PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4525

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHRISTOPHER ROBERT SUEIRO,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Rossie David Alston, Jr., District Judge. (1:17-cr-00284-RDA-1)

Argued: October 31, 2019 Decided: January 9, 2020

Before KEENAN, FLOYD, and RICHARDSON, Circuit Judges.

Dismissed by published opinion. Judge Floyd wrote the opinion in which Judge Keenan and Judge Richardson joined.

ARGUED: Eugene Victor Gorokhov, BURNHAM & GOROKHOV PLLC, Washington, D.C., for Appellant. Kellen Sean Dwyer, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Ziran Zhang, BURNHAM & GOROKHOV PLLC, Washington, D.C., for Appellant. James E. Burke, IV, Trial Attorney, Child Exploitation & Obscenity Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; G. Zachary Terwilliger, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. FLOYD, Circuit Judge:

Appellant Christopher Sueiro awaits trial on four federal child pornography charges.

Throughout over a year of pretrial hearings, Sueiro consistently asked to represent himself

pursuant to Faretta v. California,

(1975). Although criminal defendants have

a Sixth Amendment right to represent themselves, that right is not absolute. See Indiana

v. Edwards,

(2008). On July 16, 2019, after a hearing, the district court

issued a written order denying Sueiro’s Faretta motion. Sueiro seeks to appeal that denial

so that he may represent himself at trial. For the reasons that follow, this Court does not

have subject-matter jurisdiction to consider Sueiro’s interlocutory appeal.

I.

Whether we have subject-matter jurisdiction over an interlocutory appeal from the

denial of a pretrial Faretta motion is a question of first impression. We review our

jurisdiction de novo. See Qingyun Li v. Holder,

(4th Cir. 2011). Under

the final judgment rule, federal appellate court jurisdiction is limited to reviewing “final

decisions of the district court.” See Flanagan v. United States,

(1984)

(quoting

). In the criminal context, this means that this Court generally

does not have appellate jurisdiction until after the imposition of a sentence. See

(citing

Berman v. United States,

(1937)); see also United States v. Lawrence,

(4th Cir. 2000).

Sueiro argues that the denial of a Faretta motion falls within a narrow exception to

the final judgment rule: the collateral order doctrine. Under this exception, a collateral

2 order is immediately appealable if it (1) “conclusively determine[s] the disputed question,”

(2) “resolve[s] an important issue completely separate from the merits,” and (3) is

“effectively unreviewable on appeal from a final judgment.” Flanagan,

(quoting Coopers & Lybrand v. Livesay,

(1978)). Under the third prong,

collateral orders in criminal cases are only “effectively unreviewable” if “an important

right . . . would be lost irreparably if review awaited final judgment.” See United States v.

Blackwell,

, 746–47 (4th Cir. 1990). 1

This is not a balancing test; to fall within the collateral order doctrine, a trial court

order must satisfy each condition. Flanagan,

(“[A] trial court order must,

at a minimum, meet three conditions.”). And in the criminal context, the trial court order

1“Lost irreparably” is a stricter variant of a phrase originating in Cohen v. Beneficial Industrial Loan Corp.,

(1949). In Cohen, a civil case, the Supreme Court found that an order was immediately appealable in part because, on appeal from a final judgment, “it w[ould] be too late effectively to review the present order and the rights conferred by the statute, if . . . applicable, w[ould] have been lost, probably irreparably.”

(emphasis added). The Supreme Court later quoted this “lost, probably irreparably” language in criminal interlocutory appeals cases. See Abney v. United States,

(1977) (considering whether a motion to dismiss an indictment on double jeopardy grounds was immediately appealable); see also United States v. MacDonald,

(1978) (considering whether a motion to dismiss an indictment on speedy trial grounds was immediately appealable). After Abney and MacDonald, the Supreme Court emphasized that “the collateral-order exception to the final judgment rule” should be applied with “the utmost strictness in criminal cases.” Flanagan,

. In Blackwell, we cited to MacDonald but omitted the word “probably” from the test, leaving “lost irreparably.” Blackwell, 900 F.2d at 746–47. Looking back almost thirty years later, it is unclear whether this was an unintentional omission or an intentional heightening of the “effectively unreviewable” standard to fit the criminal context, per the Supreme Court’s admonition in Flanagan. See

at 747 (citing Flanagan,

). Though we adhere to our precedent in Blackwell, Sueiro’s right to self- representation would not be “lost irreparably” or “lost, probably irreparably” if reviewed on direct appeal.

