United States v. Moussaoui

U.S. Court of Appeals for the Fourth Circuit
United States v. Moussaoui, 43 F. App'x 612 (4th Cir. 2002)

United States v. Moussaoui

Opinion

*613 OPINION

PER CURIAM.

Zacarías Moussaoui appeals several pretrial orders entered by the district court in connection with the criminal proceedings against him. We conclude that we lack jurisdiction over these consolidated appeals and accordingly dismiss them.

I.

Moussaoui is charged with six counts of conspiracy based upon his alleged participation in the September 11, 2001 terrorist attacks on the United States. After Moussaoui was indicted, the district court appointed counsel. Moussaoui subsequently informed the court that he wished to proceed pro se, and the district court granted this motion on June 13, 2002.

On May 3, Moussaoui filed three pro se notices of appeal challenging orders of the district court appointing counsel (Appeal No. 02-06), deferring action on Moussaoui’s motion to proceed pro se (Appeal No. 02-07), and sealing certain documents submitted to the court by Moussaoui (Appeal No. 02-08). On July 5, Moussaoui filed another pro se notice of appeal (Appeal No. 02-17), challenging rulings of the district court denying his request for a change of venue, refusing to exclude standby counsel from depositions and pretrial hearings, requiring pretrial motions to be filed by July 8, 2002, and refusing to allow Charles Freeman to participate in pretrial proceedings. We consolidated all four appeals, appointed appellate counsel for Moussaoui, and directed the parties to submit briefs regarding the question of our jurisdiction over the appeals.

II.

Our jurisdiction is generally limited to “final decisions” of the district court. 28 U.S.C.A. § 1291 (West 1993); United States v. Lawrence, 201 F.3d 536, 537 (4th Cir. 2000) (“The basic rule of 28 U.S.C. § 1291 is that finality of a judgment is a predicate for federal appellate jurisdiction.”). In the context of a criminal prosecution, a final decision is not reached until sentence is imposed. See Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 100 L.Ed. 1377. (1956).

The hmitation imposed by § 1291 notwithstanding, we do possess jurisdiction over interlocutory orders that fall within the ambit of the collateral order rule of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Under Cohen, an interlocutory order is appealable if it “relate[s] to matters outside the stream of the main action and would not be subject to effective review as part of the final judgment in the action.” Parr, 351 U.S. at 519. In criminal cases, an interlocutory order is appeal-able only if it is “(1) the trial court’s complete, formal, final rejection of the claim; (2) collateral to, and separable from, the issue of guilt or innocence; and (3) an adjudication of an important right that would be lost irreparably if review awaited final judgment.” United States v. Blackwell, 900 F.2d 742, 746-47 (4th Cir. 1990); see, e.g., Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (holding that denial of motion to dismiss indictment on double jeopardy grounds is appealable under Cohen). These requirements must be applied “with the utmost strictness.” Lawrence, 201 F.3d at 537 (internal quotation marks omitted); see DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962) (“[T]he delays and disruptions attendant upon intermediate appeal are especially inimical to the effective and fair administration of the criminal law.”).

We conclude that none of the orders challenged by Moussaoui are final decisions under Cohen. Challenges related to *614 the appointment of counsel and the right to self-representation may be reconsidered by the district court at any time and are reviewable on appeal following a conviction, and thus fail the first and third prongs of the Cohen analysis. See United States v. Celani, 748 F.2d 363, 365 (7th Cir. 1984). An order denying a change of venue is also reviewable on direct appeal. See Blackwell, 900 F.2d at 747. The order denying Moussaoui’s motion to unseal certain documents fails all three prongs of the Cohen analysis: it may be reconsidered by the district court at any time; it is intertwined with the merits of the prosecution; and it is subject to review on appeal. See United States v. Hickey, 185 F.3d 1064, 1067 (9th Cir. 1999). Finally, the order setting a final date for pretrial motions fails the second and third prongs of the Cohen analysis because (1) a party must show prejudice resulting from the imposition of such a scheduling order, cf. Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997) (holding that party must demonstrate prejudice to prevail on appeal of refusal to extend scheduling order), which means that the issue is intertwined with the merits, see Flanagan v. United States, 465 U.S. 259, 268-69, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984); and (2) such an order can be challenged effectively on appeal, see Anwar, 116 F.3d at 144 (considering appeal of refusal to grant extension of time to file brief).

III.

For the reasons set forth above, we conclude, as counsel for both parties have acknowledged, that we lack jurisdiction over all of these appeals. Accordingly, we dismiss.

DISMISSED.

Reference

Full Case Name
UNITED STATES of America, Plaintiff-Appellee, v. Zacarias MOUSSAOUI, A/K/A Shaqil, A/K/A Abu Khalid Al Sahrawi, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Zacarias Moussaoui, A/K/A Shaqil, A/K/A Abu Khalid Al Sahrawi, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Zacarias Moussaoui, A/K/A Shaqil, A/K/A Abu Khalid Al Sahrawi, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Zacarias Moussaoui, A/K/A Shaqil, A/K/A Abu Khalid Al Sahrawi, Defendant-Appellant
Cited By
5 cases
Status
Unpublished