CLD-046 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 18-3098 ___________

IN RE: MICHAEL RINALDI, Petitioner ____________________________________

On a Petition for Writ of Mandamus from the United States District Court for the Middle District of Pennsylvania (Related to M.D. Pa. Crim. No. 3-18-cr-00279-002) District Judge: Joseph F. Saporito, Jr. ____________________________________

Submitted Pursuant to Rule 21, Fed. R. App. P. November 29, 2018 Before: CHAGARES, RESTREPO and SCIRICA, Circuit Judges

(Opinion filed: December 20, 2018)

_________

OPINION* _________

PER CURIAM

Michael Rinaldi is a federal prisoner proceeding pro se and in forma pauperis. On

August 21, 2018, a grand jury sitting in the United States District Court for the Middle

District of Pennsylvania charged Rinaldi with conspiracy to distribute and possess with

intent to distribute a controlled substance, in violation of

. At the

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. arraignment, Rinaldi—who was represented by counsel—refused to sign the plea form

and the Court entered a plea of not guilty on his behalf. The District Court docket report

reflects that the case is still in its pre-trial stages.

On September 16, 2018, Rinaldi filed a petition for a writ of mandamus in this

Court. In the petition, Rinaldi asserts that at his arraignment, he moved to dismiss the

charge against him on the grounds that: (1) he is not the “Michael Rinaldi” named in the

indictment; (2) the indictment fails to allege that the criminal activity had an effect on

interstate commerce;1 and (3) the agent who “brought the claim” lacks standing because

he did not suffer any actual or threatened harm. According to Rinaldi, the Magistrate

Judge refused to rule on the motion on the ground that it could not be brought at the

arraignment. For these reasons, Rinaldi asks us to order the District Court to dismiss the

indictment.

“Mandamus provides a drastic remedy that a court should grant only in

extraordinary circumstances in response to an act amounting to a judicial usurpation of

power.” In re Diet Drugs Prods. Liab. Litig.,

, 378 (3d Cir. 2005) (internal

quotation marks omitted). To demonstrate that mandamus is appropriate, a petitioner

must demonstrate that “(1) no other adequate means exist to attain the relief he desires,

(2) [his] right to issuance of the writ is clear and indisputable, and (3) the writ is

appropriate under the circumstances.” Hollingsworth v. Perry,

(2010)

1 Rinaldi also filed a written pro se motion to dismiss the indictment on the ground that it failed to charge an effect on interstate commerce. The District Court struck the motion from the record because Rinaldi was represented by counsel.

2 (per curiam) (internal quotation marks and citation omitted). The first prerequisite

“emanates from the final judgment rule: mandamus must not be used as a mere substitute

for appeal.” Gillette v. Prosper,

(3d Cir. 2017) (quoting In re Diet

Drugs, 418 F.3d at 379) (internal quotation marks and citation omitted).

Rinaldi has not met his burden. First, we note that nothing in the record confirms

Rinaldi’s representation that he moved the Magistrate Judge to dismiss his indictment at

his arraignment. For this reason alone, he has not demonstrated that his right to issuance

of the writ “is clear and indisputable.” However, even taking Rinaldi’s allegations as

true, he can, through counsel, re-file his motion at an appropriate time in the District

Court, and can appeal any adverse ruling on that motion. Therefore, he has not

demonstrated that “no other adequate means exist to attain the relief he desires.”2

Accordingly, we will deny the petition.

2 In his mandamus petition, Rinaldi also contends that, at the arraignment, the Magistrate Judge refused to accept a plea agreement he claims to have entered into with the government. Rinaldi asks us to compel the Magistrate Judge to “accept [his] guilty plea and determine [his] ability to pay the associated fine.” (Pet. 2-3.) Because Rinaldi has not provided any evidence of this alleged agreement, and we see none in the record, we will not issue the writ on this basis. 3