3 must strictly satisfy each condition. See

(“Because of the compelling interest in prompt

trials, the [Supreme] Court has interpreted the requirements of the collateral-order

exception to the final judgment rule with the utmost strictness in criminal cases.”).

On appeal, Sueiro relies heavily on civil cases holding that the denial of self-

representation is subject to interlocutory appeal. 2 Sueiro argues that if a civil litigant may

immediately appeal the denial of self-representation, when they have no constitutional right

to self-representation, then surely a criminal defendant with a Sixth Amendment right must

be able to do the same. Although that argument may have some instinctive appeal, it

overlooks the criminal-civil distinction within the collateral order doctrine. As discussed,

the Supreme Court has recognized that the final judgment rule is “at its strongest in the

field of criminal law,” because of the compelling interest in the speedy resolution of

criminal cases. Flanagan, 465 U.S. at 264–65 (internal quotation mark omitted). We are

bound by this stricter interpretation and therefore rely solely on collateral order

jurisprudence within the criminal context.

2 Although this Circuit has not so held in a published opinion, other circuits have held that the denial of self-representation in civil litigation is immediately appealable. See, e.g., Collinsgru v. Palmyra Bd. of Educ.,

(3d Cir. 1998), overruled in part on other grounds by Winkelman ex rel. Winkelman v. Parma City Sch. Dist.,

(2007); Prewitt v. City of Greenville,

(5th Cir. 1998); Devine v. Indian River Cty. Sch. Bd.,

, 578–81 (11th Cir. 1997), overruled in part on other grounds by Winkelman,

. We do not answer this question today.

4 II.

Given the narrowness of the collateral order doctrine in criminal cases, the Supreme

Court has only held that four types of orders are immediately appealable: orders denying a

Double Jeopardy Clause challenge, orders denying a Speech or Debate Clause challenge,

orders denying a motion to reduce bail, and orders allowing for the forced medication of

criminal defendants. See Sell v. United States,

, 175–77 (2003) (forced

medication); Helstoski v. Meanor,

, 506–08 (1979) (Speech or Debate

Clause); Abney v. United States,

, 655–62 (1977) (Double Jeopardy Clause);

Stack v. Boyle,

, 3–7 (1951) (bail).

Although the Supreme Court has not ruled on whether the denial of a Faretta motion

is subject to immediate appeal, it has held that a pretrial order disqualifying counsel in a

criminal case is not immediately appealable. See Flanagan,

. In Flanagan,

the Supreme Court distinguished such a counsel-related order from other criminal contexts

in which the collateral order doctrine already applied. Unlike denial of bail, the Court

explained, an order disqualifying counsel may be challenged in an appeal from a final

judgment, so it is therefore not “moot upon conviction and sentence.”

. And,

unlike rights under the Double Jeopardy and Speech or Debate Clauses, which are “sui

generis” rights “not to be tried,” the “right not to have joint counsel disqualified is . . .

merely a right not to be convicted in certain circumstances.”

.

Albeit in dictum, the Supreme Court in Flanagan also discussed the interplay

between a presumption of prejudice in an appeal from a final judgment and the third prong

of the collateral order doctrine—whether an order would be “effectively unreviewable on

5 appeal from a final judgment.”

. In Flanagan, it was an open question

whether prejudice would be presumed upon post-conviction appeal from a disqualification

order.

at 267–68. But the Court stated that if prejudice were presumed, a

disqualification order would not be “effectively unreviewable on appeal from a final

judgment” and, therefore, would not be immediately appealable.

. Today, there

is no question that if Sueiro’s Faretta motion were wrongly denied, this Court would

presume prejudice on appeal from a conviction. See McCoy v. Louisiana,

(2018) (“Violation of a defendant’s Sixth Amendment-secured autonomy ranks as

error of the kind our decisions have called ‘structural’; when present, such an error is not

subject to harmless-error review.”). In fact, the Court in Flanagan even stated that post-

conviction review of the “Sixth Amendment right to represent oneself” is “fully effective,”

because it carries a presumption of prejudice on appeal from a final judgment. See 465

U.S. at 267–68 (noting that the petitioners had “correctly conceded” this point).

