Solomon L. Wisenberg is a partner and co-chair of the white collar criminal defense practice group of Nelson Mullins Riley & Scarborough, LLP.
I have been representing clients in white-collar and other federal criminal sentencing for over 25 years, and it never ceases to amaze me how many people, laypersons and attorneys alike, are often mystified by this strange process. Why are federal criminal appeals so difficult to understand? Because federal appellate courts are deliberately designed to be cordoned off from criminal defendants, their attorneys, and the public at large. Federal appellate judges and their staffs work behind closed doors, except for the oral arguments that are held every week, month, or several times a year, depending on the court. Why the distance from the public? That’s just one of the things I seek to explain in this article: “Federal Criminal Appeals: 10 Things You Should Know.”
The purpose of this article is to answer some basic questions that clients, and even attorneys with limited or no experience with federal criminal appellate practice, might have. I realize I can’t answer every question in this article, nor can I give legal advice; however, I can provide answers to the questions most frequently asked by my clients, and prospective clients, over the years.
1. Federal Criminal Appeal Is Not a Retrial or Rehearing of the Evidence.
Let’s start with the most common misperception about federal criminal appeals: that an appeal is a chance to re-open the facts developed at trial. It is not. An appeal and a trial have virtually nothing in common.
So, what exactly is a federal criminal appeal? A federal criminal appeal, or specifically a “direct appeal” is a legal proceeding in which the judgment or order of the court (usually a district court) is attacked on some legal ground or grounds. As stated above, a federal criminal appeal is not a retrial or a rehearing of the evidence received in the district court. Instead, it is a proceeding, which “takes place” almost entirely in writing, in which attorneys for each side file briefs raising and responding to legal errors alleged to have taken place in the district court .
Unlike district courts, appellate courts are not courts “of record.” There are no official court reporters, no witness stands, and no juries. Appellate courts generally do not receive “evidence” or testimony per se; they consider and resolve legal arguments after the facts of the case have already been received in the district court. In many instances, the documents and the physical items that were taken into evidence in the district court are literally transported to the site of the appellate court so that the appellate judges can examine them as the court considers the legal arguments. But, strictly speaking, the appellate court does not receive any new evidence.
As I often tell my clients, the factual record of a case is already virtually “set in stone” when it arrives at the court of appeals. Very little, if anything, can be done to change the record that will be considered by the court once the appeal is underway.
2. “Notice of Appeal” Is Not the Same as an Appeal.
Another misconception about federal criminal appeals stems from confusion between a document known as a “notice of appeal” and the appeal itself. The two are vastly different. The notice of appeal is a very short (one or two page) document that simply notifies both the district court and the appellate court of a party’s intention to appeal. Generally speaking, in the federal system, this notice must be filed within ten days of the entry of the judgment or order being appealed from.
Often, I receive calls from panicked litigants or their family members stating that they must hire a lawyer right away because “we’ve heard the appeal has to be filed in ten days.” On the one hand, there is no reason to panic, because only the notice of appeal must be filed in that short period. On the other hand, if it is day nine and a qualified appellate lawyer hasn’t been hired, quick action will be required. Most appellate lawyers won’t file a notice of appeal unless they have been formally retained, because the workload increases exponentially on these cases from the date the notice of appeal is filed.
A word of caution: don’t wait until the last minute to determine if you will appeal. Consult with, and hire, an experienced federal criminal appellate attorney in a timely fashion. It is also worth noting that, if the deadline approaches and you haven’t engaged new counsel, the lawyer who represented you in the court below is ethically obligated to help you preserve your appellate rights, even if she has no intention of representing you on appeal. She can do this by filing the notice of appeal for you, or by preparing a pro se notice (a notice that you file on your own) for you, and assisting you in filing it in the appropriate court.
And finally, if all else fails, there is always help on the internet. Google “federal notice of appeal” and you will find forms for notices of appeal that will work. Whatever you do, don’t let the ten-day deadline expire because it is very difficult to overcome the failure to file a timely notice of appeal. Filing a notice of appeal is essentially a simple task. Even if you are not entirely certain you want to appeal, you should file this simple notice. It can be dismissed later if you change your mind.
