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Appellate Procedure

Federal Criminal Appellate Procedure

If you've been convicted of a federal crime, you have the legal right to appeal your verdict to the higher courts. That being said, filing an appeal can be lengthy and complicated; statistically speaking, the higher courts uphold most appeals.

For the best chance of success, work with a federal appeals court attorney with specific experience with the federal appellate process.

Federal Criminal Appellate Procedure
if you are convicted of a federal crime, you might be able to file and appeal to a higher court.

The right to appeal is essential in the federal criminal legal system. Suppose you were convicted of a crime by a guilty plea or a trial verdict. In that case, you might be able to challenge either the conviction or the sentence, which is true in both state and federal courts.

However, to effectively appeal a conviction or sentence, you must follow all the proper procedures and have a valid legal basis for the appeal. Simply put, the federal appellate procedures are complex, and you will need an experienced and knowledgeable federal appeals lawyer to guide you through the process.

Notably, you must first understand that you will not win an appeal and overturn a conviction or sentence by arguing that the judgment was unfair or wrong. In other words, an appellate court will not initially order a new trial or review new evidence.

You must establish that a legal error occurred during the trial. Then, if the appellate court finds a material legal mistake led to your conviction or inappropriate sentence, they reverse or remand your case. Let's look at the criminal case federal appeals process below.

Are Appeals of Criminal Convictions Guaranteed?

No. The right to appeal a federal criminal conviction in federal court is guaranteed. The following factors limit them:

  • Types of judgments and orders that are eligible for an appeal;
  • How long the defendant has to appeal;
  • Which arguments will change the outcome of a case;
  • Where a defendant can file an appeal based on a court's jurisdiction.

You might have the legal right to file an appeal in federal court if you were convicted in federal court or exhausted the appellate process in the California court system.

Suppose you were convicted of violating a California criminal law. In that case, you have to appeal to a California court. If you have reached the highest state court possible and have a federal question, you could take your case to the federal court. Federal courts in California include the United States District Courts for the following:

  • Central District;
  • Eastern District,
  • Northern District, and
  • Southern Districts.

Appeals for these U.S. District Courts go to the U.S. Court of Appeals for the Ninth Circuit. You have the right to a lawyer throughout the criminal court process, including during appeals. While your trial attorney should inform you of your right to appeal, they will not typically represent you during an appeal. 

You must retain a federal criminal appeals attorney with the specific knowledge, experience, and skills necessary to appeal a conviction or sentence effectively. One of the more challenging aspects of appealing a criminal conviction is adhering to the many procedural requirements, as discussed below.

Hearing and Determination of Appeal

The appeal process involves drafting written briefs and sometimes presenting oral arguments to the appellate court. The possible outcomes of an appeal include the following:

  • A dismissal,
  • Affirmation,
  • Reversal with or without a retrial permitted,
  • A reduction of the offense, or
  • Remand with directions for the lower court.

The appellate court's decision may not be the final step in the appeals process. Depending on the outcome, the federal appellate procedure may allow asking for a rehearing or seeking a review with the Supreme Court.

What Are the Steps in the Appeals Process?

Suppose you disagree with the verdict, and your attorney can identify and present arguments regarding errors that may have affected the outcome or otherwise violated your constitutional rights. In that case, you may have grounds to file an appeal.

Your appeal will be considered by the Circuit Court of Appeals that oversees the Federal District Court in which your trial was held. A panel of three appellate court judges will then review the case. The appellate process moves through a set of steps, as discussed below.

What Are the Steps in the Federal Appeals Process?
There are several steps in the federal criminal appeals process that must be followed.

Notice of Appeal

The first step in the appeal process is for your attorney to file a notice of appeal with the trial court clerk. This must be done within a specific time frame (typically 30-60 days) after the final judgment or order in the case.

Record on Appeal

Next, your attorney prepares the "record on appeal" to submit to the appellate court. This includes all documents and transcripts from the trial court relevant to the appeal.

Appellate Briefs

Next, your attorney will write and submit an appellate brief. This is often a long and complex document that presents arguments for why the trial court decision should be reversed or modified. The prosecution will also give a brief defense of their case. Since decisions for most appeals are made solely on the merits of the briefs, your attorney must be able to draft a compelling brief.

Oral Arguments

In some cases, the appellate court may schedule oral arguments. During this session, your attorney will have the opportunity to present the case and answer questions from the judges. The prosecution will also give oral arguments. In most cases, the court allows each side only 15 minutes to present oral arguments.


After reviewing the record and considering the arguments presented, the appellate court will issue a decision. This could involve affirming the trial court's decision, reversing it, or remanding the case back to the trial court for further proceedings.

Petition for Rehearing

If the appellate court's decision is unsatisfactory, your attorney may file a petition for rehearing within a certain period, often 14 days.

Appeal to Supreme Court

If the initial appeal and petition for rehearing are unsuccessful, your attorney may consider filing a writ of certiorari requesting the United States Supreme Court to review the case.

However, remember that the Supreme Court only hears cases relating to significant legal questions regarding constitutional law and agrees to hear a small percentage of the cases submitted to it each year.

What Will the Court of Appeals Review?

When you file an appeal, the Court of Appeals will not retry the case or hear new evidence; they only look for errors that might have negatively impacted the outcome. When reviewing an appealed criminal case, the Court of Appeals focuses on several key areas:

  • Legal Errors: The primary role of the appellate court is to determine if any legal errors that could have affected the outcome of the case occurred in the trial court. This could include errors in interpreting the law or applying it to the facts of the case.
  • Procedural Errors: The court also examines whether the trial court followed correct procedures throughout the trial—for example, issues related to the admission or exclusion of evidence, jury selection, or sentencing procedures.
  • Constitutional Issues: The appellate court reviews whether the defendant's constitutional rights were violated during the trial. This might include the right to a fair trial, legal representation, or protection from unreasonable searches and seizures.
  • Sufficiency of the Evidence: While the Court of Appeals does not consider new evidence, it does review whether the evidence presented at trial was sufficient to support the verdict. If the court finds that no reasonable jury could have reached the same conclusion based on the evidence, it may overturn the verdict.
  • Sentencing Decisions: If the defendant was found guilty, the appellate court may review the sentencing decision to ensure it aligns with statutory guidelines and is not excessively harsh or unjust.

What is the Role of the Supreme Court?

The Supreme Court is the highest court in the U.S. and has the final say on matters of federal law. However, it's important to note that the Supreme Court hears a tiny percentage of cases - usually those that involve significant legal questions or have broad implications.

In deciding whether to grant a review, the Court considers whether the case involves a significant legal question, whether there is a conflict among different appellate courts on the issue, and the general importance of the case.  If the Supreme Court declines to hear your case, the appellate court's decision stands.

Why Do You Need a Federal Criminal Appeals Lawyer?

In addition to appeals to a higher court, our federal criminal appeals lawyer can utilize various writs. We know the federal appellate procedures regarding filing petitions for writs.

These petitions ask the court to consider a particular issue and command a lower court or governmental authority to act or refrain from performing a certain way.

A writ of habeas corpus can be used to question your imprisonment and seek your release. We thoroughly understand when and how to utilize petitions for writ of habeas corpus. For more information about the federal appellate procedure, contact us by phone or through the contact form.  Eisner Gorin LLP has offices in Los Angeles, California.

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