U.S. v. Watson

• Decision Date: 12 October 2004
• Docket Number: No. 04-1913.,04-1913.
• Citation: 386 F.3d 304
• Parties: UNITED STATES of America, Appellant, v. Philip E. WATSON and Shane E. O'Hearn, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

386 F.3d 304

UNITED STATES of America, Appellant, v. Philip E. WATSON and Shane E. O'Hearn, Defendants, Appellees.

No. 04-1913.

United States Court of Appeals, First Circuit.

Heard September 15, 2004.

Decided October 12, 2004.

Appeal from the United States District Court for the District of Massachusetts, Rya W. Zobel, J James D. Herbert, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, and Jeffrey Auerhahn, Assistant United States Attorney, were on brief, for appellant.

Judith H. Mizner, Assistant Federal Public Defender, with whom Leo T. Sorokin, Assistant Federal Public Defender, was on brief, for appellees.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LIPEZ, Circuit Judge.

SELYA, Circuit Judge.

This interlocutory appeal arrives on our doorstep following the district court's denial of a brink-of-trial continuance which, according to the prosecution, was necessitated by an Executive Branch faux pas de deux. The threshold question is one of first impression: Does the Criminal Appeals Act, 18 U.S.C. § 3731, afford jurisdiction to review the specific orders issued by the district court? Concluding that the orders appealed from are not within the purview of that statute, we answer this question in the negative and dismiss the government's appeal.

In order to place the jurisdictional conundrum in context, we recount the background facts as alleged by the government. The underlying case dates back to 1997. It began with a visit by a shady character, Zachary Dulac, to the Boston-area home of defendant-appellee Phillip E. Watson. This was far from a social call: Dulac subdued Watson and his live-in girlfriend, tied them up, and stole fifty-five pounds of marijuana.

The next day, Watson called an acquaintance, Richard Maynard, and asked for assistance in evening the score. Maynard enlisted defendant-appellee Shane E. O'Hearn and one George Lubell as comrades in arms. The three men tracked Dulac to a motel in Maine. On May 31, 1997, Dulac was assaulted in the motel's parking lot. The attackers then ransacked his motel room, absconded with $17,000 in cash, and warned him that they would be back for more.

Maynard, O'Hearn, and Lubell matched the general descriptions of the three assailants. Maynard died, but the government indicted O'Hearn and Lubell, along with Watson, for conspiracy, 18 U.S.C. §§ 371, 1951; for multiple violations of the Travel Act, id. § 1952; and for using a firearm during a crime of violence, id. § 924(c). Withal, despite the information available to it, the prosecution had a gaping hole in its case: no one could positively identify O'Hearn as a participant in the enterprise.

Enter Anthony Spera, a self-professed friend of both Watson and O'Hearn. According to the government, Watson had told Spera about his umbrage over Dulac's thievery and O'Hearn had told Spera that he was one of the men who assaulted Dulac. Since Spera could link both Watson and O'Hearn to the commission of the charged crimes, he loomed as a key witness in the government's case.

Spera, however, had problems of his own. We need not dwell on the details. It suffices to say that, in due course, he pleaded guilty to unrelated federal narcotics offenses. A district judge sentenced him to serve a thirty-month incarcerative term. And because Spera was an Italian national, his conviction for an aggravated felony exposed him to mandatory deportation. See 8 U.S.C. § 1227(a)(2)(A)(iii).

Spera finished serving his prison term in December of 2002. Immediately upon his release, the Immigration and Naturalization Service (INS) detained him.¹ On January 14, 2003, the Assistant United States Attorney (AUSA) responsible for the instant case informed INS officials that the government viewed Spera as an important cog in the machinery of the upcoming criminal trial. The AUSA asked (i) that Spera not be deported until after he had testified, and (ii) that INS notify him (the AUSA) of any change in Spera's custody status. INS officials noted this two-part request, placed the AUSA's letter in Spera's immigration file, and entered an appropriate notation into their computer system.

Shortly thereafter, an immigration judge released Spera on bail pending final resolution of the removal proceedings. Spera's bail took effect on January 16, 2003. The INS apparently did not notify the AUSA of this change in Spera's status.

