Direct criminal appeals in federal circuit courts are not often winner cases. One reason is that U.S. Attorney’s Offices have discretion to choose strong cases and abundant resources to prosecute them. But just as important is another reason: in general, the appellate review process is designed to insulate the decisions of district courts and the verdicts of juries from interference by higher courts. Some appellate judges might even be grateful for deferential standards of review, which help them to clear their dockets more efficiently. This is particularly true in the criminal context, where appellate judges see countless ineffective appeals and, in some cases, might be unsympathetic to convicted defendants as a class. In any event, it is easy for judges to adopt a default narrative for criminal direct appeals: someone who is probably guilty wants to avoid serving his or her sentence.
Practitioners doing post-conviction defense work should be mindful of this context when selecting and briefing issues on appeal. Although every direct criminal appeal is an uphill battle, there are strategies for choosing and framing issues that increase the probability of reversal. A successful practitioner will frame the case with a counter-narrative that is more compelling than any default assumption that the case is just like the rest. This course reviews strategies for doing so with respect to each of the common issues that may arise on direct appeal. For each issue, the course includes a discussion of the applicable standard of review, as well as potential advantages and pitfalls of arguing the issue.
The course is led by two attorneys from Holland & Knight LLP, Lee Vartan and Joshua McLaurin. Mr. Vartan is a partner at the firm. From 2007 through 2011, he was a federal prosecutor in New Jersey, where he prosecuted various white collar and cyber offenses, including money laundering crimes, securities fraud, racketeering, computer intrusion and mail, wire and bank fraud. Mr. McLaurin is a litigation associate who clerked on the U.S. Court of Appeals for the Eleventh Circuit from 2014 to 2015.
Lee Vartan is a member of the firm's White Collar Criminal Defense and Government Investigations, Litigation and Privacy and Data Security groups.
Lee represents companies and individuals in both criminal and civil regulatory investigations and prosecutions by the Department of Justice, the Securities and Exchange Commission, the Federal Trade Commission, and state attorneys general. Lee is also an experienced trial attorney, having tried nearly a dozen federal jury trials in New Jersey and New York.
Immediately prior to joining the firm, Lee was a partner in the New York office of an international law firm. Before that, he had a distinguished, seven-year career in federal and state government service. From 2007 to 2011, Lee served as a federal prosecutor in New Jersey. While serving as a federal prosecutor, he successfully tried a number of white collar and cyber cases to verdict, including money laundering cases, securities fraud, racketeering, computer intrusion, and mail, wire, and bank fraud.
In 2011, Lee served in New Jersey Governor Chris Christie’s counsel’s office, advising the governor and senior administration officials on policy and legislation. He was elevated to chief of staff to the New Jersey attorney general and then served as executive assistant attorney general.
As the executive assistant attorney general, Lee managed the day-to-day activities for the 8,100-person Department of Law and Public Safety including supervision of the New Jersey State Police, Division of Criminal Justice, Division of Gaming Enforcement and Division of Consumer Affairs. For the Division of Criminal Justice, he oversaw hundreds of investigations and prosecutions involving healthcare fraud, financial fraud, securities fraud and public corruption. For the Division of Gaming Enforcement, he managed the implementation of New Jersey's Internet gaming law and the licensing of both Internet gaming providers and “brick-and-mortar” casinos. Lee also served as New Jersey's liaison to the National Association of Attorneys General (NAAG), where he was responsible for determining New Jersey's participation in multi-state, attorney general-led enforcement actions in the areas of data privacy, consumer fraud and off-label prescription drug marketing.
Lee also served for several years as an adjunct professor at Seton Hall Law School, where he taught a course on the investigation and prosecution of federal cybercrimes.
Joshua McLaurin is a New York litigation attorney and previously served as a law clerk to the Honorable Jill A. Pryor of the U.S. Court of Appeals for the Eleventh Circuit.
As a law student, Mr. McLaurin was an editor of the Yale Law & Policy Review as well as a classroom instructor and board member for the Marshall-Brennan Constitutional Literacy Project, a teaching program in public high schools that educates students about their constitutional rights and trains them in oral advocacy. Also while in law school, Mr. McLaurin initiated and won a pro se appeal in the Court of Appeals of Georgia, which clarified that any member of the public may petition Georgia trial courts to record proceedings electronically.
Truly excellent. Provided a framework that would be useful in a number of situations.
The presenters interacted very well together and provided a good background of the subject matter.
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