Opinion
Case No. 1:03 CR 162 DAK.
December 6, 2004
ORDER
This matter is before the court on Defendant's "Motion for Order Granting Permission to Appeal Interlocutory Order." After examining the briefs and the record, the court has determined that oral argument would not materially assist the determination of this motion. The court has considered carefully the memoranda and other materials submitted by the parties as well as the relevant law. Now being fully advised, the court renders the following Order.
The court's Order denying Defendant's Motion to Dismiss the Indictment was entered on September 21, 2004. On October 1, 2004, Defendant filed the subject motion requesting the court grant Defendant permission to appeal the court's Order pursuant to Rule 5(a)(3) of the Federal Rules of Appellate Procedure and 28 U.S.C. § 1292. The Government opposes the motion on the grounds that the Order is not a final decision under 28 U.S.C. § 1291 nor does it satisfy the collateral order doctrine — an exception that allows a small class of decisions that do not terminate the underlying action to be appealed under § 1291. See Midland Asphalt Corp. v. United States, 489 U.S. 794, 798-99 (1989) (discussing the collateral order exception). Even though Defendant's initial motion cites § 1292 as the basis for the appeal, Defendant's reply memorandum seems to assert an argument under § 1291 by adopting the Government's legal framework and arguing that the requirements of the collateral order doctrine have been met.
It is not clear why Defendant is seeking the district court's permission to file an appeal if he truly believes the requirements of the collateral order doctrine have been satisfied. Generally speaking, the Defendant would simply appeal the Order and allow the Court of Appeals to determine whether there is appellate jurisdiction. See, e.g., United States v. Storey, 2 F.3d 1037 (10th Cir. 1993) (dismissing an appeal of a district court's order denying defendant's motion to dismiss the indictment because it was not an appealable order under the collateral order doctrine). It is true that Rule 5(a)(3) of the Federal Rules of Appellate Procedure extends the time for a party to request an appellate court's permission to appeal when the party must first obtain the district court's permission, but Defendant cites no authority as to why the district court's permission is required under the facts and circumstances of this case.
Defendant's motion does cite to 28 U.S.C. § 1292 which contains a provision allowing a district court judge to certify an order that is not otherwise appealable, but that provision only applies to civil actions. See 28 U.S.C. § 1292(b) ("When a district judge, in making in a civil action an order not otherwise appealable under this section. . . .") (emphasis added); see also United States v. Pace, 201 F.3d 1116, 1119 (9th Cir. 2000) ("This is not a civil action. It is a criminal prosecution. Because of the statutory qualification, section 1292(b) certifications cannot confer interlocutory appellate jurisdiction in criminal prosecutions."). Because the instant case is a criminal prosecution, the court cannot certify the Order for appeal under 28 U.S.C. § 1292(b). Moreover, 28 U.S.C. § 1291 does not provide a procedure by which a district court can certify, give permission, or express an opinion as to whether an appellate court has jurisdiction under the collateral order doctrine to hear an appeal. Accordingly, Defendant's request for an order granting permission to appeal must be denied.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Defendant's Motion for Order Granting Permission to Appeal Interlocutory Order is DENIED.