United States v. Mala

• Court: Court of Appeals for the First Circuit
• Decided: October 27, 1993
• Docket: 91-2229
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

_________________________

No.  91-2229

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                            KELLY MALA, a/k/a KELLEY MALA,

                                Defendant, Appellant.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Jaime Pieras, Jr., U.S. District Judge]
                                             ___________________

                              _________________________

                                        Before

                                Breyer, Chief Judge, 
                                        ___________

                           Selya and Stahl, Circuit Judges.
                                            ______________

                              _________________________

Ronald Cohen, by Appointment of the Court, for appellant.
               ____________
               Jorge E.  Vega-Pacheco,  Assistant United  States  Attorney,
               ______________________
          with whom Charles  E. Fitzwilliam, United States Attorney, was on
                    _______________________
          brief, for the United States.

                              _________________________

                                   October 27, 1993

                              _________________________

SELYA, Circuit Judge.  Defendant-appellant Kelley Mala,
                    SELYA, Circuit Judge.
                           _____________

          a  resident of the U.S. Virgin Islands, appeals his conviction on

          various  drug-related  charges.   We  affirm,  without prejudice,

          however, to Mala's right to explore certain contentions in a more

          appropriate forum.

                                          I.
                                          I.
                                          __

                                      Background
                                      Background
                                      __________

                    On January 4, 1989, a federal grand jury in Puerto Rico

          indicted Mala.  The grand jury twice revised the bill,  a process

          that culminated in a  five-count superseding indictment against a

          total of  fourteen defendants.  Three  counts targeted appellant,

          charging him  with conspiracy to  import cocaine into  the United

          States, 21  U.S.C.    963 (1988),  conspiracy to possess  cocaine

          with intent to distribute it, 21 U.S.C.   846 (1988), and using a

          telephone  to  facilitate importation  of  cocaine,  21 U.S.C.   

          843(b) (1988). 

                    Most of the named defendants were promptly arrested and

          tried.    Some  were convicted,1  some  were  not.   Withal,  the

          government exhibited  seeming indifference toward  appellant.  It

          was  not  until February  22,  1991    some  25 months  after the

          original indictment  surfaced    that government agents  arrested

____________________

               1We affirmed the convictions.  See United States v. Valencia
                                              ___ _____________    ________
          Lucena,  925  F.2d  506 (1st  Cir.  1991).    Although the  facts
          ______
          surrounding appellant's  alleged crimes  are, for the  most part,
          unimportant  to  the  disposition  of this  appeal,  the  factual
          predicate  of  his  case  is  substantially   the  same  as  that
          undergirding the other defendants'  convictions.  Accordingly, we
          refer the reader who thirsts for additional detail to our earlier
          opinion.  See id. at 509-10, 512-13.
                    ___ ___

                                          2

him in St. Thomas, took him to Puerto Rico, and  arraigned him on

          March 8, 1991.

                    From that  point forward, matters progressed  at a more

          celeritous clip.   On  April 22,  1991,  Mala filed  a motion  to

          dismiss  the  indictment  on  speedy  trial  grounds, or  in  the

          alternative, to  suppress certain  evidence.  The  district court

          denied  the motion  on May  17.   Four days  later, Mala  filed a

          notice  of  appeal  contesting  the  denial  of  his  prayer  for

          suppression.    Undeterred  by  the appeal,  the  district  court

          ordered  the trial  to commence  on May  23, 1991,  as previously

          scheduled.  On May 30, a jury found appellant guilty on all three

          counts.

                    Two potentially significant events occurred between the

          date  of the verdict  and the imposition  of sentence.   Some six

          weeks   after  the   trial  ended,   this  court   dismissed  the

          interlocutory appeal  for want of jurisdiction  after determining

          that  the order refusing to suppress evidence was not immediately

          appealable.   In roughly the  same time frame,  appellant filed a

          pro  se motion  alleging, among  other things,  that he  had been
          ___  __

          victimized  by ineffective  counsel.   The district  judge denied

          this initiative on procedural grounds, ruling that such  a motion

          could not be brought in advance of sentencing.

