Author:McGaughey, Margaret D.

    If a criminal defendant has been found not guilty after trial, the United States has no right of appeal because the Double Jeopardy Clause precludes trying a defendant a second time on the same charges. (1) For the same reason, the United States has no right to appeal a ruling made during trial, even if it is patently wrong.

    Three statutes, however, authorize appeals by the United States in criminal cases under limited circumstances: 18 U.S.C. [section] 3731, 18 U.S.C. [section] 3742(b), and 28 U.S.C. [section] 1291. In addition, the Federal Rules of Appellate Procedure provide means by which the United States can seek further review of an adverse decision of a federal court of appeals. (2)

    Although the United States Attorneys for the ninety-four federal districts are allowed to make many choices concerning criminal prosecutions themselves, the same is not true of the decision to exercise the limited authority to appeal or to seek further review of a loss in one of the federal courts of appeals. Rather, there is an extensive internal Department of Justice process for obtaining authorization to pursue those remedies that only the Solicitor General of the United States can grant. This process can--and occasionally does--lead to disagreement among the relevant US Attorney's office, that office's counterpart in the Criminal Appellate Division of the Department of Justice (DOJ), the Office of the Solicitor General (OSG), or all three. The result is that appeals by the United States and further appellate review of government losses in criminal cases are relatively rare.


    1. 18 U.S.C. [section]3731

      The principal vehicle for the United States to appeal an adverse decision of a district court is 18 U.S.C. [section] 3731. (3) That statute authorizes government appeals of three types of rulings. The first is an order dismissing an indictment or information. (4) By statute, that option is available only if there are no double jeopardy consequences. (5) It is generally understood that jeopardy attaches once the jury is empaneled and sworn. (6) As a result, federal prosecutors endeavor to have dismissal motions decided well in advance of trial. For a time, some judges who feared being reversed would frustrate the government appeal process by ruling on a potentially appealable motion only after the jury had been chosen. That timing divested the United States of its statutory right to appeal. It now appears to be settled law that although a trial court may not have an absolute duty to decide a motion encompassed by [section] 3731 before trial begins, it should do so. (7) Double jeopardy concerns are not implicated by an appeal of a dismissal order entered before trial because if the United States prevails, the indictment or information is simply reinstated and the case proceeds to trial in the ordinary course. (8)

      A second type of appeal that [section] 3731 allows is from an order granting a new trial after verdict or judgment. In this instance as well, there are no double jeopardy implications because if the United States succeeds, the court of appeals merely reinstates the verdict or judgment. (9) A complication with respect to appeals of new trial orders arises in cases that are resolved by means of a bench trial, where a judge, not a jury, decides the issue of a defendant's factual guilt or innocence. A judgment of acquittal that follows a bench trial is the same as a verdict of acquittal after a jury trial: it cannot be appealed. (10) A judge who appreciates that a ruling against the United States might be subject to question will hold true to the responsibility not to frustrate the government's statutory right to appeal. Rather than simply find the defendant not guilty, the judge will enter a finding of guilty, but then grant a new trial so that the questionable ruling may be appealed. If the post-trial order is reversed, the verdict of guilty can be reinstated, with the result that there are no further proceedings on the question of guilt or innocence, and the defendant is not placed in jeopardy a second time.

      Section 3731 also permits an appeal by the United States of an order granting a motion to suppress or exclude evidence or requiring the return of seized property in a criminal case. A [section] 3731 appeal is available to challenge not only traditional suppression orders, but also pretrial orders granting motions in limine, which seek a ruling in advance of trial as to whether, for example, other-bad-acts evidence will be admitted pursuant to Rules 404(b) and 403 of the Federal Rules of Evidence. (11) Consistent with the statute, suppression or exclusion orders, like orders dismissing indictments, are appealable only before the defendant has been placed in jeopardy and thus must be entered before the jury is sworn. By statute, this third type of appeal also requires the US Attorney to make two certifications to the district court: "that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding." (12) The purpose of the certification requirements is to ensure that the prosecutor has carefully analyzed the case before deciding to appeal. (13) Although the late filing of the certifications will not defeat appellate jurisdiction, it does permit the court of appeals to exercise its discretion to dismiss the appeal pursuant to Rule 3(a). (14) Thus, as a matter of precaution, and consistent with the rulings of most courts that the certifications are a prerequisite to a government appeal, federal prosecutors take a variety of steps to conform to the statutory requirement. (15)

