FILING NOTICES OF APPEAL AND

MOTIONS TO WITHDRAW IN CRIMINAL CASES (a) Notices of Appeal. Retained counsel in criminal cases, and counsel appointed to represent a party pursuant to the provisions of the Criminal Justice Act, 18 U.S.C. § 3006A, Federal Rule of Criminal Procedure 44, or the inherent power of a federal court, must file a notice of appeal upon their client’s request. Defendant’s trial counsel, whether retained or appointed, must represent the defendant on appeal, unless the Court of Appeals grants permission to withdraw. (b) Motions to Withdraw.

A motion to withdraw on the ground that in counsel’s opinion there are no non-frivolous issues to be urged on appeal must be accompanied by a brief prepared in accordance with the procedures enunciated in Anders v. California, 386 U.S. 738 (1967), and Robinson v. Black, 812 F.2d 1084 (8th Cir. 1987). A motion to withdraw on any other ground will only be granted for good cause shown, and will rarely be granted unless another attorney has entered an appearance for the defendant on appeal or another attorney has agreed to represent the defendant on appeal and the defendant has consented to the appearance of that new attorney. -13- RULE 28A: BRIEFS (a) Briefs Filed by Registered CM/ECF Users. Briefs filed by attorneys and other registered CM/ECF users must be submitted for filing using the CM/ECF system by the date set forth in the court’s briefing schedule.

Upon receipt of the brief, the clerk will review the brief and determine whether it complies with the applicable Federal Rules of Appellate Procedure and Eighth Circuit Local Rules. If the brief complies with the rules, the clerk will file it and will send all parties a notice that the brief has been filed; registered CM/ECF users will receive their notice through an electronic Notice of Docket Activity, while attorneys and litigants who are not registered users will receive their notice by mail. Attorneys exempt from CM/ECF use must submit their briefs through email to an account which the clerk’s office will provide them. The clerk’s office will follow the procedures set out in these rules for reviewing and filing these briefs.

Upon receipt of notice that the electronic version of the brief has been accepted for filing, the attorney must comply with the other procedures concerning service and submitting the required number of paper copies. (b) Correction of Defects and Effect of Failure to Comply with this Rule. If the brief does not comply with the rules, the clerk will notify the filer that the brief is defective and will allow the filer 5 days to submit a brief which complies with the rules. In the event an appellant fails to submit a revised opening brief that complies with the rules, the clerk will issue an order directing the filer to show cause why the appeal should not be dismissed for failure to prosecute.

In the event any other filer, including an appellant filing a reply brief, fails to electronically submit a revised brief that complies with the rules, the clerk will enter an order directing the filer to show cause why an order should not be entered barring the filer from filing that brief. (c) Briefs filed by Pro Se Litigants. Pro se litigants must submit one paper copy of their merits briefs by the date set forth in the court’s briefing schedule. No additional paper copies are required.

The clerk will review the brief for compliance with the rules. If the brief is accepted for filing, the clerk will file the brief, scan it into the CM/ECF system and attach it to the docket. The clerk will then serve a Notice of Docket Activity on the registered users of CM/ECF showing that the brief has been filed. This electronic notice will constitute service of the brief on these parties.

The clerk will notify the pro se -14- litigant that the brief has been accepted for filing by sending the litigant a paper notice by mail. (d) Paper Copies of Briefs for the Court and Parties. Registered CM/ECF users and exempt attorneys should not submit paper copies of the brief until the clerk has notified them that the brief has been reviewed and filed. Within 5 days of receipt of the notice that the brief has been filed, registered users and exempt attorneys must transmit 10 paper copies of the brief to the clerk of the court.

Paper copies may be hand-delivered to the clerk’s office in St. Louis or dispatched to the clerk’s office in St. Louis in compliance with the provisions of FRAP 25(a)(2)(B). Within 5 days of receipt of the notice that the brief has been filed, attorneys must serve one copy of the paper brief on each party separately represented or proceeding pro se. Failure to submit paper copies will result in the issuance of an order to show cause. (e) Additional Copies of Briefs in En Banc Cases.

Eleven additional paper copies of briefs must be filed in cases heard en banc. (f) Legibility. The clerk is authorized to reject pro se briefs on the ground that they are illegible and cannot be scanned. If a brief is rejected on this basis, the clerk will notify the pro se party and allow a period of time for submission of a legible brief.

(g) Addendum to the Brief.

(1) CONTENTS.