                    On November 8, 1991, the court sentenced appellant to a

          lengthy  prison term  and imposed  other penalties.   This appeal

          followed.  In it, appellant is represented by successor counsel.

3

II.
                                         II.
                                         ___

                                       Analysis
                                       Analysis
                                       ________

                                          A.
                                          A.
                                          __

                            The Trial Court's Jurisdiction
                            The Trial Court's Jurisdiction
                            ______________________________

                    Appellant seeks to persuade us that his conviction is a

          nullity because the district court lacked authority over the case

          at  time  of  trial.    The  linchpin  of  this  asseveration  is

          appellant's  insistence that  a  case cannot  be  pending in  two

          courts at the same time; hence,  the pendency of his appeal  from

          the  refusal  to  suppress  had the  double-barrelled  effect  of

          transferring the  case to the  appellate court and  stripping the

          trial court of jurisdiction.  We are not convinced.

                    Ordinarily,  docketing  a  notice  of  appeal  ousts  a

          district court  of jurisdiction over  the underlying case.   See,
                                                                       ___

          e.g., Coastal Corp.  v. Texas  Eastern Corp., 869  F.2d 817,  819
          ____  _____________     ____________________

          (5th  Cir. 1989).   There  is,  however, an  important difference

          between  interlocutory  appeals  not specifically  authorized  by

          statute  and other,  less problematic appeals.   While  an appeal

          from  either  a  final  order  or  an  interlocutory  order  made

          immediately  appealable by  statute divests  a district  court of

          authority to proceed with respect to any matter touching upon, or

          involved  in, the appeal,  see 9 James  W. Moore et  al., Moore's
                                     ___                            _______

          Federal   Practice      203.11,  at   3-45  (2d  ed.   1993),  an
          __________________

          interlocutory  appeal  that  is  brought  without  any  colorable

          jurisdictional  basis  does not  deprive  the  district court  of

4

jurisdiction over  the underlying  case.   See  United States  v.
                                                     ___  _____________

          Ferris,  751 F.2d 436, 440  (1st Cir. 1984);  Hodgson v. Mahoney,
          ______                                        _______    _______

          460  F.2d 326, 328  (1st Cir. 1972);  see also  9 Moore's Federal
                                                ___ ____    _______________

          Practice,  supra,    203.11,  at 3-52.    Thus, when  a  litigant
          ________   _____

          purposes to appeal a plainly unappealable order,  the trial court

          may treat  the appeal for what it  is   a sham    and continue to

          exercise  jurisdiction over the case.  Were the rule otherwise, a

          litigant  bent on vexation could temporarily divest a trial court

          of jurisdiction at whim.

                    This case aptly illustrates the point.  Two days before

          his  trial  was  scheduled  to  start,  appellant  "appealed"  an

          interlocutory order that had been entered a few days earlier.  He

          did  not  identify   then,  nor  has   he  identified  now,   any

          jurisdictional hook on which  his appeal arguably might hang.   A

          transparently  invalid  appeal  constitutes  no  appeal  at  all.

          Because  Mala's  appeal was  of this  sorry stripe,  the district

          court retained the authority to try the case.

                                          B.
                                          B.
                                          __

                             The Right to a Speedy Trial
                             The Right to a Speedy Trial
                             ___________________________

                    Appellant  contends that the charges against him should

          have  been  dismissed  because  of  unpardonable  delays  in  the

          proceedings.  This  contention must rise  or fall on  appellant's

          claim  that  too long  a period  of  time intervened  between his

          indictment  and his arrest.2  This claim, in turn, implicates the
                              
          ____________________

               2Appellant also asserts that  the 75-day delay between March
          8  and  May 23  violated  the  statutory  requirement that  trial
          commence within 70 days  following arraignment.  See 18  U.S.C.  
                                                           ___

                                          5

Sixth Amendment, for the Speedy Trial Act, 18 U.S.C.    3161-3174

          (1988),  is  not applicable  to  periods  of delay  antedating  a

          defendant's  arrest.  See United  States v. Zandi,  769 F.2d 229,
                                ___ ______________    _____

          233 (4th Cir. 1985); United States v. Haiges, 688 F.2d 1273, 1274
                               _____________    ______

          (9th Cir. 1982).

