Opinion
Case No. CR-3-95-78
September 4, 2001
Attorney for Plaintiff: James D. Brubaker.
Attorney for Defendant: Beth Goldstein Lewis.
This appeal stems from the Plaintiff's prosecution of the Defendant for possession of marijuana on Wright-Patterson Air Force Base in Dayton, Ohio. After his first trial ended with a deadlocked jury, the Defendant filed a Motion to withdraw his consent to proceed before Magistrate Judge Michael R. Merz on retrial. (Defendant's Motion, Doc. #42). That judicial officer overruled the Defendant's Motion on October 4, 1999. (Magistrate Judge's Decision and Order, Doc. #50). The Defendant then filed this timely interlocutory appeal from the Magistrate Judge's denial of his Motion to withdraw his consent. (Notice of Appeal, Doc. #51). For the reasons set forth below, the Court concludes that it lacks jurisdiction over the Defendant's interlocutory appeal, which does not fit within the so-called "collateral order doctrine."
I. Analysis
Pursuant to Fed.R.Crim.P. 58(g)(2)(A), interlocutory appeals from a decision or order of the Magistrate Judge to this Court are authorized to the same extent that an interlocutory appeal may be taken from a decision or order of this Court to the Sixth Circuit. Consequently, in order to determine whether it has jurisdiction over the present appeal, the Court turns to case law governing interlocutory appeals from district courts to circuit courts. In so doing, the Court notes that interlocutory appeals in criminal proceedings are strictly limited to ensure prompt adjudication of criminal charges. Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989). However, the "collateral order doctrine permits an interlocutory appeal from a narrow class of non-final orders which `finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.'" United States v. Davis, 93 F.3d 1286, 1289 (6th Cir. 1996) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)). In order to fall within the narrow scope of the collateral order doctrine, an order must: (1) conclusively determine the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from a final judgment. Flanagan v. United States, 465 U.S. 259, 265 (1984). The Supreme Court has clarified that the third requirement is satisfied when the collateral order at issue involves "an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial."United States v. MacDonald, 435 U.S. 850, 860 (1978).
In the present case, the Defendant appeals from the Magistrate Judge's Decision and Order overruling his Motion to withdraw his consent to proceed before that judicial officer on retrial. Having reviewed the Magistrate Judge's Decision and Order, the Court concludes that it falls outside the scope of the collateral order doctrine. Without question, the ruling conclusively determined a disputed question, namely whether the Defendant should be permitted to withdraw his consent to proceed before that judicial officer. This question also is separate from the merits, which involve the Defendant's prosecution for marijuana possession. Consequently, the Defendant has satisfied the first two criteria for invoking the collateral order doctrine.
The Magistrate Judge's Decision and Order falls outside the scope of the collateral order doctrine, however, because the Defendant has failed to satisfy the third requirement set forth above. The Defendant's right to withdraw his consent is capable of being reviewed by this Court on appeal if the Defendant is convicted on retrial before the Magistrate Judge. Therefore, even if the Defendant has a right to withdraw his consent, the legal and practical value of that right will not be "destroyed" if not vindicated before his retrial. As the Supreme Court recognized in MacDonald,
[a]dmittedly, there is value — to all but the most unusual litigant — in triumphing before trial, rather than after it, regardless of the substance of the winning claim. But this truism is not to be confused with the quite distinct proposition that certain claims (because of the substance of the rights entailed, rather than the advantage to a litigant in winning his claim sooner) should be resolved before trial.MacDonald, 435 U.S. at 860 n. 7.
In recognition of the foregoing principle, the Supreme Court has found the collateral order doctrine to be inapplicable to an order denying a motion to dismiss on the basis of vindictive prosecution, United States v. Hollywood Motor Car Co., Inc., 458 U.S. 263 (1982), and to an order denying a motion to dismiss on speedy trial grounds, MacDonald, 453 U.S. at 861. Similarly, the collateral order doctrine has been found to be inapplicable to an order denying a motion to preclude the government from using allegedly illegally obtained evidence in a criminal prosecution, United States v. Miller, 14 F.3d 761, 764-65 (2nd Cir. 1994); see also United States v. Dorfman, 690 F.2d 1217, 1222 (7th Cir. 1982) ("A long line of cases clearly establishes that a defendant may not take an interlocutory appeal from an order denying a motion to suppress evidence."). In each of the foregoing cases, the court determined that the right at issue could be vindicated on appeal from a final judgment of conviction. On the other hand, the Supreme Court has found the collateral order doctrine to be applicable to an order denying a motion for pretrial bail, Stack v. Boyle, 342 U.S. 1 (1951), to an order denying a motion to dismiss on the basis of double jeopardy, Abney v. United States, 431 U.S. 651 (1977), and to an order denying a legislator's motion to dismiss a criminal prosecution as barred by the Speech or Debate Clause of the Constitution, Helstoski v. Meanor, 442 U.S. 500 (1979).
In Hollywood Motor Car Co., 458 U.S. at 269, the Supreme Court determined that the defendant's motion did not assert a right not to be tried at all. Rather, it merely asserted a right "whose remedy requires the dismissal of charges." Although the former right (i.e., the right not to be tried at all) "necessarily falls into the category of rights that can be enjoyed only if vindicated prior to trial[,] [t]he latter does not." Id.
In MacDonald, 435 U.S. at 860-61, the Supreme Court reasoned that "[i]t is the delay before trial, not the trial itself, that offends. . . ."
"Interlocutory appeals during a criminal prosecution have been limited to [these] three narrow classes of cases[.]" United States v. Miller, 14 F.3d 761, 764 (2nd Cir. 1994).
Although this Court is unaware of any case law addressing the specific issue now before it, a review of the foregoing cases and others makes clear that the collateral order doctrine is satisfied only when the legal right implicated by the order at issue cannot be vindicated after the entry of final judgment. See, e.g., Hollywood Motor Car. Co., 458 U.S. at 266. In the present case, the legal right at issue (i.e., the Defendant's asserted right to withdraw his consent to the Magistrate Judge's jurisdiction) is capable of being vindicated after the entry of a final judgment of conviction. Given that the right asserted by the Defendant is subject to full and meaningful review on appeal, the Magistrate Judge's October 4, 1999, Decision and Order (Doc. #50) falls outside the scope of the collateral order doctrine. As a result, the Court lacks jurisdiction over this interlocutory appeal.
II. Conclusion
Based on the reasoning and citation of authority set forth above, the Defendant's interlocutory appeal from the Magistrate Judge's Decision and Order of October 4, 1999, is hereby dismissed for lack of jurisdiction.