United States District Court, M.D. Pennsylvania
May 12, 2005.
UNITED STATES OF AMERICA,
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
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
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
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.