§15 Direct Appeals

CRIMINAL DEFENDANT’S HANDBOOK – Order Now!

A. Notice of Appeal

After a defendant has been sentenced, and within 10 days after the “judgment of conviction,” regardless of whether the defendant pled guilty or went to trial, the defendant has a statutory, not a constitutional, right to appeal. A direct appeal begins by filing a “Notice of Appeal” with the clerk of the district court in which the defendant was sentenced.

Often a defendant waives the right to appeal in a plea agreement, or retain the right under certain conditions. All defendant’s have the right to appointed counsel without the payment of a filing fee and a free copy of the transcript pursuant to 18 U.S.C. §3006(A) 28 U.S.C. 81915.

B. Record, Appeal Questions and Final Judgments

In a direct appeal, the written records of the trial court, transcripts of the proceedings and trial, sentencing and motion hearings are “the record” for review. A Court of Appeals does not hold a new trial or consider new evidence. Counsel presents arguments in written “briefs” and may make “oral argument” before a panel of judges.

Appellate judges ask three questions: (1) do we have jurisdiction to hear this case; (2) is the information in the record; and (3) what is the standard of review? Appellate courts do not have jurisdiction in criminal cases, except for interlocutory appeals, until the entry of the final judgment of conviction pursuant to 28 U.S.C. §1291.

Rulings denying pretrial liberty are quintessential examples of “final” collateral orders in criminal cases. See, Stack v. Boyle, 342 U.S. 1, 96 L.Ed.2d 3, 72 S.Ct. 1(1951). Motions to dismiss charges on double jeopardy grounds are appealable pretrial, in accordance with Abney v. United States, 431 U.S. 651, 52 L.Ed.2d 651, 97 S.Ct. 2034 (1977) and can be expedited. Barring counsel of choice from the trial is appealable. The denial of a motion for new trial is a final order as is an order revoking or adversely modifying the terms of probation. Juvenile dispositions and sentencing in a criminal case fit this definition of final judgment or final order.

Most trial court rulings before sentencing do not fit this standard because they do not dispose of the entire case. Any interlocutory appeal during the course of a proceeding in a criminal case is strongly disfavored. Accordingly, it has “interpreted the collateral order exception ‘with the utmost strictness’ in criminal cases.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 799, 103 L.Ed.2d 879, 109 S.Ct. 1494 (1989)(quoting Flanagan v. United States, 465 U.S. 259, 265, 79 L.Ed,Zd 288, 104 S.Ct. 1051 (1984). For orders that cannot sit unchallenged until sentencing, an argument that an interlocutory order fits within the collateral order doctrine may rely on cases construing 28 U.S.C. 81291, the statute regulating the authority of the federal appellate courts.

C. Issues on Appeal

Many issues may be raised on direct appeal. Issues that rely on evidence outside the trial record such as ineffective assistance of counsel cannot be raised on direct appeal.

Examples of issues that can be raised on direct appeals are:

• Evidence that does not support the verdict
• Evidence improperly admitted or excluded and credibility of witnesses
• Errors in judge’s pretrial or trial rulings
• Issues with jury instructions and defense theory of case
• Legal questions and claim of abuse of discretion
• Prejudice, plain, clear and structural errors

Examples of final orders or judgments other than the judgment of conviction which are appealable are :

• Denying prisoner leave to proceed in forma pauperis
• Denying leave to intervene as a matter of right
• Denying inmates discovery request as part of habeas corpus petition
• Suppressing or excluding evidence-if evidence is substantial proof of material fact
• Denying a motion to vacate judgment (Fed.R.Civ.P. 60(b))
• Refusing to dismiss for lack of venue
• Denying motion to dismiss for failure to state a claim upon which relief can be granted
• Granting or denying motion to strike providing viable pleading remains
• Denying motion for summary judgment
• Denying motion to dismiss
• Rulings on in limine motions
• Denying motion for default judgment
• Granting a motion to quash subpoena
• Granting or denying motion to disqualify counsel
• Denying a motion to disqualify judge
• Granting new trial
• Examples of immediately reviewable orders based on collateral order doctrine are:
• Denying motion to dismiss based on claim of double jeopardy
• Denying collateral estoppel
• Denying bail reductions
• Directing juvenile be tried as adult
• Preventing a warden from contacting petitioner’s prior counsel during pendency of petition for habeas corpus when seeking relief on ineffective counsel

The collateral order doctrine established in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 93 L.Ed. 1528, 69 S.Ct. 1221 (1949) is a narrow exception to the final judgment rule. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 66 L.Ed.2d 271, 101 S.Ct. 669 (1981).

