Release in a Criminal Case

(a) Appeal from a Pretrial Release or Detention Order. An appeal from a pretrial release or detention order must be expedited. Appellant must make immediate arrangements for preparation of all necessary transcripts, including the transcript of proceedings before a magistrate judge, and notify the court in writing of those arrangements. Unless otherwise ordered by the court or a judge thereof, the following schedule will apply: (1) Not later than 10 days after the transcript of record is filed, the appellant must serve and file an original and 4 copies of a memorandum of law and fact setting forth as many of the matters required by Circuit Rule 9(b) as are relevant.

The memorandum of law and fact must be accompanied by a copy of the order under review and the statement of reasons (including related findings of fact and conclusions of law) entered by the district court. (2) The appellee may file a responsive memorandum not later than 10 days after the filing of appellant’s memorandum. Rule 9 (3) The appellant may file a memorandum in reply within 7 days after the filing of appellee's memorandum. (4) The memorandum, any response thereto, and the reply must comply with FRAP 27(d)(1)-(2).

For the government, any disclosure statement required by FRAP 26.1(b) must be filed with the memorandum of law and fact or any response thereto, unless the statement has been filed previously with the court. (5) The appeal will be determined by a panel of the court on the record and pleadings filed, unless oral argument is directed by the court. (b) Release Pending Appeal from a Judgment of Conviction. The applicant must file an original and 4 copies of an application pertaining to release pending appeal from a judgment of conviction.

The application, any response thereto, and a reply to the response must comply with FRAP 27(d)(1)- (2). The space limitations imposed by FRAP 27(d)(2) may be exceeded only if authorized by order of the court, or a judge thereof, on motion showing good cause. For the government, any disclosure statement required by FRAP 26.1(b) must be filed with any response to the application, unless the statement has been filed previously with the court. The application must contain, in the following order: (1) The name of the applicant, the district court number of the case, the offense of conviction, and the date and terms of sentence.

(2) The reasons given by the district court for the denial or, in the absence of reasons stated by the district court, an account of the facts and reasons relevant to that court's failure to grant the relief sought by the applicant. (3) Where the applicant is the defendant, a concise statement of the question or questions in- volved in the appeal, with a showing that the appeal raises a substantial question of law or fact likely to result in reversal or in an order for a new trial. See also FRAP 9(c). Sufficient facts must be set forth to present the essential background and the manner in which the question or questions arose in the district court.

(4) Where the applicant is the defendant, a certificate by counsel, or by the applicant if acting pro se, that the appeal is not taken for delay. (5) The application will be ruled upon by a panel of the court. Rule 9 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; (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 Rule 10 (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. (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. Rule 10 Circuit Rule 10 The Record on Appeal There is no corresponding Circuit Rule. Rule 10 Rule 11. Forwarding the Record (a) Appellant's Duty.

An appellant filing a notice of appeal must comply with Rule 10(b) and must do whatever else is necessary to enable the clerk to assemble and forward the record. If there are multiple appeals from a judgment or order, the clerk must forward a single record. (b) Duties of Reporter and District Clerk. (1) Reporter's Duty to Prepare and File a Transcript.

The reporter must prepare and file a transcript as follows: (A) Upon receiving an order for a transcript, the reporter must enter at the foot of the order the date of its receipt and the expected completion date and send a copy, so endorsed, to the circuit clerk. (B) If the transcript cannot be completed within 30 days of the reporter's receipt of the order, the reporter may request the circuit clerk to grant additional time to complete it. The clerk must note on the docket the action taken and notify the parties. (C) When a transcript is complete, the reporter must file it with the district clerk and notify the circuit clerk of the filing.

(D) If the reporter fails to file the transcript on time, the circuit clerk must notify the district judge and do whatever else the court of appeals directs. (2) District Clerk's Duty to Forward. When the record is complete, the district clerk must number the documents constituting the record and send them promptly to the circuit clerk together with a list of the documents correspondingly numbered and reasonably identified. Unless directed to do so by a party or the circuit clerk, the district clerk will not send to the court of appeals documents of unusual bulk or weight, physical exhibits other than documents, or other parts of the record designated for omission by local rule of the court of appeals.

If the exhibits are unusually bulky or heavy, a party must arrange with the clerks in advance for their transportation and receipt. (c) Retaining the Record Temporarily in the District Court for Use in Preparing the Appeal. The parties may stipulate, or the district court on motion may order, that the district clerk retain the record temporarily for the parties to use in preparing the papers on appeal. In that event the district clerk must certify to the circuit clerk that the record on appeal is complete.

Upon receipt of the appellee's brief, or earlier if the court orders or the parties agree, the appellant must request the district clerk to forward the record. (d) [Abrogated.] (e) Retaining the Record by Court Order. (1) The court of appeals may, by order or local rule, provide that a certified copy of the docket entries be forwarded instead of the entire record. But a party may at any time during the appeal request that designated parts of the record be forwarded.

Rule 11 (2) The district court may order the record or some part of it retained if the court needs it while the appeal is pending, subject, however, to call by the court of appeals. (3) If part or all of the record is ordered retained, the district clerk must send to the court of appeals a copy of the order and the docket entries together with the parts of the original record allowed by the district court and copies of any parts of the record designated by the parties. (f) Retaining Parts of the Record in the District Court by Stipulation of the Parties. The parties may agree by written stipulation filed in the district court that designated parts of the record be retained in the district court subject to call by the court of appeals or request by a party.

The parts of the record so designated remain a part of the record on appeal. (g) Record for a Preliminary Motion in the Court of Appeals. If, before the record is forwarded, a party makes any of the following motions in the court of appeals: ! for dismissal; ! for release; ! for a stay pending appeal; ! for additional security on the bond on appeal or on a bond or other security provided to obtain a stay of judgment; or ! for any other intermediate order- the district clerk must send the court of appeals any parts of the record designated by any party.