3. Federal Criminal Appeals Are Generally Slow.
If immediate results are your thing, you will probably be frustrated by the federal criminal appellate experience. Generally, federal criminal appeals take many months, if not a year or more. Why? The federal courts are crowded, and the process of an appeal is, by its nature, slow. The courts, for the most part, consider each case and each legal claim individually, which takes time. Technology has helped speed up parts of the process in recent years. Many courts now accept briefs electronically, and legal research is primarily performed on computer rather than in the law library.
But no technology can make the central task of the appellate process go faster. The process requires that individual judges read, research, and consider the arguments. Judges are obviously human beings, and human beings can only work so many hours a day. To be sure, federal appellate judges have staffs of clerks and assistants to help them, and many courts also employ large groups of attorneys, called staff attorneys, who process the more routine cases and present them in truncated form to the judges. Still, the bottom line is that people are handling your appeal, and they are handling hundreds of others too, so it takes a while to resolve these cases.
The slow nature of the federal criminal appeals process is a fact of life. I’ve been dealing with this fact of life for the balance of my career. I’ve observed that clients are generally amazed-even after I’ve warned them from the start regarding the slowness of the process-how long these cases take. It is important, however, for the development of American jurisprudence, that every case be carefully researched and considered. After all, our legal system is based on the development of precedent, so the research that goes into a particular decision is the most critical part of every case. The process simply takes time.
When I tell clients the process is slow, they want to know just how slow. The Administrative Office of the U.S. Courts produces detailed annual statistics of each federal court’s caseload. You can check out those numbers at http://www.uscourts.gov/cgi-bin/cmsa2007.pl These statistics reveal that cases on appeal in the federal system generally take right around a year. If you are in a big rush, you have the best chance of a “quick” decision if you happen to be in the Fourth Circuit, which covers Maryland, North Carolina, South Carolina, Virginia and West Virginia. In 2007, the Fourth Circuit’s median time for the “life” of an appeal (from notice of appeal to decision) was 8.8 months. The slowest of the 12 federal circuits in 2007 was the Ninth Circuit, which covers California, Nevada, Washington, Oregon, Idaho and Montana, where the median time for resolution was 17.4 months.
4. The Vast Majority of Appeals Are Resolved “On the Briefs.”
According to the U.S. Courts’ statistics, 74 percent of federal appellate cases nationwide were resolved without oral argument in 2007. In other words, 190 of the cases in the federal appellate system were resolved “on the briefs.” So, the brief is likely the most important part of the appeal. But what is a brief?
A brief, or more specifically an opening brief or principal brief, is a written document filed by the appellant (the party appealing) that provides the court with an objective (non-argumentative, evenhanded) rendition of the facts of the case, followed by a persuasive (argumentative, subjective) argument of the specific legal errors that are alleged to have been committed in the district court. Each factual assertion in the brief must be followed by an exact citation to either the transcript of the proceedings or a piece of evidence that was admitted in court, and each legal argument must be supported by a citation to a previous case, statute, or constitution that provides authority for that argument.
After the opening brief is filed, the responding party, called the appellee (in a criminal case the appellee is typically the government) files a responsive brief, which contains a statement of the facts (presumably objectively written as well) and answers to each argument asserted in the opening brief. Like the appellant, the appellee is also obligated to support factual assertions with citations to the transcript or other evidence and to support legal arguments with citations to cases.
Finally, in most courts, the appellant has the opportunity to file a reply brief to answer the appellee’s responsive arguments. These three briefs-the opening, responsive, and reply briefs-make up the briefing requirements in most federal cases. Specific filing deadlines apply to each brief and each federal appellate court also has stringent technical requirements regarding formatting, binding, fonts, paper size, etc.
Because our legal system is based on stare decisis , the principle that the decision in previous cases governs the decision in the current case, the most critical part of any appeal is the quality of the research that goes into fashioning and making the arguments on appeal. Creative arguments definitely have their place. But if a federal criminal appeal presents an extremely creative argument that finds no support in past decisions, it is likely to fail. So an appellate lawyer must be up on the law and must have excellent research and writing skills.
