The federal appeals process can sometimes be complex and difficult to navigate. Perfecting a credible appeal requires an experienced attorney familiar with the Federal Appellate Rules of Procedure and the Local Rules of the appellate court to which the appeal is presented.
A defendant in a criminal case may appeal a guilty verdict, but the government may not appeal if the defendant is found not guilty. However, both the defendant and government may appeal the sentence imposed after a guilty verdict, unless binding waivers were part of a plea agreement.
NOTICE OF APPEAL IS NOT THE SAME AS APPEAL
As a general rule in criminal cases, a defendant may appeal only after the district court imposes sentence. The appeals process begins with the filing of a notice of appeal under Rule 4(b) (1) of the Federal Rules of Appellate Procedure. A premature notice of appeal filed after conviction but before the sentence is imposed is treated as having been filed after the imposition of sentence. The district court generally loses jurisdiction over the issues upon which an appeal is based. However, the Rule 4(b) (1) notice does not divest the district court of jurisdiction to correct a clerical error in the judgment or correct a sentence under Rule 35(a) of the Federal Rules of Criminal Procedure.
Rule 4(b) requires that a notice of appeal be timely filed, within fourteen days after “(i) entry of either the judgment or order being appealed, or (ii) the filing of the government’s notice of appeal.” Under Rule 4(b) (4), the district court possesses the discretion to waive filing deadlines up to thirty days upon a showing of “excusable neglect.”
A FEDERAL APPEAL IS NOT A “DO OVER” OF YOUR TRIAL
Spawned by a number of different venues, there is a popular misconception that an appeal is a “do over” of the trial. Nothing could be further from the truth. A federal appeal is a very narrow, rigid process that only considers issues preserved by proper objection or contained within the trial record.
First, a federal appellate court will generally review only those issues to which a timely, very specific objection has been made by defense counsel at or before trial or sentencing. This is known as the “contemporaneous objection” rule. This rule is critically important if a defendant has any hope of securing a “second chance” on appeal. The rule is codified in Federal Rule of Criminal Procedure 51(b) and Federal Rule of Evidence 103(a) (1).
There are three exceptions—one general, two specific—to the contemporaneous objection rule. First, “if the party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party.” Second, an objection is not necessary when the trial judge testifies as a witness. Third, when a judge calls or examines a witness, an objection is not made until “the next opportunity when the jury is not present.”
The failure to strictly adhere to the contemporaneous objection rule will result in any claimed error being reviewed under the demanding “plain error” rule provided under Rule 52(b) of the Federal Rules of Criminal Procedure. Under the plain error rule, the defendant bears the burden of showing (1) there was an error, (2) that the error is clear and obvious, and (3) the error affected defendant’s “substantial rights.” Even if a defendant satisfies these three prerequisites, a defendant will be granted relief only if the appeals court determines that the error “seriously affect[ed] the fairness, integrity, or public reputation of the judicial proceedings.”
THE ANDERS REQUIREMENTS
In 1967, the U.S. Supreme Court in Anders v. California spelled out the obligations a defense attorney owes to his client after the filing of a notice of appeal if the attorney believes there are no issues upon which an appeal can be based and, thus, an appeal would be “wholly frivolous.”
First, an attorney must file a notice of appeal when requested to do by the defendant even if he or she determines an appeal would be frivolous.
Second, this obligation exists even if the client has signed an appeal waiver giving up his right to appeal.
Third, even if an attorney believes an appeal is frivolous, the attorney must submit what is known as an “Anders brief” to both the court and the defendant requesting permission to withdraw from the case while simultaneously “referring to anything in the record that might arguably support the appeal.”
Fourth, the appeals court, not the attorney, upon full examination of the record, determines whether an appeal is wholly frivolous. If the court makes such a determination, it may grant the attorney’s request to withdraw and dismiss the appeal, or proceed to a decision on the merits. However, if the court determines that the appeal has merit and is not frivolous, it must provide an indigent defendant with an attorney to argue the appeal.
An Anders brief should be the last, not the first, resort by counsel. An attorney owes to his client a duty to thoroughly research the law and facts relevant to the case and file a non-Anders brief, even on issues upon which he or she has little chance of winning on appeal, provided the issues are at least arguable.
A FEDERAL APPEAL IS NOT A SPEEDY PROCESS
It is difficult for a defendant convicted of any crime and facing imprisonment, especially when the defendant has been wrongfully convicted, to accept that federal appeals move at a glacial pace. It will generally take at least one year before a final judgment is entered on appeal.
Most cases on appeal are decided on briefs, i.e., they are decided without oral argument to the court. Only 12 percent of the cases on appeal receive oral argument. Nearly one half of all appeals are dismissed on procedural grounds or because they are settled before decision. And only 29 percent of those cases fully briefed actually proceed to oral argument. In the Fifth Circuit, oral argument occurs generally in about 12 months after the filing of the notice of appeal.
These time-delay issues should be thoroughly explained to the defendant by counsel. An attorney’s power to persuade an appeals court to his side is confined to prevailing case law and facts contained within the record of the trial court, and the attorney’s power to move the appeals process at a speedier pace is virtually nil.
If you are considering filing a federal appeal, we would like to hear from you. It is essential that you have an experienced, knowledgeable appellate attorney who understands both the law and the appellate process necessary to give you the best chance at obtaining a favorable result.