Direct Federal Criminal Appeals in New York – Process and Procedure

A direct criminal appeal in the federal system is an appeal taken from a conviction in a federal trial court to a middle level appellate court and then possibly to the highest appeals court in the country. This article first describes how the federal trial courts are set up and then gives a more detailed description of what a direct appeal is and how it is dealt with in the various federal appellate courts. The article concludes with a discussion of issues relevant to defendants who wish to retain private counsel to represent them on a federal appeal.

Federal Criminal Trials - District Courts

In the federal system, criminal trials are held in federal district courts. Each state is divided up into various districts. In New York there are four federal district courts. They are the Western District, the Northern District, the Eastern District and the Southern District. Each district court covers a specific geographic area within the state of New York. For example, the Southern District of New York handles criminal trials where the cases originate from the following counties: New York (Manhattan), Bronx, Westchester, Rockland, Putnam, Orange, Dutchess and Sullivan. Each federal district may have more than one courthouse located in different cities in that district. For example, the Southern District has courthouses located in Manhattan, White Plains, and Middletown.

Second Circuit Court of Appeals – The First Step in Federal Criminal Direct Appeals

A direct appeal in a federal case is one that is taken immediately after being convicted at trial. The path of such an appeal is to proceed to the Circuit Court of Appeals and, if necessary, seek permission to appeal to the U.S. Supreme Court. A defendant has an automatic right to take a direct appeal to the circuit court but must seek permission to appeal further to the U.S. Supreme Court. The circuit courts are the intermediate appellate courts in the federal system. The nation is divided up into 11 circuit courts, the D.C. Circuit and the Federal Circuit. Each of the 11 circuit courts cover certain states in the union. The D.C. circuit covers appeals from the District of Columbia and the Federal Circuit Court of Appeals handles specialized types of appeals not relevant to any specific federal district court. New York State is located within the Second Circuit Court of Appeals and anyone wishing to appeal a federal conviction from any of the New York District courts would appeal to the Second Circuit. Direct appeals involve issues that are referred to as being on the record. A legal issue is on the record if it was raised and argued before the judge in the District Court at the initial trial.

The United States Supreme Court – the highest court

The highest court in the federal system is the United States Supreme Court and that is the final level of appeal available in the federal system. If a person has lost an appeal in a federal circuit court, he does not have an automatic right to a further appeal to the U.S. Supreme Court. Instead if a defendant wishes to appeal to the Supreme Court, he must first submit a written request to that court asking for permission to appeal. That request is referred to as a petition for a writ of certiorari. Only if that petition is granted may a defendant then file a formal appeal with the Supreme Court. The U.S. Supreme Court receives many such petitions every year but only agrees to accept a handful of cases. The Supreme Court generally does not accept cases for the sole purpose of correcting a mistake made by a Federal Circuit court. Instead it concentrates its effort on resolving splits in decisional law made by the various circuits. A split between two circuits will exist if one circuit interprets a provision of the Constitution or a federal statute one way and another circuit interprets that exact same statute or constitutional provision in a different way. The U.S. Supreme Court generally does not like it when splits in the circuits exist. The reason for this is that such splits cause defendants in different states to be treated and punished differently simply on the basis of where they happen to live. This results in an uneven administration of justice. The Supreme Court, however, strives to make the law apply evenly throughout the country.

Retaining Counsel to Handle Your Direct Federal Criminal Appeal

In state court there can often be a significant delay from the date of sentence until the time in which an appellate attorney files the defendant’s brief on appeal. However, that is not the case in federal court. Once a defendant is sentenced in a New York federal court, the Second Circuit will automatically set down a scheduling order directing that the brief for the appeal be filed with that court within a very short period of time, perhaps as little as three months. A lawyer may be able to get an extension on that initial deadline but extensions are not offered indefinitely. Furthermore, the Court of Appeals will automatically appoint the trial attorney to handle the appeal. However, trial attorneys are often not well-equipped to handle appeals, since they do not regularly practice in that area. Furthermore, it is preferable to have the appellate attorney be someone other than the trial attorney since one of the jobs of the appellate attorney is to seek out and litigate mistakes made by trial counsel.

After the trial attorney is appointed by the circuit court to handle the appeal, the defendant is free to hire a private attorney to represent him on appeal. But he must move quickly to hire that attorney given the outstanding scheduling order that will have been imposed. A defendant convicted in federal district court will not have the luxury of time to go out and look for an appellate attorney of his choice.

If a defendant is convicted in federal district court, there will be some delay between the date of conviction and the date of sentence. That delay can run anywhere from 1 to 3 months or perhaps longer. It is during that period of time that the defendant should be searching for an appellate attorney. Indeed, one could argue that proper preparation for a trial in federal court necessarily also entails having an appellate attorney on board prior to commencement of trial in the event that the trial ends in conviction. That way, should the defendant be convicted after trial, a bad situation will not be compounded by virtue of the fact that the defendant is forced to find appellate counsel within a constricted time period. If the defendant does not want his trial attorney to handle the appeal but also does not have the funds necessary to retain private counsel to represent him on appeal, he can ask his trial attorney to recuse himself from the appeal. The trial attorney should then indicate to the circuit court that the defendant does not want the trial attorney handling the appeal and the likelihood is that the circuit court will then appoint another attorney to handle the appeal.

Any attorney privately retained to handle an appeal to the Second Circuit must be admitted to that court and he must have privileges which permit him to make electronic filings in that court.

Federal Criminal Appeals - A Brief Overview

In this article, New York criminal appeals lawyer Tom Theophilos briefly outlines the process and procedure for taking a federal criminal appeal.

Mr. Theophilos’ federal criminal appeals practice naturally takes him most frequently to the New York Second Circuit Court of Appeals in Manhattan. However, Mr. Theophilos is available to handle federal criminal appeals anywhere in the United States. Federal criminal appeals usually require only a single physical appearance in the appropriate court for oral arguments. Therefore, no matter where your federal Criminal Appeals matter is, Mr. Theophilos can help.

If you have any questions or would like to speak with New York criminal appeals attorney Tom Theophilos about a New York federal criminal appeal or indeed any federal criminal appeal, please call 716-447-7899 or 716-447-7901.