Creativity with the law in a federal criminal appeal is one thing. Creativity with the facts will never be appreciated or tolerated by the appellate court. In fact, it is the kiss of death. Most appellate judges either read the entire trial transcript or have a staff member read it, so loose or inaccurate treatment of the facts will come back to haunt the litigant in a federal appeal. But creativity in determining what issues should be raised, and how particular points should be argued, is quite important. A successful appellate lawyer stays true to the facts, but presents the arguments in a compelling and persuasive manner. Legal research is also a tremendously important trade that must be learned and honed by a lawyer who seeks to argue appeals, particularly in white collar cases.
Clearly, the appellate briefs are the most important part of the appeal, so to be successful, appellate counsel must be experienced and well versed in legal research, persuasive legal writing, and in meeting the technical and time requirements of the court.
But, there are a few more important aspects to an appeal as well.
5. You Want Your Case to Be Orally Argued.
As stated above, most federal appeals are decided without any in-person contact with the court. That means the briefs are filed, a period of time passes, and a decision arrives by email or mail.
As an appellate lawyer, this is not what I want for my clients. I have, in my career, won appeals without oral argument, but that is not the norm. Especially in federal criminal cases, the judges will likely have many questions about the facts, the law, or both, before they reverse a conviction or sentence. I want every possible opportunity to argue my case and persuade the judges that the conviction must be overturned. Oral argument is one more opportunity, and a crucial one, to convince the judges of the correctness of your position.
You notice I am making reference to “judges,” not merely “the judge.” This is because nearly all appellate cases are decided by multiple judges who sit on panels. Normally, the panel is made up of three judges, although it can be more or less.
There are many things appellate counsel can do to encourage the court to grant oral argument, but clearly the most important is to write an excellent brief that raises compelling legal issues. Once that has been accomplished, and oral argument has been granted, other skill sets kick in. The best appellate lawyers are not only great writers and researchers, but they are also talented oral advocates who engender the court’s respect by presenting their cases professionally and credibly.
As stated above, the appellate court is distinct from the district court in many ways. Most federal courts are rather formal, but the appellate courts are even more so. The appellate courts require a somewhat rigid formality and decorum from the very moment you walk in the door. Many of these courts are located in historic courthouses and courtrooms; the three judges sit at a raised bench quite a distance from the attorneys and the gallery, and the attorneys address the court in the most formal manner, never leaving the podium unless granted permission to do so.
The appellate courts often begin their oral argument sessions with stern instructions to counsel regarding what is and is not acceptable. Oral argument is normally strictly limited by time. Each party typically has 20 to 30 minutes to present argument, depending on the court’s rules. Often times, the oral argument is not a presentation by counsel, but is a question and answer session wherein the individual judges ask counsel to point to a certain part of the record, or a particular past decision, to support an argument or assertion. Obviously, total mastery of the entire record, and the relevant questions, is essential. The courts generally do not inform counsel ahead of time as to which particular argument interests them. So, counsel must be prepared on everything in the brief.
Oral argument is often very lively and interesting. Rarely does the panel see fit to defer to counsel who is inexperienced or unprepared. To the contrary, the inexperienced lawyer will be counting the seconds until the red light indicating the end of his time has arrived. Experience is key in this arena.
6. The Little Things Count On Appeal.
Procedural details are important in criminal appellate practice. In 2007, I represented a client in a multi-appellant federal appeal in which, one by one, the court’s clerk returned each of the other co-appellant’s briefs to their respective attorneys for failure to comply with the court’s technical filing rules. One had filed a brief with the wrong color cover, another brief was bound wrong, and another failed to file the required record excerpts.
Federal appellate courts have strict technical requirements, and they are extremely serious about them. The already lengthy criminal appellate process is made even more lengthy by errors that might seem miniscule to some. Meanwhile, the client and his family wait for the appellate court’s decision, their lives on hold. The story above is an example of a really little thing-a technical requirement-that affects a big thing-the client’s life.
Perhaps more importantly, knowing the rules and technical requirements of filing briefs and pleadings demonstrates attention to detail and therefore respect for the process. The appellate courts are generally staffed by dedicated professionals who are responsible for making sure that the cases are submitted to the judges in correct form. Garnering the respect of the court and the court staff is important; showing respect for the rules and process is a big step in that direction.
