Common Issues in White Collar Criminal Appeals

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. 

1. Identify common issues on appeal in white collar criminal cases, along with the standard of appellate review corresponding to each
2. Assess advantages and pitfalls of arguing each issue
3. Grasp the role that unifying narratives and themes play in an appellate court’s review
4. Provide practical guidance for selection and prioritization of issues based on narratives and themes