Written by Brandon Sample
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This article was first published in 2020. The law may have changed since then.
If you or a family member was just convicted or sentenced in federal court, you may be wondering whether an appeal can undo it. An appeal can fix legal errors, but it is not a new trial, it usually takes a long time, and the first deadline comes fast. Here is what to expect, and what to know when you work with a federal appeals lawyer.
TV shows like Law and Order and movies like A Few Good Men are built on courtroom drama. When most of us picture a court case, we think of lawyers arguing to a jury, or a witness on the stand having a "Perry Mason moment." Real federal appeals are much quieter than that.
Trials are about emotion and storytelling. Appeals are about the law. An appeal is a legal conversation between the lawyers and a panel of appeals judges. Even so, an appeal can have as much effect on the final outcome of your case as the trial, or more.
How long do you have to file a federal appeal?
Not long. Under Federal Rule of Appellate Procedure 4(b)(1)(A), a defendant must file a notice of appeal within 14 days after the judgment is entered. The notice is a short paper that tells the court you are appealing.
The district judge can extend that deadline by up to 30 days, but only for good cause or excusable neglect. Do not count on it. If you miss the deadline, you can lose the appeal.
What to gather now: a copy of the judgment (the court's written order that lists the conviction and the sentence) and the case's docket number (the case number on the court's record). If you have access to the PSR, the presentence report the probation office prepared for sentencing, keep track of that too. An appeals lawyer will need this information right away to confirm the deadline and start reviewing the case.
Can you retry your case on appeal?
Many people think an appeal lets them re-argue every issue the trial judge decided against them. That is not what an appeal is for.
An appeal is a legal argument made to a panel of appeals judges. There are no witnesses, no jury, and no opening or closing statements. Instead, your lawyer points to specific errors made in the trial court and argues that those errors justify a new trial or other relief. The appeals court looks at the record, meaning the transcripts and papers from the trial court.
For example, say the trial judge let the government show the jury a piece of evidence, such as a forced (coerced) confession, and overruled your lawyer’s objection. That ruling is something your lawyer can appeal. On appeal, the argument would be a legal one: why the confession should have been kept out. Other common issues include wrong jury instructions. A sentence can also be appealed, for example if the judge applied the sentencing guidelines wrong. That right comes from 18 U.S.C. § 3742.
Most important, appeals courts accept the facts found at trial. The facts from the trial are basically "set in stone," and new facts come into an appeal only in extremely rare cases.
Problems that were not raised in the trial court are harder to win. The appeals court will usually fix them only if the error was “plain” and affected your substantial rights, under Federal Rule of Criminal Procedure 52(b).
How long does a federal criminal appeal take?
If you are thinking about an appeal, expect it to take a long time, often a year or more. Timing varies by circuit and by case. The slow pace can be frustrating, but it is part of the process.
Why is it so slow? A federal appeals court usually has hundreds of appeals waiting to be decided at any one time. Appeals involve technical legal arguments that must be researched and considered one by one, and judges need time to make a careful decision in each case. Appeals judges do have law clerks and staff, and electronic filing has sped up some of the paperwork. But nothing replaces the careful thinking each appeal needs.
So as you and your lawyer work on the appeal, plan for a long process.
Will there be an oral argument, and should you ask for one?
Most federal appeals are decided without an oral argument. Instead, each side files a brief, which is a written legal argument. The appeals court then decides the issues without hearing from the lawyers in person. This is called deciding a case “on the briefs.” By one estimate, nearly 75% of all federal appeals are decided this way.
Under Federal Rule of Appellate Procedure 34(a), a three-judge panel can decide a case without oral argument if all three agree it is not needed, for example because the briefs and record cover the issues well.
But you can ask your appeals lawyer to request oral argument, and your lawyer can file a statement explaining why argument would help. At oral argument, a lawyer for each side gives a short presentation to the panel of judges and answers their questions. This can make your case more persuasive. Not always, but sometimes, oral argument affects the court's final decision.
Can you be found not guilty on appeal?
You may feel that once a new court looks at your case, it will find you not guilty. That is usually not how appeals courts work. The appeals court’s job is to review errors that may have happened in the trial court and deal with them.
If the appeals court agrees that the trial court made a mistake, it then decides how to fix it. Sometimes the court finds the error was “harmless,” meaning it did not affect the result. Then the court leaves the conviction in place and no fix is needed. That rule is in Federal Rule of Criminal Procedure 52(a).
In other cases, the appeals court may find that the error was serious enough that a new trial or a new sentencing hearing is needed. Appeals courts like to have trial courts fix their own mistakes. So they send the case back (“remand” it) to the trial court with instructions.
In the less common case where the appeals court finds the evidence was not enough to convict at all, the Double Jeopardy Clause bars a retrial. Burks v. United States, 437 U.S. 1 (1978).
The bottom line: winning an acquittal on appeal is very unlikely. Be sure to talk with your lawyer about the results an appeals court could realistically order in your case.
What if you lose the appeal?
There are several ways to seek relief after a trial. The first is a “direct appeal,” where you challenge the trial court’s decisions in the court of appeals. If the court of appeals rules against you, you can ask the U.S. Supreme Court to hear the case by filing a petition for a writ of certiorari. Under Supreme Court Rule 13.1, it is due within 90 days after the appeals court’s judgment. The Supreme Court takes very few cases.
After all direct appeals are over, the next step is post-conviction relief. In federal cases, this is usually a motion under 28 U.S.C. § 2255. That is a request asking the judge who sentenced you to throw out the conviction or sentence. Many of these motions argue that the trial lawyer was ineffective, meaning the lawyer did not do the job right. A § 2255 motion generally must be filed within one year after the conviction becomes final.
Learn more about 2255 motions at 2255motion.com
So your first appeal is not the end of the road. Talk with your appeals lawyer about all of your options and how likely each one is to succeed.
Our legal system has checks and balances, and the appeals process is an important check on unfair or unreasonable decisions by a trial court. If you decide to appeal, work closely with your lawyer so he or she can present the strongest appeal your case allows.
What should you do next?
Book a consultation to talk it through with Brandon Sample.
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