You never get a second chance to make a first impression. I believe wholeheartedly that little things mean a lot in the world of criminal appeals. Most appellate judges read briefs and do research for hours every day. Their law clerks, who often wield tremendous power, tend to work even harder. Small things that are wrong with a brief, even technical errors, can be very irritating at the end of a long day. Conversely, a clear, concise argument that is easy to read and digest, and error-free, will be even more well-received at day’s end. Your brief is the first important document that the judges and their clerks will read. It needs to be spot-on perfect.
Simply put, a great appeal requires workmanship.
7. Appeals Can Be Costly.
Generally, the lengthier the district court proceedings and the more complex the case, the higher the cost of litigation will be. This analysis applies to federal criminal appeals. Lengthy trial transcripts and thousands of pages of documentary evidence take more time to read and process, and normally yield more potential appellate issues that must be researched. More attorney and staff hours translate into higher fees.
Although it is impossible to say what an appeal costs in general, it is safe to say that an appeal from a plea and sentencing in a relatively simple case would cost substantially less than an appeal from a four-week, complex white-collar jury trial. It is also difficult to predict how much time appellate counsel might spend on tasks other than reading the record, researching the law, and writing briefs. For instance, in one of our firm’s recent appeals, substantial, and thus very time-consuming, proceedings were required in the district court due to a dispute over an apparent error in the trial transcript on a critical issue. Without resolving the dispute, the appellate court could not reliably decide the appeal. However, as explained above, appellate courts are not courts of record and do not receive or process evidence. Thus, the case had to be remanded to the district court, where a hearing was held and the trial judge determined the outcome of the dispute. Needless to say, this was an extremely time-consuming and costly detour that no one could have predicted at the outset.
On the other hand, expenses (those costs other than attorney and staff time), are relatively predictable and can be estimated with ease by experienced appellate counsel. The current filing fee for a federal criminal appeal is $455. This fee, which is normally paid in the district court at the inception of the case, is uniform nationwide. Perhaps the largest expense in most appellate cases is the cost of the transcript. Some federal district courts use privately-employed court reporters, while others have official court reporters who are employees of the court. However, there is not much variation in the cost-per-page. This is normally rather a large expense, however, so it is worth a call to the court reporter to determine the cost ahead of time. Most court reporters can provide a fairly reliable estimate. Generally speaking, the transcript for a jury trial that lasts for 5 days can easily be in the range of $4,000 to $5,000. Again, the cost depends on a number of factors, including the applicable cost per page of the transcript, and how many hours of testimony took place each day.
Another very large expense in some cases and some courts is what is called the “appendix.” Some federal appellate courts actually receive the entire district court record as a matter of course-it is loaned, at no or little cost, by the district court to the appellate court. However, in other federal circuits, the litigants must actually provide copies (often times multiple copies), of the portions of the district court record that they want the court to consider in resolving the appeal. The courts generally require the appendix to be provided in a certain format, for instance two-sided pages, bound, indexed, paginated, and so on. So, if you can imagine a several-week trial that produced thousands of pages of transcript, and assume that the appellant is challenging the sufficiency of the evidence, the entire transcript (and documentary exhibits) would need to be copied, indexed, paginated, and bound. Multiple copies of this large document would then need to be shipped to the court. As you can see, this process can easily cost many thousands of dollars. Other courts require multiple copies of “record excerpts,” which are excerpts from the record containing items that the parties deem critical to determining the issues on appeal. The costs of producing record excerpts are often substantially less.
On the other hand, some federal appellate courts have now embraced the technology that allows electronic filing of briefs and other pleadings. In these jurisdictions, the costs of producing and shipping paper briefs and pleadings have all but disappeared. Right now, these factors vary greatly from federal circuit to circuit. However, it is safe to assume that as time progresses, more and more federal courts will move to electronic filing.
The budget for most appeals should include travel funds for counsel to attend oral argument if necessary. Assuming oral argument is held in the morning, counsel would likely prefer to travel the evening before, spend the night, and not leave it to chance as to whether an airplane or train might be late. Oral argument in a federal court is a command performance. It is best for your lawyer to be well rested and on time.