                    The Sixth Amendment provides in pertinent part that "in

          all criminal prosecutions, the accused shall enjoy the right to a

          speedy .  .  . trial."    U.S. Const.,  Amend.  VI.   This  right

          attaches upon indictment or arrest,  whichever first occurs.  See
                                                                        ___

          United States v. MacDonald, 456 U.S. 1, 6-7 (1981); Dillingham v.
          _____________    _________                          __________

          United  States,  423 U.S.  64, 64-65  (1975)  (per curiam).   The
          ______________

          constitutional assurance serves many laudable purposes, chief  of

          which is  to  limit  the possibility  that  memories  will  fade,

          witnesses  disappear, and  needless  delay  impair  an  accused's

          ability  to defend himself.  See United States v. Ewell, 383 U.S.
                                       ___ _____________    _____

          116, 120 (1966). 

                    In  Barker v. Wingo,  407 U.S. 514  (1972), the Supreme
                        ______    _____

          Court  established  a four-part  balancing  test  to be  used  in

          determining  whether  a  defendant's  constitutional  right  to a

          speedy trial  has been abridged.  These  four factors are (1) the

          length of  the delay;  (2) the  reasons for  the  delay; (3)  the
                              
          ____________________

          3161(c)(1) (1988).   This assertion  need not detain  us.   Delay
          "resulting from  any  pretrial motion,  from  the filing  of  the
          motion  through the conclusion of the hearing on, or other prompt
          disposition  of,  such motion,"  is  excludable  for purposes  of
          determining compliance vel  non with the statutory  mandate.  Id.
                                 ___  ___                               ___
          at     3161(h)(1)(F).   Since  appellant  filed several  pretrial
          motions, including the April 22 motion (which was not disposed of
          until May 17, see supra  Part I), the thrust of his  Speedy Trial
                        ___ _____
          Act claim misses the mark.

                                          6

defendant's posture vis-a-vis the delay, especially in respect to

          assertions  of the  speedy  trial right;  and  (4) the  prejudice

          stemming from  the delay.  Id.  at 530.  These  factors cannot be
                                     ___

          plugged into  a formula that operates  with scientific precision.

          Rather, they must be considered on a case-by-case basis "together

          with such other circumstances as may be relevant."  Id.
                                                              ___

                    Attempting   to  apply   the   Barker   test   in   the
                                                   ______

          circumstances at bar frustrates meaningful appellate review.  The

          devoir  of persuasion rests with  the appellant to  show error in

          the  ruling below.   Although  he filed  a motion to  dismiss the

          indictment  on speedy trial grounds, he did not accompany it with

          affidavits or  other materials of  evidentiary quality.   What is

          more, he did not request an evidentiary hearing.  In the end, the

          district  court denied the  motion without holding  a hearing and

          without making  specific findings.   The briefs on  appeal evince

          that  the facts relevant to the second, third, and fourth furcula

          of the Barker test are  hotly disputed.  We have no  reliable way
                 ______

          of resolving these factual disputes in the rarified atmosphere of

          an appellate bench.  It follows inexorably that appellant  cannot

          carry  his burden  of demonstrating  error in  the ruling  below:

          without better  factual insights, we  can neither  shrug off  the

          possible  existence of  a scenario  completely supportive  of the

          district court's ruling nor measure the relative probabilities as

          among competing scenarios.   Consequently,  Mala's assignment  of

          error cannot prevail.

