10th Cir. R. 8

8.1 Required showing. A motion for a stay or an injunction pending appeal must include a clear statement of the specific relief requested. No motion for a stay or an injunction pending appeal will be considered unless the applicant addresses all of the following: (A) the basis for the district court’s or agency’s subject matter jurisdiction and the basis for the court of appeals’ jurisdiction, including citation to statutes and a statement of facts establishing jurisdiction; (B) the likelihood of success on appeal; (C) (D) the threat of irreparable harm if the stay or injunction is not granted; the absence of harm to opposing parties if the stay or injunction is granted; and (E) any risk of harm to the public interest. 29 8.2 Emergency or ex parte motions.

(A) Emergency relief. Any motion that requests a ruling within five days after filing must be plainly marked “EMERGENCY” and accompanied by a certificate stating: (1) (2) (3) (4) (5) the reason the motion was not filed earlier; the date the underlying order was entered; the time and date the order becomes effective; the telephone numbers and email addresses for all counsel of record and, where available, unrepresented parties; and in immigration cases seeking a stay of removal or other emergency relief, the petitioner must attach to the motion a copy of the transcript from the Immigration Judge’s ruling, if relevant, plus copies of the written rulings of the Immigration Judge and Board of Immigration Appeals. (B) Ex parte relief. Any motion that requests the court to act ex parte must include a certificate stating the reason it was not possible to provide notice to the other parties.

(C) Notice to Clerk. If a motion for emergency relief is contemplated, the movant must notify the Clerk in advance at the earliest practical time so that arrangements can be made for timely submission to the court. 8.3 Applications made to a single judge. (A) Emergency.

Application to a single judge for a stay of a judgment or order pending appeal is disfavored. (B) Contents. An application made to a single judge must demonstrate: (1) that notice of the application-including when, where, and to which judge the application was made and the reason for submission to a single judge-was furnished to other parties; or (2) what efforts were made to furnish notice to other parties and to contact the Office of the Clerk, or else the reasons why notice to the parties and/or to the Clerk was not required and/or possible. 30 Fed. R. App. P. Rule 9.

Release in a Criminal Case (a) Release Before Judgment of Conviction. (1) The district court must state in writing, or orally on the record, the reasons for an order regarding the release or detention of a defendant in a criminal case. A party appealing from the order must file with the court of appeals a copy of the district court’s order and the court’s statement of reasons as soon as practicable after filing the notice of appeal. An appellant who questions the factual basis for the district court’s order must file a transcript of the release proceedings or an explanation of why a transcript was not obtained.

(2) After reasonable notice to the appellee, the court of appeals must promptly determine the appeal on the basis of the papers, affidavits, and parts of the record that the parties present or the court requires. Unless the court so orders, briefs need not be filed. (3) The court of appeals or one of its judges may order the defendant’s release pending the disposition of the appeal. (b) Release After Judgment of Conviction.

A party entitled to do so may obtain review of a district-court order regarding release after a judgment of conviction by filing a notice of appeal from that order in the district court, or by filing a motion in the court of appeals if the party has already filed a notice of appeal from the judgment of conviction. Both the order and the review are subject to Rule 9(a). The papers filed by the party seeking review must include a copy of the judgment of conviction. (c) Criteria for Release.

The court must make its decision regarding release in accordance with the applicable provisions of 18 U.S.C. §§ 3142, 3143, and 3145(c). (As amended Apr. 24, 1998, eff. Dec.

1, 1998.) 31 10th Cir.

R. 9 9.1 Expedited proceedings.

(A) Release order. Review of a district court’s release order is generally expedited. (B) Application of 10th Cir.

R. 46.3(B).

In light of the expedited nature of the proceeding, the motion requirement outlined in Rule 46.3(B) does not apply to bail appeals. (C) Docketing Statement. Appellants are not required to file docketing statements in bail appeals. (D) Deferred ruling.

After reasonable notice, the court may defer ruling on a motion for release after a judgment of conviction until it disposes of the underlying direct appeal. 9.2 Procedures. Within 14 days after the docketing of the appeal or the filing of a motion for release in this court, the party seeking relief must file: (A) a memorandum containing: a statement of facts necessary for an understanding of the issues presented; the grounds for relief, including citation to relevant authorities; and a statement of the defendant’s custodial status and reporting date as relevant-the court must be notified of any change in custody status pending the review process; (1) (2) (3) and (B) an electronic appendix containing the items noted below. (Please see the court’s CM/ECF User Manual at Sections II(S) and III(G) for information regarding filing requirements and procedures for filing electronic appendices.

