Appellate Decisions

Partially Objecting to an Untimely Criminal Appeal

When the government objected to only some of the issues raised in an untimely criminal appeal, the Third Circuit reviewed the remaining issues.

November 7, 2023

By Bryan Lammon

In United States v. Crump, the Third Circuit permitted the government to partially object to the untimeliness of a criminal appeal. That meant the court of appeals had to dismiss the appeal insofar as it raised the objected-to issues. But the court could address the other issues that the defendant raised on appeal.

Defendants in criminal cases have 14 days after the judgment is entered to file their notice of appeal. But unlike the civil-appeal deadline, the criminal-appeal deadline is not jurisdictional. So a late notice of appeal—and the notice in Crump was several months late—does not affect appellate jurisdiction.

Appellate courts nevertheless must enforce the criminal-appeal deadline if the opposing party objects. In Crump, the government partially objected to the timeliness of the defendant’s notice of appeal. The government objected to some sentencing-enhancement issues that the defendant raised. But it did not object to other issues, specifically whether the defendants had been convicted of crimes of violence.

The Third Circuit accordingly dismissed the appeal insofar as it challenged the sentencing enhancements. But since the government did not object to review of the crime-of-violence issues, the Third Circuit went on to review and reverse the district court’s decision on those issues.

I don’t recall ever seeing the government partially object to a late notice of appeal. But given the non-jurisdictional nature of the criminal-appeal deadline, I also don’t see any problem with this sort of partial objection. The appeal deadline exists in part to protect the appellee. And if the appellee wants to partially waive the protections of a non-jurisdictional appeal deadline, I see no reason not to allow it.

United States v. Crump, 2023 WL 7297334 (3d Cir. Nov. 6, 2023), available at the Third Circuit and Westlaw

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