To avoid application of Flanagan’s apposite dictum, Sueiro argues that a more

recently decided forced medication case should control. Like the right not to be forcibly

medicated, the right to represent oneself protects the autonomy and dignity of criminal

defendants. See McKaskle v. Wiggins,

, 176–77 (1984) (“The right to appear

pro se exists to affirm the dignity and autonomy of the accused.”). In that regard, Sueiro

believes that his Faretta right is more akin to the right not to be forcibly medicated than to

other counsel-related rights, such as the right to appointed counsel. Because Flanagan was

decided before Sell, the Supreme Court did not differentiate counsel-related rights from

forced medication. We do so here, and we find that this comparison fails in two respects.

6 First, the right not to be forcibly medicated is substantively distinct from the right

to self-representation. In Sell, the Supreme Court found that the forced administration of

antipsychotic medications is “effectively unreviewable on appeal from a final judgment,”

because “[b]y the time of trial [the defendant] will have undergone forced medication—

the very harm that he seeks to avoid.” See 539 U.S. at 176–77. The Court emphasized that

forced medication cannot be undone, even through acquittal.

. That is to say,

acquitted defendants will still have lost their “legal right to avoid forced medication.”

Although forced medication has particular fair-trial implications in the criminal context,

criminal defendants and non-defendants alike enjoy a broader right not to be forcibly

medicated. Therefore, it makes sense that a second, unmedicated trial experience, though

it may result in a fairer trial, would not cure the experience of wrongfully being medicated.

By contrast, the Sixth Amendment right to self-representation arises only in the context of

a criminal case. Put another way, there is no corresponding, broadly held “legal right to

avoid” counsel. In that sense, violation of the right to self-representation is more like other

trial rights, for which the cure is a second trial.

Second, and relatedly, Sell did not introduce an irreparable harm test into the

collateral order doctrine. Sueiro contends that, if forced to proceed with counsel in the first

instance, he would suffer an ongoing harm to his autonomy that could not be vindicated in

a second trial. But under the collateral order doctrine, irreparable harm is simply not the

test—even when it is irreparable harm to one’s autonomy or dignity. For example, the

Supreme Court has held that the denial of a motion to dismiss an indictment based on

prosecutorial vindictiveness is not immediately appealable, even though a vindictive

7 indictment surely causes irreparable harm to one’s dignity. See United States v. Hollywood

Motor Car Co.,

(1982). Accordingly, Sell is best read as a narrow addition

to the collateral order doctrine, addressing a harm (forced medication) that exists regardless

of the trial context, and therefore cannot be fully remedied by a second trial.

Given the above, we are left with strongly worded dictum from Flanagan, in which

the Supreme Court specifically cited a Faretta order as an example of a decision that would

be effectively reviewable on appeal from a final judgment. See 465 U.S. at 267–68

(“[P]ost-conviction review of a disqualification order is fully effective to the extent that the

asserted right to counsel of one’s choice is like, for example, the Sixth Amendment right

to represent oneself.”). As explained above, the later-decided forced medication case does

not undermine our application of Flanagan’s dictum in the instant appeal. If Sueiro’s

Faretta motion has been wrongly denied, he will enjoy a presumption of prejudice.

Additionally, Sueiro has not alleged that he will be unable to represent himself in a second

trial, if he is convicted and succeeds on appeal. He does assert that if acquitted with

counsel, he will never be able to represent himself. But if we were to find jurisdiction

based on this acquittal theory, then all trial rights would be subject to immediate appeal,

and the collateral order doctrine exception would swallow the final judgment rule.

Therefore, we hold that the denial of Sueiro’s Faretta motion cannot meet the third prong

of the collateral order doctrine exception, and that this Court does not have subject-matter

jurisdiction over Sueiro’s appeal. 3

3Because the third condition is not met, we need not address the first and second conditions.

8 III.

Without offering our thoughts on the merits of Sueiro’s motion, we recognize the

difficult positions of everyone involved in this case. Our jurisdiction over interlocutory

appeals is limited, especially in the criminal context. Because Sueiro will be able to

represent himself if he is convicted and we ultimately reverse the denial of his Faretta

motion, Sueiro’s right to self-representation will not be “lost irreparably if review await[s]

final judgment.” See Blackwell, 900 F.2d at 746–47. We therefore dismiss Sueiro’s appeal

for lack of jurisdiction.

DISMISSED

9