                    To illustrate  our dilemma,  it might well  be, as  the

7

government suggests,  that appellant  eluded arrest;  or, knowing

          about the indictment, failed to assert his speedy trial right for

          a protracted period of time;  or, having had the good fortune  to

          observe  a dress rehearsal of  the government's case, suffered no

          cognizable  prejudice  through  the  delay.   If  an  evidentiary

          hearing  shows any  such scenario  to  be true    and  we do  not

          suggest that  this will (or will not) prove to  be the case   the

          facts  might   well  defeat   appellant's  speedy   trial  claim,

          notwithstanding  the  extremely  long period  of  pre-arraignment

          delay.3  See,  e.g., Doggett v. United  States, 112 S.  Ct. 2686,
                   ___   ____  _______    ______________

          2691 (1992); United  States v.  Brock, 782 F.2d  1442, 1447  (7th
                       ______________     _____

          Cir. 1986).  On this inscrutable record, we simply cannot tell.

                    Nor  is it unbefitting to  decide the point  based on a

          burden-of-proof rule where, as here, appellant can fairly be held

          accountable  for the opacity of the record.  Under federal motion

          practice,  no automatic  entitlement  to  an evidentiary  hearing

          exists.  See Aoude v.  Mobil Oil Corp., 892 F.2d 1115,  1120 (1st
                   ___ _____     _______________

          Cir.  1989) (explaining  that  pretrial motions  "do not  usually

          culminate  in  evidentiary  hearings").   Thus,  a  litigant  who

          believes that  evidence should be taken in  order to put a motion
                              
          ____________________

               3Although  a  25-month  period  of  delay is  "presumptively
          prejudicial,"  Barker,  407  U.S.  at  530,  it  is  nevertheless
                         ______
          essential to inquire  into the remaining components  of the test.
          The  length of the delay is merely "a triggering mechanism," id.,
                                                                       ___
          and   courts  frequently  have  found  presumptively  prejudicial
          periods  of  delay  to be  fully  justified  after  examining the
          complete  set of Barker factors.  See, e.g., Robinson v. Whitley,
                           ______           ___  ____  ________    _______
          2  F.3d 562, ___ (5th Cir. 1993)  [1993 U.S. App. LEXIS 23270, at
          *27]; United States  v. Aquirre,  994 F.2d 1454,  1457 (9th  Cir.
                _____________     _______
          1993); United States v. Colombo, 852 F.2d 19, 26 (1st Cir. 1988);
                 _____________    _______
          Flowers v. Fair, 680 F.2d 261, 262 (1st Cir. 1982).
          _______    ____

                                          8

into  proper perspective must, at  the very least,  call the need

          for a  hearing to the court's attention and ask that a hearing be

          convened.  A  party who  fails to meet  this precondition  cannot

          then  complain that the court did not  hold a hearing that it was

          never asked  to hold.   See  United States  v. Tardiff,  969 F.2d
                                  ___  _____________     _______

          1283,  1286 (1st  Cir. 1992);  Teamsters, Etc.,  Local No.  59 v.
                                         _______________________________

          Superline  Transp.  Co., 953  F.2d 17,  20  n.4 (1st  Cir. 1992).
          _______________________

          District judges are not expected to be mind readers. 

                    To  sum  up,  "[d]ue   process  does  not  entitle  the

          defendant  to  an evidentiary  hearing  where  the defendant  has

          failed to request one."  Tardiff, 969 F.2d at 1286; accord United
                                   _______                    ______ ______

          States v. Rigby,  896 F.2d 392, 395 (9th Cir.  1990).  Because an
          ______    _____

          evidentiary  hearing  was neither  sought  nor  convened in  this

          instance,  the assignment  of error  premised on  the defendant's

          constitutional  right to  a  speedy trial  succumbs  for want  of

          satisfactory proof.4

                                          C.
                                          C.
                                          __

                                Ineffective Assistance
                                Ineffective Assistance
                                ______________________

                    The Sixth Amendment also provides that persons  accused

          of crimes shall receive the benefit of counsel for their defense.