It may be found on the court’s website, www.ca10.uscourts.gov.) The appendix must include: (1) all release orders or rulings, together with the reasons (findings and conclusions) given by the magistrate judge or the district judge for the action taken; 32 (2) (3) (4) (5) any motion filed in the district court on the issue of release and relevant memoranda in support or opposition; transcripts of any relevant proceeding if the factual basis for the action taken is questioned; the judgment of conviction, if review is sought under Federal Rule of Appellate Procedure 9(b); and other relevant papers, affidavits, or portions of the district court record. 9.3 Response and date at issue. Within 14 days after the Rule 9.2 memorandum is filed, the opposing party should file a response or notify the court that a response will not be filed. The matter will be considered at issue after the opposing party has been given reasonable notice and an opportunity to respond.

A reply is permitted only by order of the court. 9.4 Length. Memorandum briefs filed under this rule shall be no longer than 5,200 words in length or 20 pages if typed or handwritten. All briefs filed using the word limit must contain a certification in accord with Federal Rule of Appellate Procedure 32(g).

9.5 Hard copies. No hard copies of the memorandum briefs or appendix are required. 9.6 Ruling not law of the case. Neither of the following constitutes law of the case: (A) a decision on a motion for release; or (B) a decision of an appeal from a district court’s order on release made before final disposition of the direct criminal appeal.

33 Fed. R. App. P. Rule 10. The Record on Appeal (a) Composition of the Record on Appeal. The following items constitute the record on appeal: (1) the original papers and exhibits filed in the district court; (2) the transcript of proceedings, if any; and (3) a certified copy of the docket entries prepared by the district clerk. (b) The Transcript of Proceedings.

(1) Appellant’s Duty to Order. Within 14 days after filing the notice of appeal or entry of an order disposing of the last timely remaining motion of a type specified in Rule 4(a)(4)(A), whichever is later, the appellant must do either of the following: (A) order from the reporter a transcript of such parts of the proceedings not already on file as the appellant considers necessary, subject to a local rule of the court of appeals and with the following qualifications: (i) the order must be in writing; (ii) if the cost of the transcript is to be paid by the United States under the Criminal Justice Act, the order must so state; and (iii) the appellant must, within the same period, file a copy of the order with the district clerk; or (B) file a certificate stating that no transcript will be ordered. (2) Unsupported Finding or Conclusion. If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant to that finding or conclusion.

(3) Partial Transcript. Unless the entire transcript is ordered: (A) the appellant must-within the 14 days provided in Rule 10(b)(1)-file a statement of the issues that the appellant intends to present on the appeal and must serve on the appellee a copy of both the order or certificate and the statement; 34 (B) if the appellee considers it necessary to have a transcript of other parts of the proceedings, the appellee must, within 14 days after the service of the order or certificate and the statement of the issues, file and serve on the appellant a designation of additional parts to be ordered; and (C) unless within 14 days after service of that designation the appellant has ordered all such parts, and has so notified the appellee, the appellee may within the following 14 days either order the parts or move in the district court for an order requiring the appellant to do so. (4) Payment. At the time of ordering, a party must make satisfactory arrangements with the reporter for paying the cost of the transcript.

(c) Statement of the Evidence When the Proceedings Were Not Recorded or When a Transcript is Unavailable. If the transcript of a hearing or trial is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection. The statement must be served on the appellee, who may serve objections or proposed amendments within 14 days after being served. The statement and any objections or proposed amendments must then be submitted to the district court for settlement and approval.

As settled and approved, the statement must be included by the district clerk in the record on appeal. (d) Agreed Statement as the Record on Appeal. In place of the record on appeal as defined in Rule 10(a), the parties may prepare, sign, and submit to the district court a statement of the case showing how the issues presented by the appeal arose and were decided in the district court. The statement must set forth only those facts averred and proved or sought to be proved that are essential to the court’s resolution of the issues.

If the statement is truthful, it-together with any additions that the district court may consider necessary to a full presentation of the issues on appeal-must be approved by the district court and must then be certified to the court of appeals as the record on appeal. The district clerk must then send it to the circuit clerk within the time provided by Rule 11. A copy of the agreed statement may be filed in place of the appendix required by Rule 30. (e) Correction or Modification of the Record.

(1) If any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly. 35 (2) If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded: (A) on stipulation of the parties; (B) by the district court before or after the record has been forwarded; or (C) by the court of appeals. (3) All other questions as to the form and content of the record must be presented to the court of appeals. (As amended Apr.

24, 1998, eff. Dec. 1, 1998; May 7, 2009, eff. Dec.

1, 2009.)