United States v. Fisher
Decision Date | 13 July 2017 |
Docket Number | 15-CR-19-A |
Parties | UNITED STATES OF AMERICA, v. GEORGINA FISHER, Defendant. |
Court | U.S. District Court — Western District of New York |
The Defendant, Georgina Fisher, has filed a notice of interlocutory appeal (Docket No. 178) from this Court's Decisions and Orders denying her motion to dismiss for (1) alleged grand jury misconduct (Docket No. 149); and (2) alleged governmental interference with Fisher's Sixth Amendment right to counsel of her choice (Docket No. 175). The parties are presently scheduled to appear on July 18, 2017 to set a trial date and to address any other outstanding issues.
The filing of a notice of appeal ordinarily divests a district court of jurisdiction. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). A premature notice of appeal, however, does not have that same effect. See United States v. Rodgers, 101 F.3d 247, 251-52 (2d Cir. 1996) (); United States v. Salerno, 868 F.2d 524, 539 (2d Cir. 1989) ( ). The question whether Fisher's appeal is premature is, of course, for the Second Circuit to decide. But because "the filing of a premature notice of appeal does not render a district court powerless to preside over a criminal case before it," the Court has jurisdiction to assess whether, in its view, Fisher's appeal is premature and, thus, whether the Court retains jurisdiction over this case. In re Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp., Nos. M9-150, 13-MJ-2814, 2014 WL 4629624, at *2 (S.D.N.Y. Aug. 29, 2014).
"In criminal cases, the final judgment rule is 'at its strongest.'" United States v. Wallach, 870 F.2d 902, 905 (2d Cir. 1986) (quoting Flanagan v. United States, 465 U.S. 249, 264 (1984)). As a result, in criminal cases the Supreme Court and the Second Circuit have identified only a handful of issues that fall within the collateral order exception to the final judgment rule. Fisher's motion to dismiss, as noted, was based on (1) alleged grand jury misconduct; and (2) alleged governmental interference with Fisher's Sixth Amendment right to use her assets to hire the counsel of her choice.
Fisher's notice of appeal appears to be premature. Both the Supreme Court and the Second Circuit have held that various forms of arguable grand jury misconduct do not fall within the collateral-order exception. See Midland Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989) ( ); United States v. Wallach, 870 F.2d 902, 905-07 (2d Cir. 1989) (arguable violations of Rule 6(d)). See also United States v. Moreno-Green, 881 F.2d 680, 683 (9th Cir. 1989) ( ...
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