Many attorneys, particularly white-collar criminal defense attorneys, prepare for oral argument by conducting “moot courts.” These are practice sessions where fellow attorneys read all of the briefs, yours and the government’s, and pretend to be the appellate judges. These pretend judges then pepper your lawyer with just the kind of difficult questions he is likely to receive when he argues the real case. The moot court sessions mimic what actually goes on in the federal circuit courts. Moot courts can be invaluable in preparing your lawyer for oral argument. But beware: the costs for this service can add up. If cost is an issue for you, make sure to find out whether moot court preparation is included in your lawyer’s cost estimate.
Clients have often exhausted substantial financial resources at trial before even considering the need for an appeal, much less the cost. My firm is often called upon to provide estimates of its fees and expenses pertaining to a particular case. Although some guesswork is involved (things happen on cases that simply cannot be predicted), an experienced federal criminal appellate lawyer should be able to provide a proposed budget upon request. So don’t hesitate to ask.
8. Appeals Live and Die By What Happened In the District Court.
You’ve seen it on television courtroom dramas countless times: “Objection, Your Honor!” The judge says “sustained.” The trial attorney puffs out his chest and the trial moves along. This works well for television, but not so well in the real world. In the above example, the evidence or argument that counsel objected to has already been heard by the jury and may have harmed his client. If the client wishes to challenge this on appeal, the appellate court would quickly decide against him. Why? Because the error was not properly “preserved.”
Preservation of error for appeal is a concept lost on many lawyers, much less their clients. It is sometimes difficult to understand. The basic idea is that the district court must have a fair opportunity to correct error, at the time it occurs, before the appellate court will consider correcting it. In the simplest of terms, if counsel does not object to error in a timely fashion, and state a specific ground or basis for the objection, she has, in essence, failed to give the court an opportunity to correct the error at the time it occurred. Thus, the failure of trial counsel to specifically and timely object to evidence or improper argument is an age-old reason for appellate courts to decline to correct error. This concept, sometimes called waiver, makes sense. After all, the appellate court is there to correct mistakes made by the district court. If the district court wasn’t presented with a timely and correct objection, it didn’t have a chance to rule on the error, so there is no mistake to correct.
In the TV example given above, however, the failure to state the specific grounds for the objection is not the real problem. As mentioned earlier, the objection was sustained, meaning that the objection was correct and the evidence, whatever it was, should not have been admitted, but the jury has still heard the harmful material and may be prejudiced by it. In this scenario, trial counsel must continue to object until she receives an “adverse ruling.” If the objection is sustained, she must ask the court to strike the testimony. If her motion to strike is denied, she has received a ruling against her, and the error is considered preserved for appellate purposes. However, if counsel’s motion to strike is granted, and the evidence is deemed stricken from the record, she has not received an adverse ruling. Counsel should then request that the jury be instructed to disregard the evidence. If the jury is so instructed, then (in order to obtain an adverse ruling and preserve the matter for appeal) she must make a motion for mistrial. Assuming the request is denied, the error has been properly preserved. This is the most simplistic of examples; questions regarding whether a particular error is properly preserved can consume an appeal as they become less black and white and considerably greyer.
But, as you can tell, appeals live and die by what happens in the district court, and specifically by the skill and acumen of trial counsel. A truly gifted trial attorney can preserve error without offending the court or appearing unduly obtrusive to the jury. Many attorneys simply are not thinking of preservation for appellate error while in the throes of a trial. Unfortunately, I’ve seen a number of viable errors over the years waived by lawyers who believed the error was flawlessly preserved. They are often surprised when the appellate court disagrees.
9. You May Not Want What the Appellate Court Has to Give.
You’ve heard the adage many times: be careful what you ask for, you just might get it. Many prospective clients erroneously believe that, if they win on appeal, the case is over. This happens, but only rarely.
The relief warranted by a particular appeal, if any, depends on the specific issue raised in the first place. Generally speaking, if the appellant challenges the sufficiency of the evidence (whether the government proved each and every element of the offense) and wins, the relief is essentially an acquittal. Technically, the appellate court vacates the conviction and directs the district court to acquit the defendant and dismiss all charges. This happens, and I speak from experience when I tell you that it is quite thrilling when it does. However, it is very rare.