Appellant must prepare an addendum and file it with the opening brief. The addendum must include: (i) a copy of the district court or administrative agency opinion or order including supporting memoranda or findings; in an immigration case, the addendum should include both the IJ decision and the BIA decision; in a Social Security case, the addendum should include the ALJ decision, the Appeals Council decision and the district court’s opinion; in a direct criminal appeal, the addendum judgment and include commitment order, as well as any other order, such as a suppression order, which forms the basis for an issue on appeal; should the (ii) any magistrate's report and recommendation that preceded the district court opinion or order; -15- (iii) other relevant rulings of the district court. The addendum may also include up to 15 pages of excerpts from the record that would be helpful in reading the brief without immediate reference to the appendix; examples of such materials include jury instructions at issue in the case, provisions of contracts or other key documents, and brief excerpts from the transcript.

(2) LENGTH.

The addendum must not exceed 15 pages excluding the district court or agency opinion and orders and the magistrate's report and recommendation.

(3) APPELLEE'S ADDENDUM.

The appellee's brief may include an addendum not to exceed 15 pages. Appellee’s in addendum must not duplicate materials contained appellant’s addendum.

(4) PAPER VERSION OF THE ADDENDUM.

The addendum will normally be incorporated into the back of the paper version of the brief, but it may be bound separately if it includes a long district court opinion or report and recommendation. If bound separately, the appellant must file the same number of addenda as briefs.

(5) ELECTRONIC VERSION OF THE ADDENDUM.

An electronic version of the addendum is required for every appellant’s brief that is submitted electronically. An electronic version of the addendum is required for every appellee’s brief submitted electronically if the appellee has elected to file the optional addendum provided for in Subsection (g)(3) of this rule. The CM/ECF system provides separate filing events for the submission of the brief and the addendum, and the electronic version of the addendum must be filed as a separate document and should not be attached to the electronic version of the brief. If the filer has access to digital version of the documents in the addendum, the documents should be converted to PDF files and submitted in PDF format.

If the filer does not have access to digital versions of the documents, the addendum may be created by scanning paper copies of the documents and converting them to PDF images. -16- (h) Technical Requirements of the Electronic Version of the Brief. (1) The electronic version of the brief submitted under Section (a) of this rule must be in a single document file. (2) Counsel must include a statement with the filing that the brief and addendum have been scanned for viruses and that the brief is virus-free. (3) The electronic version of the brief must be in Portable Document Format (also known as PDF or Acrobat Format).

The electronic version of the brief must be generated by printing to PDF from the original word processing file, so that the text of the electronic version of the addendum may be searched and copied. (i) Contents of Briefs.

(1) SUMMARY OF THE CASE.

Each appellant must file a statement not to exceed one page providing a summary of the case, the reasons why oral argument should or should not be heard, and the amount of time (typically, 10, 15, 20, or 30 minutes) necessary to present the argument. The summary must be placed as the first item in the brief. If appellee deems appellant's statement incorrect or incomplete, appellee may include a responsive statement in appellee's brief.

(2) STATEMENT OF ISSUES.

In addition to the requirement of FRAP 28(a)(5), the statement of issues must include for each issue a list of the most apposite cases, not to exceed 4, and the most apposite constitutional and statutory provisions. (j) References to the Record. Citations to a document from a district court docket should include reference to the record, the document number, and page number of the document in the following form: R. Doc. 12, at 3.

Where a brief refers to a document that appears in both an appendix and a district court docket, the brief should include parallel citations to both sources. For example: App. 25; R. Doc. 20, at 3. If an appendix in an agency appeal is paginated differently than the administrative record, then the brief should include parallel citations to both sources.

For example: App. 101; A.R. 93. In Social Security cases, parties may cite the administrative record without a parallel citation to the district court docket. -17- (k) Incorporation by Reference. A party may not incorporate by reference the contents of a brief filed elsewhere. (l) Motions to File Overlength Briefs.

Motions for leave to file overlength briefs will be granted only in extraordinary cases. A motion for permission to file an overlength brief must be submitted at least 7 days prior to the brief’s due date. (m) Calculating Response Times. For registered users of CM/ECF, the time periods for filing appellee and reply briefs set out in FRAP 28.1, FRAP 29 and FRAP 31 will be calculated from the date the court issues the Notice of Docket Activity filing the brief.

The filing times for pro se parties and attorneys not registered for CM/ECF who receive their service by mail will be calculated in accordance with the provisions of FRAP 26(c). Cross-References: FRAP 25 (filing and service), 26 (computation of time), 28, 29, 31, 32.