United States v. Emakoji

• Citation: 990 F.3d 885
• Decision Date: 09 March 2021
• Docket Number: No. 20-10363,20-10363
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Solomon EMAKOJI, Defendant—Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

990 F.3d 885

UNITED STATES of America, Plaintiff—Appellee,

v.Solomon EMAKOJI, Defendant—Appellant.

No. 20-10363

United States Court of Appeals, Fifth Circuit.

FILED March 9, 2021

Jay Stevenson Weimer, Assistant U.S. Attorney, Nancy E. Larson, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Fort Worth, TX, Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.

Murdoch Walker, II, Esq., Lowther Walker, L.L.C., Atlanta, GA, for Defendant-Appellant.

Before Jones, Smith, and Elrod, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Solomon Emakoji entered a plea agreement. But when it came time to plead guilty, he requested two continuances, citing fears about traveling to the courthouse during the COVID-19 pandemic ("COVID"). The district court declined and ordered Emakoji to obtain housing in the Northern District of Texas. On appeal, we affirm in part and dismiss in part for want of jurisdiction.

I.

Emakoji participated in an alleged "romance scheme." The perpetrators used bogus social media profiles to "lure lonely women and men into romantic relationships" and "request[ ] money from the victims under materially false pretenses." Emakoji helped move some of that money from the United States to Nigeria.¹ The government thus indicted him for engaging in a monetary transaction in property derived from a specified unlawful activity in violation of 18 U.S.C. §§ 1957 and 2.

The government arrested Emakoji in Alabama, where a magistrate judge released him on the conditions that he "maintain [his] current residence" and "appear at all proceedings as required." Because the alleged crime occurred in the Northern District of Texas, the district court in Fort Worth adopted those release conditions and set Emakoji's case for a jury trial. After the court granted an initial continuance, the government and Emakoji reached a plea agreement, and the court set rearraignment—which is, as Emakoji puts it, "for all intents-and-purposes, a guilty plea hearing"—for April 6, 2020.

Meanwhile, COVID arrived in the United States. In response, Congress passed the Coronavirus Aid, Relief, and Economic Security ("CARES") Act, which says, in relevant part, that a "plea ... may be conducted by video teleconference" if "the chief judge of a district court ... specifically finds ... that felony pleas ... cannot be conducted in person without seriously jeopardizing public health and safety." CARES Act, Pub. L. No. 116-136, § 15002(b)(2), 134 Stat 281, 528–29 (2020). Accordingly, the Chief Judge of the Northern District of Texas concluded that felony pleas "cannot be conducted in person without seriously jeopardizing public health and safety" and thereby authorized district judges to conduct pleas via video. Special Order No. 13-9, at 2. Regardless, in a series of orders, the Chief Judge noted that each order was not "intended to prevent a district judge from using the judge's discretion to conduct an in-person proceeding in an individual case."²

In Emakoji's case, the district court scheduled an in-person rearraignment and maintained that format after issuance of the Chief Judge's orders. Emakoji thus brought two unopposed motions to continue.

First, on March 31, Emakoji asked to continue his rearraignment for at least forty-five days, because his lawyers lived in Georgia and feared that traveling for the rearraignment would expose them and others to COVID. The court excused those lawyers but denied the request to continue the rearraignment, concluding that local counsel would represent Emakoji.

Second, on April 2, Emakoji filed another motion to continue, because he feared that traveling for the rearraignment would expose him and others to COVID. The government did not oppose that continuance "to the extent that the defendant consents to conduct the re-arraignment hearing via video-teleconference ...." Emakoji thus amended his motion to note that he "consents to video teleconferencing."

The district court denied that motion and reached two relevant conclusions. First, given the "unknown nature of the length" of the pandemic, further delaying the rearraignment "would damage confidence in, and be contrary to, the interests of justice." And because Emakoji's offense—"facilitat[ing] financial fraud"—is "serious," the court found that the public has "a vested interest in seeing this process completed without additional delay."³

Second, the court sua sponte ordered Emakoji "to obtain housing within the Northern District of Texas within thirty days." Although the court had previously allowed Emakoji to reside in Alabama, "provided he agrees to appear at all proceedings," the court concluded that his "reluctance to appear calls into question his ability to comply with these conditions." That housing requirement "alleviate[d] the concerns [Emakoji] has about making himself available for hearings" and "ensure[d] the Court that he will comply with orders to appear." Emakoji appeals.

