People convicted of a federal crime in Nevada may appeal the case to the Ninth Circuit Court of Appeals. The procedure is complex and time-consuming. But a skilled Nevada criminal defense attorney knows how to make the federal appeals process as quick and effective as possible.
This page contains information about appealing a federal criminal conviction in Nevada. Continue reading to learn what an appeal is and the procedures involved.
What is a federal criminal appeal in Nevada?
A federal criminal appeal is when a defendant who's found guilty of a federal crime in Nevada asks the Ninth Circuit Court of Appeals to review the case for errors. Some defendants argue that their guilty verdict was wrong. Others don't contest the guilty verdict but argue that their sentence was too harsh.
Note that an appeal is merely a "review," not a new trial. The defendant may not present new evidence or testimony. Instead, the Ninth Circuit evaluates what happened at trial to see if there were legal errors that prejudiced the defendant and likely influenced the case's outcome. An appeal is an opportunity for the Ninth Circuit to correct these errors.
What happens if a person wins an appeal in the Ninth Circuit?
It depends on the purpose of the appeal. The Ninth Circuit may overturn the conviction and find the person not guilty, which would end the case. Or else the Ninth Circuit may remand (send back) the case to Nevada federal court for further proceedings.
If the Ninth Circuit remands the case, it would specify which of the following the Nevada federal court should do:
- retry the case in accordance with the Ninth Circuit's findings
- re-sentence the defendant in accordance with the Ninth Circuit's findings
- correct another legal error in accordance with the Ninth Circuit's findings
What if a person loses an appeal in the Ninth Circuit?
A person has four choices when the Ninth Circuit upholds a Nevada federal court ruling:
- Do nothing and accept the ruling.
- File a petition for a rehearing with the Ninth Circuit. It's rare the Ninth Circuit will grant a rehearing. But if they do, it's a good opportunity to show the court how they misinterpreted or disregarded key issues in the case.
- Try to appeal to the U.S. Supreme Court. But note that the Supreme Court hears very few appeals.
- Pursue other post-conviction options such as a filing a writ of habeas corpus.
If a defendant loses an appeal in the Ninth Circuit, how can he/she appeal to the U.S. Supreme Court?
It's a very technical process. First, the defendant has to file a "writ of certiorari" with the Supreme Court. The purpose of this writ is to ask the Supreme Court to evaluate the Ninth Circuit's ruling to see if they missed any legal errors that should be remedied.
The Supreme Court grants very few writs of certiorari. If it does, then the defendant may proceed with the appeals process which includes filing briefs and having an oral argument. If not, then the Ninth Circuit Court decision stands.
Where is Nevada federal Court located?
The official name for Nevada federal court is United States District Court, District of Nevada. There are only two federal courthouses in Nevada: The Lloyd D. George Federal Courthouse in Las Vegas and the Bruce R. Thompson Federal Courthouse in Reno. Everyone who's charged with a federal crime in Nevada has his/her case heard in Nevada federal court.
Is the Ninth Circuit Court of Appeals located in Nevada?
No. Ninth Circuit courthouses are located in San Francisco, Pasadena, Portland and Seattle. However, defendants who wish to appeal Nevada federal cases do not need to travel out of state . . . their lawyers may file the appeals electronically.
How does the federal appeals process differ from the appeals process in Nevada state court?
The main difference is the courts. In federal court, a case in Nevada federal court is appealed to the Ninth Circuit. In Nevada state court, a case in a county district court is appealed to the Nevada Supreme Court.
But note that the U.S. Supreme Court is the final court of appeal in both federal and state cases. Defendants who lose their appeals in either federal or state court may file a "writ of certiorari" in the hopes that the U.S. Supreme Court will hear their appeal.
Another difference between Nevada state and federal appeals has to do proper wording in the legal documents. In federal court, the person filing the appeal is called the "appellant," and the opposing side is called the "appellee." In Nevada state court, the person filing the appeal is also called "appellant," but the other side is called the "respondent."
But note that courts may refer to the person filing the appeal as the "petitioner." Courts may also refer to the opposing party as the "state," "government," or "warden." And sometimes courts just call the parties by their actual names.
What is the appeals process in a Nevada
There are six steps to the appeals process:
- Notice of appeal
- Motions for "bail pending appeal" or "revocation of bail pending appeal"
- Record of trial court proceedings
- Written briefs
- Oral arguments
- Judges' Decision
1) Notice of appeal
The first step to appealing a federal criminal case in Nevada is to file a "notice of appeal" in the Ninth Circuit. This needs to be done within 14 days of the entry of judgment or order that the person is appealing. However the court may grant a 30-day extension if the person can show excusable neglect or good cause for delaying.