The criminal case proceeded slowly. Lubell managed to obtain a severance, see Fed.R.Crim.P. 14(a), and his trial began on February 23, 2004. Spera testified on February 25. One week later, the jury acquitted Lubell across the board. On the same day, the district court set a May 17 trial date for Lubell's codefendants (Watson and O'Hearn). The court later agreed to continue the case against O'Hearn, but Watson's trial date remained firm. There is no indication that the AUSA notified the INS that what originally had been anticipated to be one trial had morphed into two or more.

On May 10, the AUSA filed a motion to recuse the judge who had been presiding over the criminal case. See 28 U.S.C. § 455. The judge stepped aside. The reassignment of the case to a new trier caused a further postponement, with a joint trial scheduled to start on July 12.

During this same period, developments were occurring in connection with Spera's immigration case. According to the affidavit of James Dupont, an INS agent, the INS took Spera into custody on March 4, 2004, pending the culmination of the removal proceedings. The AUSA's letter was "located at the bottom of [Spera's] administrative file" and the notation instructing the INS to update the AUSA as to Spera's whereabouts was "inadvertently overlooked." The upshot was that the INS, without the AUSA's knowledge, deported Spera to Italy on June 1.

These bevues did not come to light until June 28, when the AUSA telephoned the INS in the course of preparation for the anticipated July 12 criminal trial. The news did not please the AUSA. Three days later, he moved to continue the trial, citing Spera's unavailability. The motion papers averred that the government needed time either to arrange for Spera's return or to take his deposition abroad. Before a hearing could be convened, the AUSA contacted Spera, who refused to return voluntarily unless the government allowed him to remain permanently in the United States. That demand left the prosecutors with only one viable option: deposing Spera abroad.

The district court held a hearing on July 8. Following the hearing, the court ruled from the bench and denied the motion for a continuance. In the course of its ruling, the court expressed concern with the potentially lengthy delay that arranging a foreign deposition would entail; voiced doubts that the proposed deposition testimony, if obtained, would be admissible at trial; noted that the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, was in play; and chastised the government, as an institution, for the comedy of errors that had led to Spera's premature deportation.

On the next day, the government filed a renewed motion. In that motion, the government (i) revived its request to continue the trial, and (ii) sought permission to depose Spera abroad pursuant to Fed. R.Crim.P. 15. The district court denied the motion forthwith. See United States v. O'Hearn, No. 01-10122, slip op., 2004 WL 1553599 (D.Mass. July 9, 2004) (unpublished). In its brief rescript, the court gave four reasons for reaffirming its earlier denial of a continuance:

1. This case is more than three years old. The indictment was returned on April 12, 2001.

2. There is a strong possibility that the Speedy Trial time has run since at least 78 days of unexcluded time appear on the record.

3. The problem, namely, the absence of the witness, was created by the inexcusable negligence of an agency of the government, albeit not the U.S. Attorney's Office. This calls into question the "unavailability" of the witness.

4. It will likely take at least 6 to 12 months to obtain the testimony of the witness. . . .

Id. at 2-3, 2004 WL 1553599. Accordingly, the court held the trial date inviolate and, in a contemporaneous electronic order, denied the motion to depose Spera abroad as moot.

The government appealed from both the July 8 and 9 orders, alleging that the district court had abused its discretion in denying the requested continuance. We stayed further proceedings in the district court, expedited the appeal, and directed the parties to brief both the merits and the threshold issue of appellate jurisdiction. We heard oral argument on September 15, 2004. For the reasons elucidated below, we now dismiss the appeal for jurisdictional reasons.

It is common ground that "appeals by the Government in criminal cases are something unusual, exceptional, not favored." Carroll v. United States, 354 U.S. 394, 400, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957). The government's ability to appeal in a criminal case is a matter of legislative grace and, thus, requires express statutory authorization. United States v. Sanges, 144 U.S. 310, 312, 12 S.Ct. 609, 36 L.Ed. 445 (1892); United States v. Horn, 29 F.3d 754, 768 (1st Cir.1994). Here, the government purports to find that authorization in the Criminal Appeals Act, 18 U.S.C. § 3731. That statute provides in pertinent part:

An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence . . . not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.

Id. (second paragraph). The statute further provides that its provisions "shall be liberally construed to effectuate" the purposes of the Act. Id. (final paragraph).

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