United States v. Celani

748 F.2d 363, 53 U.S.L.W. 2284
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 14, 1984
DocketNo. 84-1879
StatusPublished
Cited by15 cases

This text of 748 F.2d 363 (United States v. Celani) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Celani, 748 F.2d 363, 53 U.S.L.W. 2284 (7th Cir. 1984).

Opinion

BAUER, Circuit Judge.

Defendant Frederick George Celani appeals from the district court’s post-indictment pretrial order denying his motion for court-appointed counsel made pursuant to 18 U.S.C. § 3006A (Supp.1984). The order denying counsel was entered after a hearing wherein Celani was represented by court-appointed counsel and in which the government presented evidence indicating that the defendant had recently claimed to have a net worth of $19,619,500. Transcript of Proceedings of May 21, 1984, R. 11 at 4-5.1 The trial court denied the defendant’s motion, reasoning that the government had raised a doubt as to the defendant’s indigency and that the defendant, by relying on his affidavit attesting to his current unemployed status, had failed to come forward with evidence sufficient to justify the appointment of counsel. Order of May 22, 1984, R. 5 at 1-2. Because we conclude that the district court’s order is not appealable under 28 U.S.C. § 1291, we dismiss the appeal without deciding the merits of the order denying appointment of counsel. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 676, 66 L.Ed.2d 571 (1980).

Our jurisdiction is limited to appeals from “final decisions of the district court.” 28 U.S.C. § 1291. The Supreme Court has held that “[t]he exceptions to the final judgment rule in criminal cases are rare.” Flanagan v. United States, — U.S. —, 104 S.Ct. 1051, 1057, 79 L.Ed.2d 288 (1984). The Court emphasized that the “compelling interest in prompt trials,” id. at 1054, justifies the stringency of the final judgment rule: “the policy of Congress embodied in [Section 1291] is inimical to piecemeal appellate review of trial court decisions which do not terminate the litigation.” Id., quoting United States v. Hollywood Motor Car Co., 458 U.S. 263, 265, 102 S.Ct. 3081, 3083, 73 L.Ed.2d 754 (1982). Orders are excepted from the final judgment rule, and held appealable, only when they meet the strict three-prong test of Coopers & Lyb-rand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). That test requires that “the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal.” Id. at 468, 98 S.Ct. at 2458 (footnote omitted). See also Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Only three types of orders in criminal cases have been held to be immediately appealable under Section 1291: or[365]*365ders fixing bail, Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 1 (1951), orders denying a motion to dismiss an indictment on double jeopardy grounds, Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), and orders denying a motion to dismiss an indictment on Speech or Debate Clause grounds, Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979).

Most prejudgment orders do not meet the strict three-prong test of Coopers. In Flanagan, the Supreme Court held that an order disqualifying counsel from multiple representation is not immediately appeala-ble. The Supreme Court reasoned that a disqualification order was not “effectively unreviewable on appeal from a final judgment,” nor did it “resolve an important issue collateral to the merits of the action,” as required by Coopers. Flanagan, 104 S.Ct. at 1055-57. Other orders held not immediately appealable include orders denying a motion for dismissal based on a vindicative prosecution, United States v. Hollywood Motor Car Co., 458 U.S. 263, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982), and pretrial orders rejecting a defendant’s speedy trial claim, United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978). In addition, this circuit recently has held that a district court’s order denying a motion by the government to disqualify defense counsel in a criminal prosecution is not appealable. United States v. White, 743 F.2d 488 (7th Cir. 1984).

The question before this court is whether a pretrial order in a criminal case denying appointment of counsel on the grounds that the defendant has not carried the burden of proving his indigency, once doubt as to his financial status has been raised by the government, meets the Coopers test and is therefore appealable under 28 U.S.C. § 1291. Two circuits have held that pretrial orders denying the appointment of counsel pursuant to 18 U.S.C. § 3006A are immediately appealable. United States v. Harris, 707 F.2d 653 (2d Cir.), cert. denied, — U.S. —, 104 S.Ct. 495, 78 L.Ed.2d 688 (1983); United States v. Deutsch, 599 F.2d 46 (5th Cir.), cert. denied, 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194 (1979). These cases, however, were decided before Flanagan, and do not survive the rationale of that case.

An order denying the appointment of counsel fails both the first and third prongs of the Coopers test. An order denying the appointment of counsel is not final, and therefore fails the first prong of the Coopers test which requires that the order “conclusively determine the disputed question.” Coopers, 437 U.S. at 468, 98 S.Ct. at 2458. Pursuant to 18 U.S.C. § 3006A(c), the district court may reconsider its decision to deny counsel “at any stage of the proceedings ” and appoint counsel on finding that the defendant is financially unable to pay counsel whom he had retained.

In Firestone Tire & Rubber Co. v. Ris-jord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1980), Justice Rehnquist noted that “[i]t is not at all clear ...

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United States v. Frederick George Celani
748 F.2d 363 (Seventh Circuit, 1984)

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748 F.2d 363, 53 U.S.L.W. 2284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-celani-ca7-1984.