          See  U.S. Const.,  Amend. VI.   Appellant  maintains that  he was
          ___

          denied this  safeguard because his trial  counsel performed below

          any acceptable standard of proficiency.  While this suggestion is
                              
          ____________________

               4Of course, trial counsel's  failure properly to pursue this
          Sixth  Amendment issue raises  effectiveness of  counsel concerns
          that appellant  may wish to  explore in  future proceedings,  see
                                                                        ___
          infra  Part II(C); but those  concerns do not,  at this juncture,
          _____
          constitute grounds for reversal on direct appeal.

                                          9

not  implausible on its face, we do  not think it is ripe for our

          consideration.  We explain briefly.

                    We  have  held  with  a  regularity  bordering  on  the

          monotonous  that fact-specific  claims of  ineffective assistance

          cannot make their debut on direct review of criminal convictions,

          but,  rather, must originally be presented to, and acted upon by,

          the trial court.5  See,  e.g., United States v. McGill,  952 F.2d
                             ___   ____  _____________    ______

          16, 19 (1st  Cir. 1992); United States v. Natanel,  938 F.2d 302,
                                   _____________    _______

          309 (1st Cir. 1991), cert. denied, 112 S. Ct. 986  (1992); United
                               _____ ______                          ______

          States  v. Hunnewell, 891 F.2d  955, 956 (1st  Cir. 1989); United
          ______     _________                                       ______

          States v. Costa,  890 F.2d  480, 482-83 (1st  Cir. 1989);  United
          ______    _____                                            ______

          States v. Hoyas-Medina, 878 F.2d 21, 22 (1st Cir. 1989);   United
          ______    ____________                                     ______

          States  v.  Carter, 815  F.2d 827,  829  (1st Cir.  1987); United
          ______      ______                                         ______

          States v.  Kobrosky, 711 F.2d 449, 457 (1st Cir. 1983).  The rule
          ______     ________

          has a  prudential aspect.  Since claims of ineffective assistance

          involve  a binary analysis   the defendant must show, first, that

          counsel's performance was constitutionally deficient and, second,

          that  the  deficient  performance  prejudiced  the  defense,  see
                                                                        ___

          Strickland  v. Washington, 466 U.S. 668, 687 (1984)   such claims
          __________     __________

          typically require  the resolution  of factual issues  that cannot

          efficaciously be addressed in the first instance by  an appellate

          tribunal.  See Costa, 890 F.2d at  483; Hoyas-Medina, 878 F.2d at
                     ___ _____                    ____________

____________________

               5Mala did file  a motion  in the district  court seeking  to
          raise  the question of ineffective  assistance.  See  supra p. 3.
                                                           ___  _____
          Nonetheless,   the  district  court   dismissed  the   motion  on
          procedural  grounds  without  reaching   the  question  of  trial
          counsel's effectiveness, and appellant  has not assigned error to
          that ruling.  For our purposes, then, the motion is a nullity.

                                          10

22.  In  addition, the trial judge, by  reason of his familiarity

          with the case, is usually in the best position to assess both the

          quality of the legal representation afforded to the  defendant in

          the  district court  and  the impact  of  any shortfall  in  that

          representation.  Under ideal  circumstances, the court of appeals

          should have  the benefit of this evaluation; elsewise, the court,

          in effect, may be playing blindman's buff.  

                    To be  sure, we have occasionally  undertaken review of

          ineffective assistance claims on  direct appeal, even without the

          advantage of the district court's views.  See, e.g., Natanel, 938
                                                    ___  ____  _______

          F.2d  at 309.   But we travel  this route only  when the critical

          facts are not in dispute and the record is sufficiently developed

          to allow reasoned consideration of the claim.  See id.
                                                         ___ ___

                    Although appellant  invokes the exception on the theory

          that  any  lawyer  worth   his  salt  would  have  requested   an

          evidentiary hearing, we  think this  case falls  well within  the

          compass of the usual rule.  Even if we assume arguendo that trial
                                                        ________

          counsel's performance was constitutionally deficient, appellant's

          thesis runs afoul  of the  second prong of  the Strickland  test.
                                                          __________

          Under that prong, a criminal defendant must "show that there is a

          reasonable  probability that,  but  for counsel's  unprofessional

          errors, the result  of the proceeding would have been different."

