§15 Direct Appeals


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)

2 thoughts on Ҥ15 Direct Appeals

  1. I need to know a couple of things first My husbands attorneys phone has been disconnected for 2 years you can not reach him he had to literally stalk him down by hiding in the stair well and waiting till his attorney thought he left to talk to him you can see for your self dial 540-373-4203, another thing is when it was time for the preliminary hearing he asked his attorney what evidence they had on him how did it get sent to the cicuit court ( it is a charge of grand larceny and conspiracy to commit grand larceny) his attorney told him that they had a video with him on it and my husband said that is not possible because I am innocent. He got charged because he went to his dads house and picked up his brothers truck to go do a job he got a call from whom he though was Bob with the carl d silver company to go scrap and tear down some metal sheds. Well when he picked up the truck he asked his dad if he could use his worker for the day he needed a hand. When they got to the place to meet “Bob” it was 5 under cover police men with guns surronding them. They pointed at his codefendant and said thats the guy.. apparently they really did have his face on camera but no one else. The codefendant took a guilty plea because he was guilty and has been telling them the whole time my husband didn’t take the ac unit with him it was his father who passed away a month or two after the inccodent. This particular count has been harassing my husband for 15 years they stuck there fingers up his rectum on the side of the road because they said he had drugs and they found nothing at all but still tried to arrest him but those charges got dropped obviously they had no evidence, but anyways with this case my husband wrote a written statement and all it said was I recycle for a living he pleaded not guilty the whole time the commonwealth continued this case for 2 years hoping to scare him into a plea saying they had evidence they didn’t. While standing there with the detective on the arrest date after he wrote his wittness statement not pleading any guilt the detective started asking him questions like what do you do for a living he told him I recycle. He then asked my husband how would you put an ac like that on your truck and he told him I would just throw it up on the truck not talking about any specific date time place or unit. The detective had some crazy recording device and didn’t tell my husband he was recording him nor was he told at the preliminary that the recording was the evidence against him. Well after almost two years of the commonwealth continuing the trial mulitple times one of the times the court room was over crowded and his attorney told him just to wait out side they would just be getting another date to go in. that day his attorney just told him to come in like a month later the whole time my husband is telling him to file a motion of discovery and wanting to see the evidence against him…. nothing couldn’t get ahold of the attorney at all… well at the next court date he was looking at the doctect and at the previous court date he was endited on another charge for distribution of stolen goods. He says to his attorney were is the evidence of me even commiting this crime its been a year you haven’t shown me anything and you didn’t tell me they did a secret enditment on another charge where even proof of this ac unit even existing proof of ownership and still nothing. He asked his attorney to file mulitple motions he wanted to supeona (sorry for any incorrect spellings I’m exhauted with and 8 month old 4 yr old and worried about this) The whole time his attorney did nothing . So while my husband was at thecourthouse he heard the commonwealth badmouthing him to his codefendants attorney and confronted her and then went and tried to file a grievance and for that was assaulted by a police officer and arrested but then those charges where dropped but had to do with this case they were trying to cohoarse his codefendant to say he was there and the codefendant kept telling them I’m not sending an innocent man to prison he was not there I was working with his dad that truck was basically a family truck not his. It wasn’t even in his name. Well still no evidence nothing the day before the jurytrial he finally tracts down his lawyer sleeping in the office and he told him they have a recoring of you admitting you took the unit. My husband said that is impossible if I admitted it I would be taking a plea agreement I’m innocent I never admitted to anything I wrote a wittness statement. So the day of the jury trial comes and he got to see the evidence against him when the jury did. You could not understand one word on the recording and the detective wrote his own transcript that had false statement that were never made on it and that was all they had against him to the jury. Three people in the jury just had work done by the company who claimed that my husband took their ac unit when his whole family does recycling. his lawyer told the jury against his will that he admitted to taking it when he was pleading to not guilty and didn’t take it. He did exactly the opposite of what my husband asked him to the evidence wasn’t presented to my husband until the jury say it. it wasn’t a proper recording device. I need some advice…. I feel like his attorney was the prosecution and that evidence should have been shown to him at the preliminary before it went to circuit court and now the jury just gave him 3 years for a crime he didn’t commit and his attorney didn’t put in one of the 10 motions he was asked by my husband to file. My husband even said in the courtroom on three seperate occations I want to fire him please I want inneffective assitance of council or some thing and no one listened now he is sitting in jail for a crime this time he really didn’t commit and there evidence was not even real at all that detective made that fake transcript he wrote up you couldn’t make out one word on the recording and if he had admitted to the dectective that he took it he would have take a guilty plea and wrote it on his written statement when they to him to the police station. His lawyer didn’t even ask for his written statement to show the jury. PLEASE SOMEONE GIVE ME SOME GOOD ADVICE I DON”T WANT HIM MISSING THE YOUNGEST YEARS OF OUR KIDS ESPECIALLY OUR SONS FIRST STEPS AND ALL THAT FOR A CRIME HE DIDN”T COMMIT!!! PLEASE SOME GOOD ADVICE!!! The county he’s in thinks they don’t have to follow the rules they think they are untouchable they have a 99% convition rate it crazy

  2. one more thing the people who owned the ac who had no proof of ownwership had to diff stories on stand one said it was sitting on the ground for two years and the other said it was sitting up high for a couple months but a brand new 3500$ unit so they claimed wouldn’t be sitting by a dumpster and they had lock boxes all around and deff not unpackaged on the ground for two years

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