APPELLATE PROCEDURE

Notes

(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Pub. L. 98–473, title II, §210, Oct. 12, 1984, 98 Stat. 1987; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.)

Notes of Advisory Committee on Rules—1967

Subdivision (a). The appealability of release orders entered prior to a judgment of conviction is determined by the provisions of 18 U.S.C. §3147, as qualified by 18 U.S.C. §3148, and by the rule announced in Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951), holding certain orders respecting release appealable as final orders under 28 U.S.C. §1291. The language of the rule, “(an)n appeal authorized by law from an order refusing or imposing conditions of release,” is intentionally broader than that used in 18 U.S.C. §3147 in describing orders made appealable by that section. The summary procedure ordained by the rule is intended to apply to all appeals from orders respecting release, and it would appear that at least some orders not made appealable by 18 U.S.C. §3147 are nevertheless appealable under the Stack v. Boyle rationale. See, for example, United States v. Foster, 278 F.2d 567 (2d Cir., 1960), holding appealable an order refusing to extend bail limits. Note also the provisions of 18 U.S.C. §3148, which after withdrawing from persons charged with an offense punishable by death and from those who have been convicted of an offense the right of appeal granted by 18 U.S.C. §3147, expressly preserves “other rights to judicial review of conditions of release or orders of detention.”

The purpose of the subdivision is to insure the expeditious determination of appeals respecting release orders, an expedition commanded by 18 U.S.C. §3147 and by the Court in Stack v. Boyle, supra. It permits such appeals to be heard on an informal record without the necessity of briefs and on reasonable notice. Equally important to the just and speedy disposition of these appeals is the requirement that the district court state the reasons for its decision. See Jones v. United States, 358 F.2d 543 (D.C. Cir., 1966); Rhodes v. United States, 275 F.2d 78 (4th Cir., 1960); United States v. Williams, 253 F.2d 144 (7th Cir., 1958).

Subdivision (b). This subdivision regulates procedure for review of an order respecting release at a time when the jurisdiction of the court of appeals has already attached by virtue of an appeal from the judgment of conviction. Notwithstanding the fact that jurisdiction has passed to the court of appeals, both 18 U.S.C. §3148 and FRCrP 38 (c) contemplate that the initial determination of whether a convicted defendant is to be released pending the appeal is to be made by the district court. But at this point there is obviously no need for a separate appeal from the order of the district court respecting release. The court of appeals or a judge thereof has power to effect release on motion as an incident to the pending appeal. See FRCrP 38 (c) and 46(a)(2). But the motion is functionally identical with the appeal regulated by subdivision (a) and requires the same speedy determination if relief is to be effective. Hence the similarity of the procedure outlined in the two subdivisions.

Notes of Advisory Committee on Rules—1972 Amendment

Subdivision (c) is intended to bring the rule into conformity with 18 U.S.C. §3148 and to allocate to the defendant the burden of establishing that he will not flee and that he poses no danger to any other person or to the community. The burden is placed upon the defendant in the view that the fact of his conviction justifies retention in custody in situations where doubt exists as to whether he can be safely released pending disposition of his appeal. Release pending appeal may also be denied if “it appears that an appeal is frivolous or taken for delay.” 18 U.S.C. §3148. The burden of establishing the existence of these criteria remains with the government.

Notes of Advisory Committee on Rules—1994 Amendment

Rule 9 has been entirely rewritten. The basic structure of the rule has been retained. Subdivision (a) governs appeals from bail decisions made before the judgment of conviction is entered at the time of sentencing. Subdivision (b) governs review of bail decisions made after sentencing and pending appeal.

Subdivision (a). The subdivision applies to appeals from “an order regarding release or detention” of a criminal defendant before judgment of conviction, i.e., before sentencing. See Fed.R.Crim.P. 32. The old rule applied only to a defendant's appeal from an order “refusing or imposing conditions of release.” The new broader language is needed because the government is now permitted to appeal bail decisions in certain circumstances. 18 U.S.C. §§3145 and 3731. For the same reason, the rule now requires a district court to state reasons for its decision in all instances, not only when it refuses release or imposes conditions on release.