      Finally, [section] 3731 allows the United States to appeal an order releasing a person following conviction or refusing to revoke or modify the conditions of release. Release orders within the purview of this provision refer to "a temporary period when a criminal defendant is permitted to remain free from detention while awaiting trial, sentencing, or appeal." (16) Section 3731 does not encompass revocation of probation (an alternative to imprisonment) (17) or revocation of supervised release (a form of conditional liberty that follows completion of a prison term). (18) Statutory authorization to appeal release orders operates to vindicate the public's interest in ensuring that the conditions of temporary liberty while awaiting trial, sentencing, or appeal are sufficient to prevent a defendant from fleeing or committing further crimes. (19) In part, authorization for the government to appeal release orders reflects the statutory presumption against bail pending appeal that is reinforced by case precedents. (20) In this last type of [section] 3731 appeal there is no double jeopardy concern because there is no trial on the merits of the underlying criminal charge.

    2. 18 U.S.C. [section] 3742(b).

      A second statute that authorizes an appeal by the United States is 18 U.S.C. [section] 3742(b). (21) The circumstances under which the United States can appeal under this provision are the inverse of those in which the defendant is permitted to appeal under subsection (a) of the same statute, with one exception. (22) First, a government appeal is authorized if the sentence was imposed in violation of law--for example, it was below a mandatory minimum term required by such statutes as 18 U.S.C. [section] 924(e)(1), which addresses firearms offenses, or 21 U.S.C. [section] 841(b), which concerns drug offenses. (23) Second, the United States can appeal a sentence that was imposed as a result of an incorrect application of the United States Sentencing Guidelines, (24) which might occur if, for example, a sentencing judge refused to impose a guideline enhancement. (25) The third type of [section] 3742(b) appeal by the United States is of a sentence that was below the guideline range, whether achieved by a downward departure or a downward variance. (26) Finally, the United States can appeal a sentence that was imposed for a crime for which there is no guideline range and the sentence is patently unreasonable. (27) Section 3742(b) specifically provides that the government needs the "personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General" when undertaking an appeal. (28) Before the Supreme Court's decision in United States v. Booker (29) made the Sentencing Guidelines advisory instead of mandatory, [section] 3742(b) appeals by the United States were somewhat common. After Booker, however, sentencing judges have significantly greater discretion in the choice of penalty, and the number of government sentencing appeals has diminished markedly.

    3. 28 U.S.C. [section] 1291 Appeals from Grants of Habeas Corpus

      Finally, the United States is permitted to appeal an order granting habeas corpus relief under 28 U.S.C. [section] 2255, which offers the defendant a means of attacking the sentence, but, technically, not the underlying conviction. (30) Although [section] 2255 petitions arise from criminal cases, they are hybrid proceedings that in some respects are treated as civil actions. (31) Thus, the grant of habeas relief can be appealed pursuant to the final judgment rule of 28 U.S.C. [section] 1291. (32) There are no double jeopardy problems with respect to this category of appeal because if the order granting habeas relief is reversed, the judgment and sentence are reinstated and there are no further proceedings with regard to guilt or innocence.

      In prior years, appeals by the United States of [section] 2255 decisions were very rare because most petitions are filed by pro se litigants who raise ineffective-assistance claims against their trial or appellate lawyers, or sometimes both. To prevail on this type of challenge, the petitioner has the two-part burden of proving first that the lawyer's performance...

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