II.

Emakoji objects to the district court's imposition of an in-person rearraignment. The government contends that we lack jurisdiction to hear that claim under the collateral order doctrine and that the claim is moot. We lack jurisdiction and thus do not address mootness.

Generally, we have jurisdiction to review "final decisions." 28 U.S.C. § 1291. In criminal cases, that means we often cannot review any claims "until conviction and imposition of sentence." Flanagan , 465 U.S. at 263, 104 S.Ct. 1051. The collateral order doctrine, however, allows an appeal before final judgment where the district court's order (1) "conclusively determine[s] the disputed question," (2) "resolve[s] an important issue completely separate from the merits of the action," and (3) is "effectively unreviewable on appeal from a final judgment." Id. at 265, 104 S.Ct. 1051 (quoting Coopers & Lybrand v. Livesay , 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) ). We lack jurisdiction over Emakoji's in-person rearraignment claim, because (1) we narrowly apply the collateral order doctrine in the criminal context, and (2) that claim flunks the doctrine's test.

A.

The collateral order doctrine constitutes a "narrow exception" to the final judgment rule. Id. (quoting Firestone Tire & Rubber Co. v. Risjord , 449 U.S. 368, 374, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981) ). We apply that already-narrow exception "with the utmost strictness" in criminal cases,⁴ generally "limit[ing] it to the denial of only three types of motions: (1) motions to reduce bail; (2) motions to dismiss on double jeopardy grounds, and (3) motions to dismiss under the Speech or Debate Clause."⁵ An order to appear at an in-person rearraignment does not fall within any of those categories. An order that "merely ... directs the United States Marshal to take steps to ensure [a defendant's] presence at pretrial proceedings ... does not fall within" the collateral order doctrine. United States v. Silvas , No. 93-8638, 1993 WL 455638, at *2 (5th Cir. 1993) (per curiam). We thus "decline to find a new category today." Valencia , 940 F.3d at 183.

B.

We sometimes apply the collateral order doctrine in criminal cases outside those three categories.⁶ Even assuming that that is the correct approach, Emakoji's objection to the in-person rearraignment does not qualify, because the order does not "resolve an important issue completely separate from the merits of the action." Id. (cleaned up). Specifically, Emakoji's claim runs into trouble on the "importance" factor. In narrowing the types of appealable collateral orders, the Supreme Court has "rais[ed] the bar on what types of interests are ‘important enough’ to justify collateral order appeals."⁷ And in the criminal context, orders that are important enough usually "involve[ ] an asserted right." United States v. Bird , 709 F.2d 388, 391 (5th Cir. 1983) (cleaned up).

Emakoji does not propound that he has a right to an in-person rearraignment. Instead, he cites several of the Chief Judge's special orders. Even supposing that such orders could create a right to a video rearraignment, they have not done so. Instead, they repeatedly note that "[n]othing in this Order is intended to prevent a judge from using the judge's discretion to conduct an in-person proceeding in an individual case." Special Order No. 13-9, at 2. Emakoji thus fails to assert a right that could establish the importance of the instant appeal.⁸

Emakoji also suggests that his in-person rearraignment claim is important, because it "directly bears on the substantial public health and welfare interests related to [COVID]." He cites a line of cases suggesting that societal interests can count as important.⁹ But he does not cite any cases applying the societal-interest rationale in the criminal context. And he does not explain how we can do so now without "find[ing] a new category" of criminal cases that are appealable under the collateral order doctrine. Valencia , 940 F.3d at 183. Moreover, where we have expanded our criminal-law collateral-order precedent, we usually have done so after identifying a constitutional¹⁰ or statutory¹¹ right at issue—not after designating some societal value. We thus decline to extend the collateral order doctrine's reach in the criminal context.

In sum, Emakoji's claim regarding the in-person rearraignment is not an immediately appealable collateral order. We thus dismiss that portion of the appeal and do not address its merits. We do, however, address the merits of the claim questioning the housing requirement.

III.

Emakoji objects to the district court's imposition of a housing requirement. By statute, a defendant may "appeal from a release or detention order," and such an appeal "shall be determined promptly."¹² We thus have jurisdiction to review the imposition of a housing requirement under 18 U.S.C. § 3145(c).¹³

The district court ordered Emakoji "to obtain housing within the Northern District of Texas within...