The general rule is a judgment or “decision” is “final” for purposes of direct appeal only “when it terminates litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what had been determined.” Parr v. United States, 351 U.S. 513, 518, 100 L.Ed. 1377, 76 S.Ct. 912 (1956). Review is generally unavailable until after the conviction and imposition of the sentence. Midland Asphalt Corp., at 798.

A judgment of conviction and sentence-entered after a defendant has pleaded guilty is a final appealable order as are: (1) Denying request to withdraw a guilty plea; (2) Granting or denying motion or petition for post-conviction or collateral relief; (3) Granting bail in criminal cases and extradition cases.

Examples of issues that cannot be raised in direct appeals are:

• Ineffective assistance of counsel
• Newly discovered evidence
• Prosecutorial misconduct
• Withholding of exculpatory and favorable evidence; perjury at trial
• Juror misconduct
• Plea agreement and sentence within the proper guideline range
• Vacating, setting aside, correcting or reducing sentence

Most of these issues can be raised in post-conviction proceedings including section 2255 motions. All rely on evidence outside the trial record and cannot be raised on direct appeal. Section 2255 motions may only be used to raise jurisdictional, constitutional, or other fundamental errors by collateral attack, therefore, it is generally not a good idea to forgo a direct appeal and proceed directly to a section 2255 motion. If there are no identifiable issues for review on direct appeal and “the record” is insufficient, then proceed with a section 2255 or 2241 motion.

Appellate courts will often refuse to consider issues which were not first raised in the district court. Counsel must give the district court the opportunity to rule on the issue and make timely objections on the record. Effective counsel has the unmistakable obligation to make an effective and complete record in three respects: (1) ensure the information relevant to an appeal is part of the record; ( 2 ) framing arguments that make the trial court’s ruling less likely to receive appellate deference; (3) present all arguments with specificity to prevent review under a plain error standard and obtain review instead under the constitutional error standard.

The transcript, court file and exhibits preserved for appeal must include all the information necessary for the appellate court to rule in the Defendant’s favor. Counsel must either “proffer” evidence important to the Defendant’s case or exclude evidence that will unfairly prejudice the Defendant. Appellate courts cares about errors and prejudice. The proffer establishes a record for the appellate court to decide whether the trial court’s ruling caused prejudice to the defense.

Curative instructions in the record increase the likelihood of establishing error and prejudice for appellate review. If the suggestion is rebuffed by the trial court and the uncorrected harm is extremely prejudicial, counsel should request a mistrial. Arguments must be precise. Objections must be timely, clear and specific. Counsel should explain the Defendant’s position in factual terms and why certain rulings are prejudicial. Good trial advocacy and record preservation are precisely what’s needed for a successful appellate review, reversal or remand.

To preserve all claims for appeal, counsel should not appear to acquiesce in adverse rulings.

Counsel should make a proper record for appellate review in the following areas:

• Rulings admitting or excluding evidence
• Rulings that affect defendant’s decision to testify
• Discovery and Brady demands
• Severance motions
• Batson challenges in racially discriminatory manner
• Motions for judgment of acquittal
• Closing argument
• Jury instructions
• Speedy trial
• Issues of law
• Issues of trial court discretion
• Issues of fact

D. Jurisdiction and Preservation of Issues

Appellate courts do not have jurisdiction until after the final judgment of conviction pursuant to 28 U.S.C. §1291. Once an appeal is filed, the district court no longer has jurisdiction over the aspects of the case involved in the appeal. United States v. Najjor, 255 F.3d 979, 983 (9th Cir. 2001), cert.denied, 536 U.S. 961 (2002). District court retains jurisdiction over whether conditions triggering petitioner’s release have been met. Stein v. Wood, 127 F.3d 1187 (9th Cir. 1997). Questions of appellate jurisdiction are reviewed de novo. Andersen v. United States, 298 F.3d 804, 807 n.2 (9th Cir. 20021, cert.denied, 155 L.Ed.2d 666 (2003). Once a notice of appeal is filed, the district court generally loses jurisdiction to rule on matters related to the sentence. United States v. Sprague, 135 F.3d 1301, 1307 (9th Cir. 1998). District court retains jurisdiction despite pending appeal from denial of petition for habeas corpus over whether condition would trigger petitioner’s release. Stein, at 1187.