The rule requires a party appealing from a district court's decision to supply the court of appeals with a copy of the district court's order and its statement of reasons. In addition, an appellant who questions the factual basis for the district court's decision must file a transcript of the release proceedings, if possible. The rule also permits a court to require additional papers. A court must act promptly to decide these appeals; lack of pertinent information can cause delays. The old rule left the determination of what should be filed entirely within the party's discretion; it stated that the court of appeals would hear the appeal “upon such papers, affidavits, and portions of the record as the parties shall present.”

Subdivision (b). This subdivision applies to review of a district court's decision regarding release made after judgment of conviction. As in subdivision (a), the language has been changed to accommodate the government's ability to seek review.

The word “review” is used in this subdivision, rather than “appeal” because review may be obtained, in some instances, upon motion. Review may be obtained by motion if the party has already filed a notice of appeal from the judgment of conviction. If the party desiring review of the release decision has not filed such a notice of appeal, review may be obtained only by filing a notice of appeal from the order regarding release.

The requirements of subdivision (a) apply to both the order and the review. That is, the district court must state its reasons for the order. The party seeking review must supply the court of appeals with the same information required by subdivision (a). In addition, the party seeking review must also supply the court with information about the conviction and the sentence.

Subdivision (c). This subdivision has been amended to include references to the correct statutory provisions.

Committee Notes on Rules—1998 Amendment

The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only.

Amendment by Public Law

1984 —Subd. (c). Pub. L. 98–473 substituted “3143” for “3148” and inserted “and that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or in an order for a new trial” after “community”.

Issues

In this case, the Supreme Court will decide whether a lower court’s determination of an individual’s non-statutory insider status during a bankruptcy proceedings should be reviewed using the de novo standard or the clearly erroneous standard. The designation of insider status matters because, under 11 U.S.C. § 1129(a)(10), an insider—both as officially defined by the statute and as defined by the more expansive case law (a non-statutory insider)— is not permitted to vote during the consideration of a debt restructuring plan, even if his debt interests are harmed by the plan. U.S. Bank National Association argues that when a party appeals its designation as a non-statutory insider, courts should apply a de novo standard of review to such analysis, because it is either a pure question of law or at least a mixed question of law and fact. In contrast, Village at Lakeridge contends that courts should apply a clear error standard to this question because it involves pure fact. U.S. Bank National Association argues that de novo review prevents forum shopping and promotes judicial uniformity. Village at Lakeridge counters that de novo review undermines judicial economy and wastes party resources. 

Questions as Framed for the Court by the Parties

Written by

Edited by

Additional Resources

Issues

This case asks the Supreme Court to decide whether a defendant who has pled guilty to the possession of a firearm should receive automatic plain-error relief if the defendant was not advised that an element of the offense is that he knew of his status as a felon. Petitioner United States argues that the guilty plea should not be reversed because plain-error review applies and insists that Respondent did not make the requisite showing of case-specific prejudice. Respondent Michael Andrew Gary counters that the guilty plea should be reversed because plain-error review does not apply in this case and that in the event that it does apply, case-specific prejudice is not required due to the error’s classification as “structural.” The outcome of this case will affect the obligations and strategies of criminal defendants and prosecutors, as well as the burden on the judicial system.

Questions as Framed for the Court by the Parties

Written by

Edited by

Additional Resources

Committee Notes on Rules—1998 Amendment

The Federal Courts Improvement Act of 1996, Pub. L. No. 104–317, repealed paragraphs (4) and (5) of 28 U.S.C. §636(c). That statutory change means that when parties consent to trial before a magistrate judge, appeal lies directly, and as a matter of right, to the court of appeals under §636(c)(3). The parties may not choose to appeal first to a district judge and thereafter seek discretionary review in the court of appeals.

As a result of the statutory amendments, subdivision (a) of Rule 3.1 is no longer necessary. Since Rule 3.1 existed primarily because of the provisions in subdivision (a), subdivision (b) has been moved to Rule 3(a)(3) and Rule 3.1 has been abrogated.

Committee Notes on Rules—1998 Amendment

The Federal Courts Improvement Act of 1996, Pub. L. No. 104–317, abolished appeals by permission under 28 U.S.C. §636(c)(5), making Rule 5.1 obsolete. Rule 5.1 is, therefore, abrogated.