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The jury has found you guilty. That verdict and ensuing sentence by the trial court does not necessarily end your criminal case. To continue the defense, you must appeal. Pursuing a federal criminal appeal introduces questions and rules that differ from the criminal trial you challenge.

The Scope of a Federal Criminal Appeal

In a federal criminal appeal, you don’t face a jury passing upon your guilt or innocence. You now have a panel of judges tasked with determining whether the trial court committed legal errors that may have caused your conviction.

As such, a federal criminal appeals involves only legal questions. These include whether the Government presented sufficient evidence of your guilt beyond a reasonable doubt, whether the trial judge erroneously allowed or excluded evidence, and whether the trial judge incorrectly instructed the jury on the elements of the crime or how to determine guilt or innocence. How the Court of Appeals reads the criminal statute under which you were convicted may impact whether your conduct, even if proved, was illegal.

As you’ll read below, these questions are answered based on the record of the criminal proceedings. The appeals court does not receive new evidence or examine the existing evidence with a view of finding the facts.

Notice of Appeal — Opening the Door

Your federal appeal begins with the filing of a “Notice of Appeal.” Here, you identify the judgment and orders from which you appeal and the court to whom you appeal. For federal appeals, that court is the Court of Appeals in the circuit that covers the District Court that tried you.

Generally, you must file the notice no later than 14 days after the criminal judgment against you was entered. The Federal Rules of Appellate Procedure fix the date of entry as the day the District Court enters it in the criminal docket. If you filed certain post-trial motions within 14 days after entry of the criminal judgment, your time to appeal begins to run from the date those motions are denied.

Failure to adhere to these deadlines results in dismissal of the appeal.

The Record and Briefs — the Presentation

Once you or your lawyer files the Notice of Appeal, you must compile and submit a record of the criminal proceedings in District Court. This step proves crucial because the appellate judges do not consider anything outside the record. Further, you’re not permitted to refer in the brief or orally to the judges to anything included in the record on appeal.

The record consists generally of the transcript of the trial and any pretrial proceedings, such as motions to suppress illegally-obtained evidence. With the transcript, the appellate judges examine all of the evidence to determine if it is sufficient to prove guilt beyond a reasonable doubt. The transcript must show that your trial lawyer objected to evidentiary rulings that you contest. Should you raise on appeal constitutional questions, you generally must have raised those first in the trial.

The record on appeal also includes the indictments, search warrants and the supporting documents, trial exhibits, orders entered prior to the trial, and the final verdict and judgment.

Once the record on appeal is settled, your appellate lawyer will prepare a brief to present the legal arguments in favor of reversing the conviction. It will include a summary of the procedural history from indictment to judgment, a statement of the facts, a list of questions that the brief will address, and the legal arguments. The selection of cases to support the argument is critical, as courts normally follow precedent. This is based on the principle that cases with the same types of facts should be decided in a similar fashion.

Following the appellant’s brief, the Government will file a brief that argues why the conviction should be affirmed. As appellant, you have the option to prepare a reply brief if the Government has raised matters beyond your principal brief.

The Decision and the Next Step

Courts of Appeals issue opinions to announce their decision. Generally, they rely solely upon analysis of the record and the briefs. The panel may hold oral arguments if the appeal raises significant legal issues or if the judges have questions that the brief does not adequately answer or address.

If the court affirms the conviction, your final appellate resort lies generally with the United States Supreme Court. Review by the Supreme Court is discretionary. You must petition the Supreme Court for certiorari and demonstrate that the Court of Appeals’ opinion conflicts with other those from other appellate circuits or with the Supreme Court’s precedent. Even then, you have a small likelihood of review and ultimately reversal of the conviction. This reality places a premium upon the preparation of your appeal before the circuit Court of Appeals.

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