Most appeals assert what are called “trial errors.” These types of errors include admission of evidence contrary to the rules of evidence, procedural violations, improper argument, and error in instructing the jury. If such errors cause a reversal of the conviction, the relief afforded the victor is a new trial. Thus, upon winning on appeal, the defendant stands in the same position as he was in prior to trial, normally facing the same charges in the same court. While a new trial is nothing to sneeze at, if you are reading this article, you have likely endured a trial or substantial district court proceedings already. In essence, a new trial in most cases means you are starting all over again. Of course, things may go differently the second time around-the government could even choose not to try the case again for whatever reasons. Or, a better plea offer might be forthcoming after a win on appeal. But in many cases, the exhausting process simply starts over again. The potential for this outcome is something to consider before embarking on the meandering course of an appeal.
It is also worth noting that some appeals, for instance the appeal of a motion to suppress evidence, may, if won, result in the suppression of evidence that was critical in gaining the conviction. In this instance, victory might really mean the end of the case if the government believes it cannot secure a conviction on re-trial without the evidence. Of course, this would be on par with the acquittal in almost every respect-a true victory indeed.
Still, understanding all the possible outcomes of an appeal is very important to determining whether an appeal is something you want to pursue.
10. Losing an Appeal Is Not the End of the Line.
In the world of post-conviction proceedings, we think of direct appeal as the beginning, rather than the end of the line. Depending on the case, there are many other post-conviction proceedings that can take place, even after the direct appeal has been decided. Each federal appellate court has its own procedures for such things as petitions for rehearing-a request to reconsider the decision on direct appeal-and petitions for rehearing en banc-a request that the full court, rather than a panel of three judges, hear the appeal.
You may have also heard the Latin term “habeas corpus.” This term, literally meaning “give us the body,” is an extraordinary procedure that often follows the direct appeal in criminal cases. This can and should be the topic for a completely separate article, because this procedure is, in fact, a completely separate lawsuit that is filed by a litigant who seeks to challenge the legality of his detention by the government, either state or federal.
In this context, it is sufficient to make you aware that further additional proceedings exist to challenge criminal convictions in federal court. These proceedings have very specific and strict time deadlines, so if you have a question as to whether you have the right to challenge a conviction or sentence using a procedure such as habeas corpus, you must rapidly consult with a knowledgeable and experienced attorney who can answer your questions today, rather than tomorrow. Congress has, in recent years, taken significant steps to prevent litigants from filing “endless appeals and petitions.” Thus, these deadlines are true roadblocks to pursuing what may otherwise be viable legal remedies.
Conclusion
I often tell my clients that even a good appeal with well defined issues is a long shot. The current statistics support me in this assertion. According to the Administrative Office of the U.S. Courts’ 2007 numbers, a mere 5.6 percent of federal criminal appeals nationwide resulted in reversals. Separate statistics for white-collar criminal appeals do not exist, but it is safe to assume that the reversal percentage for those cases is slightly higher. Given the depressing nature of these statistics, choosing the right lawyer-one who will critically and exhaustively examine the trial record, recognize and raise the most viable issues, support these issues with excellent research and writing, and argue them in the best possible way–is a critical decision. Never hesitate, when interviewing attorneys, to ask about their specific experience handling federal criminal appeals, as this is an area of specialization and experience too technical and detailed for a lawyer engaged in a general practice. In the same way that you would never choose to have brain surgery performed by a pediatrician, you should not be represented on appeal by a lawyer who does something else for a living.
Another important question to ask is whether the particular lawyer you are considering will actually read the record and write the appeal himself. Many attorneys seem to believe that it is okay to hire a clerk or junior lawyer to do the detail work and then simply perform the final work on the brief, file it with the court, and do the oral argument. This presumes that the clerk or junior lawyer knows and understands how to extract viable issues from the record and how best to present them to the court. As explained above, the tasks of reading the record and doing the research to determine how best to present the arguments are the meat of the work on an appeal. So, determining whether the attorney you have chosen will actually do this important work is paramount. Clerks and junior lawyers have their place and can perform essential tasks. But the buck has to stop somewhere. Make sure you know which attorneys are doing what work on your federal criminal appeal. After all, it is your liberty at stake.
After reading this article, you probably know more about federal criminal appeals than most lawyers. Hopefully, it has answered some basic questions (although it can’t, and does not seek to, answer them all), and has allowed you to think clearly about whether appealing is a viable option for you.
By Solomon L. Wisenberg
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