NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 21-1538 ________________

UNITED STATES OF AMERICA

v.

JOSE HERNANDEZ-VASQUEZ,

Appellant ________________

Appeal from the United States District Court for the Middle District of Pennsylvania (D. C. No. 4-17-cr-00175-001) District Judge: Honorable Matthew W. Brann ________________

Argued on October 19, 2022

Before: GREENAWAY, JR., MATEY and ROTH, Circuit Judges

(Opinion filed April 24, 2023)

Ronald A. Krauss (ARGUED) Office of Federal Public Defender 100 Chestnut Street Suite 306 Harrisburg, PA 17101

Counsel for Appellant

Geoffrey W. MacArthur (ARGUED) Office of United States Attorney 240 West Third Street Suite 316 Williamsport, PA 17701

Counsel for Appellee

________________

OPINION* ________________

ROTH, Circuit Judge

Jose Hernandez-Vasquez contends that the District Court erred in denying his

motion to dismiss his indictment. The government asserts that we lack appellate

jurisdiction to review this appeal. For the reasons below, we agree with the government

and will grant its motion to dismiss.

I.

While incarcerated, Hernandez-Vasquez was indicted for first-degree murder for

allegedly murdering his cellmate. After a competency evaluation pursuant to

(b) and 4247(b), the District Court determined that Hernandez-Vasquez was not

competent to stand trial at that time due to mental disease or defect. Under § 4241(d), he

was committed to the U.S. Attorney General’s custody for further evaluation and treatment.

After Hernandez-Vasquez completed the sentence that he was serving, the Bureau

of Prisons filed a civil commitment action under

in the Western District

of Missouri, where he was physically located. Determining that he suffered from a mental

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 disease or defect that created substantial risk of injury to others, the court had him civilly

committed.

Shortly after that, the District Court granted the government’s motion to medicate

Hernandez-Vasquez involuntarily to try to restore his competency. Hernandez-Vasquez’s

treating physician had determined that he was unlikely to be restored to competency in the

foreseeable future.

Hernandez-Vasquez then moved to dismiss the indictment for first-degree murder.

He argued that “because he is unlikely to be restored to competency in the foreseeable

future, continuing to hold him under indictment violates his due process rights.”1 The

District Court denied the motion, concluding that Ҥ 4241 does not mandate dismissal of

the indictment, and Hernandez-Vasquez’s due process rights have not been infringed.”2

This appeal followed. The government moved to dismiss for lack of appellate jurisdiction.

II.3

We lack jurisdiction to review this appeal. Appellate jurisdiction is generally

limited to final judgments. 4 Although there are circumstances in which an appellate court

can review an order before final judgment, this appeal is not one of them.

1 Appx. 5. 2 Appx. 6. 3 The District Court had jurisdiction under

. The government argues that we lack jurisdiction on appeal. We review de novo “an argument alleging a lack of appellate jurisdiction.” Doe v. College of New Jersey,

, 493 n.3 (3d Cir. 2021) (quoting United States v. Mitchell,

(3d Cir. 2011) (en banc)). 4

. 3 The Supreme Court first announced the collateral-order exception in Cohen v.

Beneficial Industrial Loan Corporation 5: A non-final order is appealable if it (1) would

“conclusively determine the disputed question,” (2) would “resolve an important issue

completely separate from the merits of the action,” and (3) is “effectively unreviewable on

appeal from a final judgment.”6 The Supreme Court has stressed that this exception is not

only limited in nature but is also applied “with the utmost strictness” in criminal cases.7

The Court has recognized only a few circumstances in criminal cases that fall within this

exception: the denial of motions to dismiss an indictment under the Double Jeopardy

Clause,8 to reduce bail,9 and to dismiss an indictment under the Speech and Debate

Clause.10 These limited exceptions all satisfy the third Cohen prong because they involve

a “‘right not to be tried’ which must be upheld prior to trial if it is to be enjoyed at all.”11

In these circumstances, the beginning of trial would destroy the “practical value” of the

right.12 For example, “[t]he right guaranteed by the Double Jeopardy Clause is more than

the right not to be convicted in a second prosecution[,] . . . it is [also] the right . . . not to

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(1949). 6 United States v. Wright,

(3d Cir. 2015) (quotations omitted) (quoting Coopers & Lybrand v. Livesay,

(1978)); see also Abney v. United States,

(1977) (citing Cohen,

).

F.3d at 140 (quoting Flanagan v. United States,

(1984)). 8

9 Flanagan,

(citing Stack v. Boyle,

(1951)). 10

(citing Helstoski v. Meanor,

(1979)). 11 United States v. MacDonald,

(1978); Flanagan, 465 U.S. at 265–66. 12 Flanagan,

(quoting United States v. Hollywood Motor Car Co.,

(1982)). 4 be tried for the offense.”13 In other words, the value of being protected from a second

prosecution would be irreparably destroyed the moment the trial began.14

We recognize that Hernandez-Vasquez has a right not to be tried due to his

incompetency to stand trial. The District Court’s order, however, does not violate this

right, as it is protected through his commitment under § 4246. He will face trial only if his

competency is restored. Should that occur, he will no longer have a right not to be tried.

Hernandez-Vasquez argues that the appealable error exists because the trial is likely to

never happen.15 The unlikeliness of trial, however, does not mean that Hernandez-

Vasquez’s rights have been violated.

Hernandez-Vasquez argues that we should find that he has a right to be free from

indefinite indictment as it would otherwise violate due process. We have yet to consider

such an argument. Hernandez-Vasquez asserts that permitting the indefinite indictment

forces him to suffer continuously the emotional turmoil and physical stress that facing trial

produces. We are not persuaded. Whether or not Hernandez-Vasquez is indicted, he would

13 Id. (citing Abney, 431 U.S at 660–61). 14 The Supreme Court has distinguished challenges involving the “right not to be tried [from] a right whose remedy requires the dismissal of charges.” Midland Asphalt Corp. v. United States,

(1989) (quotations omitted) (quoting Hollywood Motor Car Co.,

). The former “rests upon an explicit statutory or constitutional guarantee that trial will not occur.”

The Court has named several examples of the latter: challenges involving a denial of motions alleging violations of grand jury secrecy,

the right to a speedy trial, MacDonald,

, vindictive prosecution, Hollywood Motor Car Co.,

, and sufficiency of the indictment, Abney,

. Because these circumstances do not involve a right not to be tried, they do not satisfy the third Cohen prong and thus fall outside the collateral-order exception. 15 Appellant Br. at 14–15. 5 still face the threat of trial because the crime for which he is charged, first-degree murder,

has no statute of limitations. In other words, if we were to dismiss the indictment, there

would be nothing to stop the government from re-indicting Hernandez-Vasquez

tomorrow—or even fifty years from now. Thus, dismissing the indictment would not

alleviate the threat that he identifies as the source of his turmoil. Accordingly, we conclude

that the District Court’s refusal to dismiss the indictment does not violate Hernandez-

Vasquez’s right to due process.

III.

We conclude that Hernandez-Vasquez’s appeal does not fall under the collateral

order exception. We will therefore grant the government’s motion to dismiss.

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