In two recent reported opinions, the United States Court of Appeals for the Third Circuit has reminded attorneys of the importance of raising claims of error and objections in the trial court before pursuing them on appeal. Failing to do so could have dire consequences.
Case One
First, in United States v. Hughes, No. 22-1756 (3d Cir. Sept. 3, 2024), the court declined to overturn the appellant’s robbery conviction even while acknowledging the trial court’s “obvious error.” The trial court gave an erroneous instruction, telling the jury that an attempted robbery was sufficient to convict under the statute at issue. But in light of a later Supreme Court ruling, that instruction was incorrect—only a completed robbery would suffice. Yet the appellant never objected to the instruction before the trial court, which confined the court to plain-error review.
Plain-error review requires the appellant to show “(1) that the court erred, (2) that the error is obvious, (3) that it ‘affected the outcome of the district court proceedings,’ and (4) that it ‘seriously affects the fairness, integrity, or public reputation of those proceedings.’” In other words, an obvious error isn’t enough. And that was the appellant’s downfall in Hughes: the court held that the record, viewed as a whole, contained a “mountain of evidence that he completed the robberies” and that therefore “a properly instructed jury would still have convicted him.” No matter that the trial court committed an “obvious error”; the appellant’s sentence was affirmed.
Case Two
Second, in Ross v. Administrator East Jersey State Prison, No. 23-1240 (3d Cir. Sept. 30, 2024), the appellant grappled with the consequences of his first appellate counsel’s checking the wrong box on a form. That seemingly minor mistake resulted in the appellant’s state-court appeal being placed on the wrong track—whereas the appellant sought a plenary merits appeal, his appeal was placed on the accelerated sentence-review track. The Appellate Division refused to move his appeal to the merits track or to address merits issues he raised, instead affirming his sentence in a single-paragraph opinion.
Through various stages of post-conviction litigation, the appellant failed to raise ineffective assistance of his initial appellate counsel for checking the wrong box—until, that is, his federal habeas petition reached the Third Circuit. But before the court could consider the merits of this new ineffective-assistance argument, since he was raising it for the first time on appeal, the appellant had to show both cause for his procedural default and actual prejudice resulting from the claimed ineffective assistance of counsel. Because the appellant failed to address prejudice, the court affirmed denial of his habeas petition.
Though Hughes and Ross are both criminal cases, they are a stark reminder to litigators in all fields that the bar for a successful appeal is higher if issues are not litigated in the trial court before being raised on appeal—the same plain-error rule applies in civil cases when issues are not raised to the trial judge before being appealed. So, make your record in the trial court. Thoroughly consider the issues, raise all critical arguments, and timely object on the record when required. If you don’t, you’ll face a steeper climb on appeal—and your client might be the one to suffer.
This article originally appeared on Freeman Mathis & Gary, LLP. www.fmglaw.com
About the Author:
Andrew W. Sheppard is an associate at Freeman Mathis & Gary, LLP. andrew.sheppard@fmglaw.com