Appellate courts will often refuse to consider issues which were not first raised in the district court on the record in the Ninth Circuit. A guilty plea is deemed to be a waiver of all non-jurisdictional defects. united States v. Caperell, 938 F.2d 975, 977 (9th Cir. 1991). To preserve the right to contest the sufficiency of the evidence on appeal, the defendant must move for a judgment of acquittal at the close of the evidence under Fed.R.Crim.P. 29. United States v. Bancalari, 110 F,3d 1125, 1428 (9th Cir. 1997); United States v. Tisor, 94 F.3d 370, 378-80 (9th Cir. 19961, cert.denied, 519 U.S. 1140 (1997).

Other issues preserved by objection or challenge are:

• Suppression motion challenging pretrial identification procedure
• Objections to jury instructions
• Claim of ineffective counsel (collateral proceedings or direct appeal)
• Objection that an indictment count is duplicitous

Appeal waivers in plea agreements do not deprive a Court of Appeals jurisdiction to hear an appeal. United States v. Story, 439 F.3d 226(5th Cir. 2006).

As a general rule, the court of appeals will not address arguments raised for the first time on appeal. If a timely objection was not made in the trial court, the appellate court may conclude the issue was forfeited. Then the issue will only be considered if it meets the stringent “plain error” test. An issue may also be considered for the first time on appeal pursuant to Fed.R.Crim.P. 52(b) when plain error has occurred and an injustice might otherwise result. See, Johnson v. United States, 520 U.S. 461, 137 L.Ed.2d 718, 117 S.Ct. 1544 (1997); Olano v. United States, 507 U.S. 725, 732-37, 123 L.Ed.2d 508, 113 S.Ct. 1770 (1993); United States v. Cotton, 535 U.S. 625, 152 L.Ed.2d 860, 122 S.Ct. 1781 (2002) (plain error applied to sentencing appeal).

However this rule is discretionary with a few recognized exceptions:

• Claim a plea agreement has been violated
• Claim the district court failed to follow Rule 11 in considering a guilty plea
• Challenge to multiplicity of sentences

If an issue has been properly preserved, the Ninth Circuit will review it under the appropriate standard of review.

If no plain error is found, the Ninth Circuit will affirm and its inquiry will end. If the appellate court determines an order or ruling was erroneous, it will then determine whether the error was harmless. Riley v. Deeds, 56 F.3d 1117 (9th Cir. 1995). “Harmless errors” not affecting the defendant’s substantial rights are not grounds for reversal, even if timely raised. United States v. Lane, 474 U.S. 438, 444-45, 88 L.Ed.2d 814, 106 S.Ct. 725 (1986); Riley, at 111 7.

Non-constitutional errors are reviewed pursuant to 28 U.S.C.A. §2111; Fed.R.Crim. P. 52(a); Kotteakos v. United States, 328 U.S. 750, 90 L.Ed. 1557, 66 S.Ct. 1239 (1946); United States v. Lopez-Alvarez, 970 F.2d 583, 588 (9th Cir. 1992), cert.denied, 506 U.S. 989 (1992). For reversal on non-constitutional errors, an error “had substantial and injurious effect or influence in determining the jury’s verdict.” Lane, at 444. The Defendant must demonstrate the error resulted in actual prejudice.

The following are examples of non-constitutional errors subject to harmless error analysis not violating constitutional rights:

• Violations of Federal Rules of Criminal Procedures
• Presentation of perjured testimony to grand jury
• Prosecutorial misconduct during a grand jury investigation
• Government’s failure to produce written witness statements required by Jencks Act
• Errors in admissions or exclusion of evidence
• Improper prosecutorial remarks
• Denial of motion for change of venue based on pretrial publicity
• Permitting use of leading questions
• Erroneous departures from sentencing guidelines
• District court’s failure to receive grand jury indictment in open court
• Trial court’s failure to decide issues of law and instruct the jury
• Erroneous jury instructions
• Jury reception of extrinsic information
• Variance in proof between indictment and trial
• Time limits placed on defendant’s testimony
• Violation of discovery rules
• Violation of Rule 11 governing guilty pleas (separate harmless error provision)