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United States District Court, M.D. Pennsylvania

May 12, 2005.


The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge


There are few circumstances in which a district court may continue to exercise authority over a case after the filing of a notice of appeal, an "event of jurisdictional significance [that] confers jurisdiction on the court of appeals and divests the district court of its control over . . . the case."*fn1 The district court may proceed if the appeal is patently frivolous.*fn2 It may proceed if the notice relates to a non-appealable order or judgment.*fn3 It may also proceed if the appeal is taken in bad faith and would result in unwarranted delay.*fn4 The notice of appeal filed by defendant in this case represents a convergence of all of these circumstances. Despite the notice, this court retains jurisdiction over these proceedings.

The notice of appeal relates to a memorandum and order denying defendant's motion to dismiss the indictment based on speedy trial grounds. The motion was filed on April 18, 2005, two weeks before trial was scheduled to commence, and was denied on April 25, 2005. The court found, viewing the record in the light most favorable to defendant, that trial would clearly commence within the period prescribed by the Speedy Trial Act, 18 U.S.C. § 3161. (Docs. 36, 37, 40, 52).

  Three days later, the court was notified that defendant wished to change his plea to guilty. A plea colloquy was set for the date previously established for trial, and trial was continued until June 6, 2005. The plea hearing commenced as scheduled, and defendant answered a series of questions indicating that he understood the charges against him and wished to admit his guilt. Near the end of the proceeding, however, defendant abruptly changed course. He stated, contrary to the criminal information — which defendant had previously read — and contrary to the plea agreement — which defendant had previously signed — that the drug involved in his offense was cocaine hydrochloride rather than cocaine base. In light of this unanticipated factual challenge, the court was left with no choice but to adjourn the hearing. The parties were advised to prepare for a June 6, 2005, trial. (Docs. 42-44, 46, 48). The notice of appeal was filed seven days after the plea hearing, on May 9, 2005. It was filed by defendant in propria persona, apparently without the involvement of his appointed counsel. (Docs. 26, 52).

  The appeal is substantively frivolous, procedurally improper, and functionally ineffective. There is simply no question that the motion to dismiss — the subject of the notice of appeal — was properly denied. The maximum time that has run against the speedy trial clock in this case, even accepting defendant's argument as to the date on which his speedy trial rights accrued, is sixty-seven days. And, when the appropriate accrual date is considered, only twenty-three days have actually run against the speedy trial clock.*fn5 Trial will clearly commence within the seventy-day period prescribed by the Speedy Trial Act. The appeal is frivolous.*fn6

  It is also premature. Interlocutory appeals are permitted only in limited situations, when continuation of proceedings would foreclose vindication of the rights asserted. This is not such a situation. Unlike the protection afforded by the Double Jeopardy Clause [or doctrines of immunity], the Speedy Trial [Act] does not, either on its face or according to the decisions of [federal courts], encompass a `right not to be tried' which must be upheld prior to trial if it is to be enjoyed at all. It is the delay before trial, not the trial itself, that offends against the [statutory] guarantee of a speedy trial. . . . Proceeding with the trial does not cause or compound the deprivation already suffered.*fn7

 Defendant may secure full relief on his claims under the Speedy Trial Act following trial and the entry of judgment in this case. The order denying the motion to dismiss is nonappealable, and the notice of appeal is ineffective to divest this court of jurisdiction.*fn8

  The only plausible explanation for the plainly deficient notice, and the sole possible effect of the appeal, is to delay entry of final judgment. There is no issue presented in the notice of appeal that cannot be presented post-judgment, and there is no reason to postpone resolution of the general question of guilt or innocence pending appellate review. Invocation of interlocutory appellate jurisdiction could serve only to inhibit "the smooth and effective functioning of the judicial process."*fn9 The court will not countenance these efforts.*fn10

  This case will proceed to trial and judgment despite the notice of appeal.*fn11 The decision to go forward is not in any way in derogation of the jurisdiction of the Court of Appeals for the Third Circuit. The appellate court maintains exclusive authority to decide the merits of the appeal, and enjoys the discretion to stay further trial proceedings pending its decision. In short, the fact that this court views the notice of appeal as invalid does not impinge on the ability of the Court of Appeals to consider the issue de novo.*fn12

  Absent contrary appellate directive, the parties should prepare for trial. Jury selection will begin on June 6, 2005, and trial will commence immediately thereafter. An appropriate order will issue. ORDER

  AND NOW, this 12th day of May, 2005, upon consideration of the notice of appeal (Doc. 52), and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:

1. All previous scheduling orders entered in the above-captioned case remain in full force and effect.
2. Jury selection in the above-captioned case shall commence at 9:30 a.m. on Monday, June 6, 2005, in Courtroom No. 2, Ninth Floor, Federal Building, 228 Walnut Street, Harrisburg, Pennsylvania.
a. Trial shall commence as soon as practicable following the conclusion of jury selection.
b. Counsel are attached for jury selection and trial in the above-captioned case.

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