled to at least one appeal of his conviction and/or sentence.
Below are answers to basic questions about the appeals process.
A Federal Criminal Appeal is Not a New Trial
A federal criminal appeal is a direct appeal to a higher court where the criminal conviction or sentence is attacked on some legal ground or grounds. An appeal is not a rehearing of the evidence, but instead is a proceeding "upon the briefs." That is, attorneys both for the defendant and for the government file briefs that raise and respond to legal errors alleged to have taken place in the trial court.
A Notice of Appeal and Appeal on the Merits are Not the Same Thing
In the federal system, a Notice of Appeal is required to be filed within ten days of the entry of the judgment. The Notice is usually a page or two long and must be filed in the district clerk's office. The Notice is what triggers the Appeal on the Merits which is the legal proceeding of an appeal in the respective court of appeals.
It is extremely important that the Notice of Appeal be filed within the ten-day timeframe. It is difficult to overcome a late filing.
If you are not certain whether you need to file an appeal, it is recommended that you speak to appellate counsel well before the ten-day expiration as most appellate lawyers will not agree to file a notice on your behalf unless they are formally retained for the entire appeal.
The Wheels of Justice Turn Slowly
Federal appeals take months if not years to conclude. The federal appellate courts are required to consider each case individually which takes a large amount of time. Statistically, cases on appeal generally take just over a year to resolve. In the Ninth Circuit, the nation's largest federal circuit, an appeal takes over seventeen months to resolve.
Briefs Only
The vast majority of federal criminal appeals are judged on the briefs alone. A legal brief is the written document that sets out the trial court's error and persuades the court of appeals of the proper remedy. It is the rare case that the court of appeals requests that the lawyers provide oral argument in addition to their briefs. According to the United States Courts' statistics, less than 1/4 of all cases required oral argument.
Appeals Can Be Costly
Generally, the more complex the trial court proceedings are, the higher the cost of any appeal will be. Lengthy trial transcripts and large volumes of documentary evidence require tremendous amounts of time to read, review, and study. More time equates to higher fees.
Appellate courts also have rules regarding the presentation of the evidence in their courts. Often documentary evidence must be produced in multiple copies, bound, and tabulated. This translates into higher costs for the appeal.
An appellate budget must also consider the cost of oral argument. Though oral argument is rare these days, the court of appeals may still request it in certain cases. In the Fifth Circuit, the court of appeals is located in the city of New Orleans. Oral argument, therefore, would require travel to and from New Orleans along with reasonable accommodations.
An Appellate Win is Usually Not "Game Over"
Many prospective clients erroneously believe that if they win their appeal, then their case is more or less over. That rarely happens.
The relief warranted by an appeal depends on the specific issue raised. Generally, most appeals fall into the realm of "trial errors" or "sentencing errors." These types of errors include procedural violations, improper argument, discovery problems, and the like. If these errors are pursued on appeal, the likely relief is not "game over," but a new trial. The potential for this outcome should be considered before the formal retainment of appellate counsel.
It is worth noting that a number of appeals involve the issue of a motion to suppress certain evidence. In this instance, an appellate victory may constitute "game over" as the government may not want to try to secure a conviction without the suppressed evidence.
Note:
One area of sentencing concern is the amount of restitution ordered. In practice experience, the trial courts usually order restitution based relevant conduct without regard to the offense of conviction. The firm has been successful in appealing such judgments.