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Filing a Federal Criminal Appeal
Tuesday, March 21, 2023

Regardless of the sentence imposed, federal criminal convictions can have life-altering consequences for individuals, and they can lead to substantial financial and reputational losses for companies and firms. While it will often be possible to avoid a conviction in trial court with a strategic and proactive defense, in some cases the cards will stack up in the government’s favor.

For individuals and companies that are facing the consequences of a federal criminal conviction, it is important to quickly evaluate the possibility of filing an appeal in federal court. Federal criminal convictions—and sentences—are subject to appeal on various grounds. Successful federal criminal appeals can have various potential outcomes, from remanding the case for retrial (which may provide leverage for plea deal negotiations) to reversing the decision of the trial court and vacating its judgment. 

All defendants that receive guilty verdicts in federal district court should promptly consult with experienced counsel about the possibility of filing an appeal. While an appeal will not be an option in all cases, defendants that have grounds to challenge their conviction or sentence can—and should—continue fighting for a just outcome.

10 Questions About the Federal Criminal Appeals Process

What do you need to know about pursuing a federal criminal appeal if you (or your company) have been convicted or sentenced? 

What Are the Grounds for Filing a Federal Criminal Appeal? 

There are several potential grounds for filing federal criminal appeals through federal courts. However, it is important to understand that a federal criminal appeal is not simply a second chance to challenge the government’s evidence against you. In other words, an appeal is not a retrial. Rather, in federal criminal matters, an appeal must be based on an error during the trial court proceedings that led to an unjust result. 

For example, if the judge improperly allowed the U.S. Department of Justice (DOJ) to strike jurors during the voir dire process, this could justify an appeal. Similarly, improperly excluding or admitting evidence could provide grounds to challenge your conviction on appeal. Ruling incorrectly on pre-trial or trial motions, improperly assessing the weight of the evidence, and imposing an unconstitutional sentence can provide grounds for federal criminal appeals as well. 

Will a Successful Appeal Result in Your Conviction Being Overturned?

A successful appeal might result in your conviction being overturned, but this is not necessarily the case. In some cases, a successful appeal might result in a remand or retrial—which could still ultimately lead to a conviction. When conducting the cost-benefit analysis for a potential appeal, it is imperative to assess the likelihood of the various potential outcomes and make an informed decision about how (and if) to move forward. Keep in mind, however, that even if an appeal results in a remand or retrial, this will minimally delay the imposition of any sentence ultimately handed down; and, as noted above, it may provide leverage for negotiating a deal that mitigates the consequences of your (or your company’s) prosecution. 

If You Can’t Challenge Your Conviction, Can You Challenge Your Sentence? 

Federal criminal appeals can focus on errors during the pre-trial phase, during trial, or during sentencing. If the judge allowed the DOJ to present inadmissible evidence during your (or your company’s) sentencing hearing, or if the sentence handed down violates the Federal Sentencing Guidelines or your protections under the Eighth Amendment, you may be able to challenge your sentence at the U.S. Court of Appeals. Depending on the circumstances at hand, this could either be in to or in lieu of challenging your (or your company’s) conviction. 

What If You Don’t Have Grounds (or It Is Too Late) to File an Appeal?

If you do not have grounds to file an appeal, this does not necessarily mean that your conviction and sentence have to stand. The same is true if you have waited too long to engage counsel to evaluate the possibility of filing an appeal. While your options in this scenario will be more limited, you may still be able to challenge the outcome of your federal criminal case through a petition for post-conviction relief. 

What is the Difference Between an Appeal and a Petition for Post-Conviction Relief? 

While appeals and petitions for post-conviction relief share similar purposes from a defense perspective, they are very different proceedings. First, while appeals are filed in the U.S. Courts of Appeal, petitions for post-conviction relief are filed at the federal district court level. Second, whereas appeals focus on legal errors made during pre-trial, trial, or sentencing, post-conviction cases focus on violations of the defendant’s constitutional rights (i.e., the right to protection against surprise evidence and the right to effective assistance of legal counsel). 

Importantly, it is also possible to file a petition for post-conviction relief after an unsuccessful appeal. If you have exhausted your appellate options to no avail, the next step in fighting the outcome of your federal criminal case may be to consult with an attorney about filing a petition. 

What Are the Steps in the Appellate Process for Federal Criminal Cases?

There are several steps in the federal criminal appeals process. Navigating the process successfully requires a systematic (and timely) approach, and a defendant’s appellate lawyers must be both intimately familiar with the Federal Rules of Appellate Procedure and highly experienced in all aspects of federal appellate practice. Broadly, some of the major steps in the process include

  • File a Notice of Appeal – In federal criminal law cases, the criminal defendant has 14 days to file a notice of appeal of the guilty verdict in order to preserve their appellate rights. 

  • Evaluation of Grounds for Appeal – While the notice of appeal is a fairly simple filing, from here the process becomes much more complicated. Defendants must work with their counsel to assess all potential grounds for an appeal and formulate an informed and cohesive appellate strategy. 

  • Briefing and Motions – The opening brief is crucial in federal criminal appeals. It must be carefully drafted to identify and address all pertinent issues, and it must set the stage for an effective oral argument. Appellate counsel may need to draft a reply brief and various other filings as well. 

  • Oral Argument – In federal criminal appeals, both parties present their legal arguments or cases at an oral argument in the U.S. Court of Appeals for the appropriate circuit of federal circuit courts. This requires persuasive advocacy skills that are entirely unlike those used at the trial stage. 

  • Post-Hearing Matters – Once the appellate court renders its decision, the defendant and its counsel may need to deal with various post-decision matters. Depending on the outcome of the appeal, these could include filing a petition for rehearing or rehearing en banc, filing a petition for post-conviction relief, or filing a writ of certiorari with the U.S. Supreme Court.

This is a highly simplified version of the process. There are many intermediate steps, and pursuing a federal criminal appeal entails numerous intricate, detailed, and nuanced considerations. The rules for federal criminal appeals vary between circuits as well, and appellate counsel must be well-versed in the circuit’s rules to avoid costly (and potentially embarrassing) mistakes. 

How Do You Know If You Have Grounds to Appeal Your Federal Conviction or Sentence? 

Assessing the grounds for appealing a federal conviction or sentence requires a thorough review of the trial record. What errors did the court make (if any)? When did the court make these errors? Did they have a prejudicial effect on the outcome of your case? Did your trial counsel preserve the issue for appeal? These are just some of the questions that your appellate counsel will need to address when determining the viability of pursuing an appeal. 

Should You Hire Your Trial Defense Attorney for Your Federal Criminal Appeal?

Whether you should hire your trial defense attorney for your criminal appeal also depends on the circumstances. Does your trial defense attorney also maintain a robust appellate practice? Is there a chance that you will need to point to deficiencies in your legal representation during your appeal or the post-conviction process? While continuing to work with your trial counsel can make sense in some circumstances, it will often make more sense to engage a new attorney for your appeal due to the unique considerations involved. 

What Are the First Steps for Pursuing a Federal Criminal Appeal?

While the federal appellate process is highly complex, the first steps for defendants are actually fairly straightforward. The key at this stage is to act quickly, as failing to file a notice of appeal by the deadline can result in loss of the defendant’s appellate rights. To get started, defendants should engage counsel promptly, and they should work with their counsel to identify errors that may provide grounds for an appeal. 

What If the Appellate Court Upholds Your Conviction or Sentence?

If your appeal in the federal appellate courts proves unsuccessful, this is not necessarily the end of the process. Defendants can ask the United States Supreme Court to review their case; and, as discussed above, filing a petition for post-conviction relief may be an option as well. 

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