          Strickland,  466 U.S.  at 694.   On  the sparse  record presently
          __________

          compiled,  we cannot say whether, had the speedy trial claim been

          litigated  fully, it likely  would (or would  not) have  led to a

          dismissal  of the  indictment.   See  supra  Part II(B).    Thus,
                                           ___  _____

11

because the record does not furnish proper illumination to enable

          us  to  assess  probable   outcomes,  the  issue  of  ineffective

          assistance is prematurely before us.

                    When faced with similar situations in comparable cases,

          we  have routinely dismissed  the relevant portion  of the appeal

          without  prejudice  to  the  defendant's right  to  litigate  his

          ineffective assistance claim through the medium of an application

          for  post-conviction relief.  See,  e.g., McGill, 952  F.2d at 19
                                        ___   ____  ______

          n.5  (dismissing assignment  of  error without  prejudice to  the

          filing  of a  petition in  the district  court under 28  U.S.C.  

          2255); Hunnewell, 891  F.2d at 956  n.1 (same).   We follow  this
                 _________

          sound practice today   but with an added wrinkle.

                    Three things coalesce  here:  (1) appellant has shown a

          fair  likelihood of  success  on the  constitutional claim,6  (2)

          that claim  is factually complex  and legally intricate,  and (3)

          the  facts  are largely  undeveloped and  appellant (who  is both

          incarcerated and indigent) is severely hampered in his ability to

          investigate  them.  This seems, therefore, to be the rare section

          2255  case  in which  the     appointment     of     counsel   is

          warranted.     See    18 U.S.C.      3006A(a)(2)(B)  (1993 Supp.)
                         ___

          (stipulating  that,  if "the  interests  of  justice so  require,

          representation may  be provided [under the  Criminal Justice Act]

          for any financially  eligible person who . .  . is seeking relief

____________________

               6Our  belief that there is some likelihood of success is not
          a finding, but merely an acknowledgment that appellant has limned
          a colorable claim.  We take no view of the appropriate resolution
          of future proceedings.

                                          12

under section  . .  .  2255 of  title 28");  see  also Battle  v.
                                                       ___  ____ ______

          Armontrout, 902 F.2d 701,  702 (8th Cir. 1990) (holding  that the
          __________

          district  court  abused  its  discretion in  failing  to  appoint

          counsel for habeas corpus  petitioner); Richardson v. Miller, 721
                                                  __________    ______

          F.Supp. 1087  (W.D.Mo. 1989) (finding, on  particular facts, that

          the interests of justice  dictated appointment of counsel in  a  

          2255  case).   We thus  direct the  district court,  if appellant

          petitions  for section  2255  relief  and demonstrates  continued

          financial eligibility, to appoint counsel for him under 18 U.S.C.

            3006A(a)(2)(B).7 

                                         III.
                                         III.
                                         ____

                                      Conclusion
                                      Conclusion
                                      __________

                    We need go no  further.  We affirm the  judgment below,

          without  prejudice, however,  to appellant's  right to  raise his

          claim of ineffective assistance  in a proceeding brought pursuant

          to 28  U.S.C.   2255.   As stipulated herein, the  district court

          shall, subject  to the  strictures of the  Criminal Justice  Act,

          appoint counsel for appellant should such a proceeding eventuate.

It is so ordered.
          It is so ordered.
          _________________

____________________

               7Appellant's  present counsel  advised us  at oral  argument
          that,  if  we  found  the ineffective  assistance  claim  unripe,
          appellant would  promptly file a  petition in the  district court
          under section 2255.  Counsel also asked us to consider appointing
          an attorney to represent Mala in such an endeavor and volunteered
          so to serve.  The selection of appointed counsel is a matter best
          left to  the  court  in which  such  counsel is  to  appear  and,
          accordingly, we defer to the district court in this regard.

                                          13