United States v. Fattah

83 F. Supp. 3d 632, 2015 U.S. Dist. LEXIS 9555, 2015 WL 356937
CourtDistrict Court, E.D. Pennsylvania
DecidedJanuary 28, 2015
DocketCriminal Action No. 14-409
StatusPublished

This text of 83 F. Supp. 3d 632 (United States v. Fattah) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fattah, 83 F. Supp. 3d 632, 2015 U.S. Dist. LEXIS 9555, 2015 WL 356937 (E.D. Pa. 2015).

Opinion

MEMORANDUM

BARTLE, District Judge.

Before the court is the motion of defendant Chaka Fattah, Jr. (“Fattah”) “for a Trial Continuance and Exclusion of Time Under the Speedy Trial Act” (Doc. # 106).

Fattah has been indicted on twenty-three counts of fraud, theft, and tax-related offenses. Trial is currently scheduled to commence on Monday, March 9, 2015. Fattah, who is proceeding pro se, has filed twenty pretrial motions. The court has ruled on twelve of those motions, including its denial on January 22, 2015 of his “Motion to Quash the Indictment with Prejudice for Perjury Before the Grand Jury and Due to Repeated and Intentional Government Misconduct.” See United States v. Fattah, Criminal Action No. 14409, 2015 WL 289983 (E.D.Pa. Jan. 22, 2015).

On January 23, 2015, Fattah filed a notice of appeal - seeking review of the court’s decision on that motion (Doc. # 101). That same day he also filed the instant motion for a continuance on the ground that there is pending a notice of appeal. Fattah, in effect, seeks to delay all proceedings in this court, including the trial. The initial question before us is whether we continue to have jurisdiction over this case pending the appeal.

Title 28 U.S.C. § 1291 provides for appeals of “final decisions” of the district court in criminal as well as civil actions. As the Supreme Court explained in Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), in criminal cases “there has been a firm corigres-sional policy against interlocutory or ‘piecemeal’ appeals and courts have consistently given effect to that policy. Finality of judgment has been required as a predicate for federal appellate jurisdiction.”1 Our order denying Fattah’s motion to quash clearly is not a final decision appeal-able under § 1291, which “ordinarily ‘prohibits appellate review until conviction and imposition of sentence’ in a criminal case.” United States v. Wright, 776 F.3d 134, 140 (3d Cir.2015) (quoting Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984)), United States v. Fisher, 871 F.2d 444, 448-49 (3d Cir.1989); United States v. Johns, 858 F.2d 154, 155 (3d Cir.1988).

Fattah, in his reply brief, belatedly relies on the collateral order doctrine as described in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In that diversity case, an order of the district court denied a motion to compel plaintiff to file a security bond in a stockholder’s derivative action as required by New Jersey law as a condition for proceeding with the action. The Supreme Court held that the order, although not final under 28 U.S.C. § 1291 or otherwise appealable under § 1292, was nonetheless appealable since the “claimed right ... is not an ingredient of the cause of action and does not require consideration of it.” The Supreme Court in a later ease explained that an order to be appealable under Cohen “must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978).

[634]*634The Cohen exception is very strictly construed, especially for defendants in criminal matters. Wright, 776 F.3d at 140-41. The only orders of which we are aware that fall within the Cohen exception in a criminal action are: orders denying a motion to reduce bail as excessive; orders denying motions to dismiss on double jeopardy grounds; orders denying immunity under the Speech and Debate Clause of the Constitution; and orders directing a defendant to be medicated against his or her will in order to be competent to stand trial. See Stack v. Boyle, 342 U.S. 1, 6, 72 S.Ct. 1, 96 L.Ed. 3 (1951); Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); Helstoski v. Meanor, 442 U.S. 500, 506-07, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979); Sell v. United States, 539 U.S. 166, 176, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003). We also note that the Bail Reform Act provides under certain circumstances for appeals of orders relating to bail. 18 U.S.C. § 3145.

In contrast to these enumerated situations, this court’s order denying Fattah’s motion to quash the indictment concerns the merits of the action and can be reviewed, and, if error occurred, rectified, on appeal after any trial and sentencing. Thus, it is not appealable under Cohen.

While the filing of a notice of appeal ordinarily divests the trial court of jurisdiction, our Court of Appeals has observed that “the notice of appeal from a nonappealable order does not render void for lack of jurisdiction acts of the district court performed during the interval between the filing of the notice and the dismissal of the appeal.” United States v. Leppo, 634 F.2d 101, 104 (3d Cir.1980) (citing United States v. Hitchmon, 602 F.2d 689, 691 (5th Cir.1979)); see also Venen v. Sweet, 758 F.2d 117, 120-21 (3d Cir.1985); Allen Ides, The Authority of a Federal District Court to Proceed After a Notice of Appeal Has Been Filed, 143 F.R.D. 307, 310-12 (1992). Otherwise a defendant could delay a criminal proceeding and even disrupt an ongoing trial simply by filing a piece of paper denominated a notice of appeal. Were the trial court to have its hands tied so easily, it would “leave[] the court powerless to prevent intentional dilatory tactics, foreclos[ing] without remedy the nonappealing party’s right to continuing trial court jurisdiction and inhibiting] the smooth and efficient functioning of the judicial process.” Leppo, 634 F.2d at 104 (quoting United States v. Hitchmon, 602 F.2d 689, 694 (5th Cir.1979)).

This concern exists here. Fattah’s notice of appeal seeks the review of an order denying his motion to quash the indictment.

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Related

Cohen v. Beneficial Industrial Loan Corp.
337 U.S. 541 (Supreme Court, 1949)
Stack v. Boyle
342 U.S. 1 (Supreme Court, 1952)
Abney v. United States
431 U.S. 651 (Supreme Court, 1977)
Coopers & Lybrand v. Livesay
437 U.S. 463 (Supreme Court, 1978)
Helstoski v. Meanor
442 U.S. 500 (Supreme Court, 1979)
Griggs v. Provident Consumer Discount Co.
459 U.S. 56 (Supreme Court, 1982)
Flanagan v. United States
465 U.S. 259 (Supreme Court, 1984)
Sell v. United States
539 U.S. 166 (Supreme Court, 2003)
United States v. H. William Johns
858 F.2d 154 (Third Circuit, 1988)
United States v. Christopher Wright
776 F.3d 134 (Third Circuit, 2015)
Venen v. Sweet
758 F.2d 117 (Third Circuit, 1985)

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Bluebook (online)
83 F. Supp. 3d 632, 2015 U.S. Dist. LEXIS 9555, 2015 WL 356937, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fattah-paed-2015.