Richard F. Gibbons, Jr., PLC
APPEALS OF FEDERAL CRIMNAL PROSECUTIONS
 
Governments: Federal Government: Employees & Officials

The Solicitor General of the United States has the authority to determine whether the federal government will appeal an order, a judgment, or a verdict in a federal criminal prosecution. Certain appeals or petitions must be approved by the Solicitor General.

The Solicitor General must approve an appeal of an order that releases a defendant who has been charged or convicted, an appeal of a decision that is adverse to the federal government, or a petition for a rehearing en banc, that is, a rehearing before a full appellate court. The Solicitor General must also approve a petition for a writ of mandamus or other extraordinary relief, a request for a different district court judge when an appellate court has remanded or returned a case to the district court, a request for a recusal of an appellate court judge, or a petition for a writ of certiorari to the United States Supreme Court.

United States Attorneys should generally report all court decisions to the Appellate Section of the United States Department of Justice if the decisions are adverse to the federal government and are appealable. United States Attorneys are also required to report certain adverse sentencing decisions to the Appellate Section. Such adverse sentencing decisions include downward departures from the Federal Sentencing Guidelines based on a defendant's criminal history, downward departures in sexual abuse cases involving children, illegal adjustments for a defendant's acceptance of responsibility, and sentences that are below the statutory minimum.

In seeking authorization for an appeal, United States Attorneys should send certain documents to the Appellate Section. Such documents include a memorandum that sets forth the reasons for the appeal, the order or the opinion that is sought to be appealed, any relevant motions or transcripts, and the presentence report, the judgment, and the commitment order if the United States Attorneys are appealing a sentencing decision.

In seeking authorization for a petition for a rehearing en banc or a rehearing before a full appellate court, United States Attorneys should send to the Appellate Section the appellate court's opinion, any briefs that were filed in the appeal, and a memorandum that sets forth the reasons for the rehearing.

After the Appellate Section receives a United States Attorney's request for authorization for an appeal or for a rehearing, an attorney in the Appellate Section is selected to write a memorandum that contains a recommendation for the Solicitor General. If the Appellate Section agrees with the United States Attorney's recommendation, the United States Attorney's recommendation and the Appellate Section's recommendation are forwarded to the Solicitor General. If the Appellate Section disagrees with the United States Attorney's recommendation, a Deputy Assistant Attorney General will review the recommendations. Although an Assistant to the Solicitor General may review the recommendations and may write a memorandum, the Solicitor General is personally responsible for authorizing an appeal or a petition for a rehearing.

The federal government has 30 days from the date of a judgment or from a defendant's notice of appeal in which to file a notice of appeal. The government has 60 days from the date of an adverse habeas corpus or forfeiture proceeding in which to file a notice of appeal. The government has 14 days from the date of an appellate court's judgment in which to file a petition for a rehearing. The government has 90 days from the date of an appellate court's denial of a petition for a rehearing in which to file a petition for a writ of certiorari with the United States Supreme Court.

Copyright 2007 LexisNexis, a division of Reed Elsevier Inc.


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