2) Motions for "bail pending appeal" or "revocation of bail
While the appeal is pending, the person filing the appeal may ask the federal court to either set bail, reduce bail, or grant an OR release (which is when the person is released on his/her "own recognizance" and promises to show up for court dates).
3) Record of trial court proceedings
After the person files a notice of appeal, he/she then compiles the "record on appeal." The record on appeal is comprised of all the paperwork from the case so far, including:
- all the exhibits and papers filed in the case
- all the transcripts of any court proceedings in the case
- a certified copy of all the court docket entries in the case prepared by the district clerk who handled the trial proceedings
Note that the Federal Rules of Appellate Procedure give strict time limits on when everything needs to be done. The person filing the appeal has only 14 days from filing the notice of appeal to do the following:
- order any reporter's transcripts that aren't on file yet but which are necessary to argue a proper appeal
- coordinate arrangements to purchase the transcripts
- file a statement of issues with the Ninth Circuit that the person plans to present as to why an appeal should be granted
Note that if transcripts are still unavailable by the 14-day deadline, the person filing the appeal may instead file a "statement" of the evidence and proceedings from the best available means. This may include the person's recollection of the court proceedings. The government may then amend the statement, and this continues until both sides agree and file a "final trial court record."
4) Written briefs
A brief is the document where the person filing the appeal explains how his/her trial in Nevada federal district court was marred with legal errors . . . and why the Ninth Circuit should fix these errors by granting the appeal.
The written brief is the most critical part of the appeals process because it contains all the arguments and explanations as to why an appeal is necessary. The brief must be filed within 40 days from filing the final trial court record. The government then has 30 days to rebut with its own brief. Then the appellant has 14 days to reply to the government's reply.
Note that there are very strict rules about form and structure that the briefs have to comply with including font size and presentation of exhibits. Failing to follow these rules may delay or extinguish the appellant's chances of winning on appeal.
5) Oral argument
Oral arguments are when attorneys for the appellant and appellee go to the Ninth Circuit in person to highlight the main arguments in their briefs and answer the judges' questions. Appellant may waive their right to oral arguments and rely on the brief to persuade the judges. But judges like having oral arguments to ask questions that would otherwise remain unanswered.
Oral arguments usually last one hour with each side having a half hour to speak. Typically three judges listen to oral arguments, and they're free to interrupt the attorneys with as many questions as they want during the time limit.
6) Judges' Decision
After the three-judge panel reads the briefs and listens to oral arguments, they privately talk together about what decision to render based on the law and facts of the case. It typically takes them three months to a year or longer to deliver a decision depending on how busy the court is and how complex the case is.
A decision is made when at least two of the three judges agree on the judgment. Then one of those judges composes an opinion explaining the court's decision. If one of the judges disagrees, he/she can write a dissent, which explains why he/she doesn't agree with the majority opinion.
The judges may decide to publish the opinion if they believe it would be a relevant legal precedent to future cases involving similar issues. Otherwise the judges will just issue a short, unsigned opinion that will not be made public.
What resources to indigent people have who want to appeal to the Ninth Circuit?
People filing federal appeals who are too poor to afford transcripts may get them for free. They are also entitled to the appointment of an attorney to represent them for free.
What are the grounds of appeal in Nevada federal criminal cases?
The grounds of appeal in a federal case are like those in a Nevada state case. A ground of appeal is any legal error which . . . if it had not been committed . . . would likely have resulted in a better outcome for the defendant. It doesn't matter whether the error occurred during a pretrial hearing, the actual trial, or at sentencing. Learn more at our page on Nevada appeals law.
Can defendants who enter "guilty" or "no contest" pleas in a Nevada federal criminal case appeal to the Ninth Circuit?
Perhaps. Defendants who enter pleas give up their rights to a trial and to appeal . . . but depending on the circumstances there are some issues which these defendants may still appeal. These include:
- the government breaching its obligations in the plea bargain
- ineffective assistance of counsel
- the judge in Nevada federal district court imposing an unlawfully harsh sentence
Call a lawyer . . . .
If you've been convicted of a federal crime, you may be able to appeal it to the Ninth Circuit. Call our Las Vegas criminal defense attorneys at 702-DEFENSE (702-333-3673) to discuss your options. We may be able to get your trial redone, your sentence lowered, or your conviction overturned.
We represent client throughout Nevada, including Las Vegas, Henderson, Washoe County, Reno, Carson City, Laughlin, Mesquite, Bunkerville, Moapa, Elko, Pahrump, Searchlight and Tonopah.
For information on federal criminal appeals in California, see our article on federal criminal appeals in California.