United States v. Perkins

• Decision Date: 13 October 1970
• Docket Number: 23722.,No. 23721,23721
• Citation: 433 F.2d 1182,140 US App. DC 76
• Parties: UNITED STATES of America v. Donald Wallace PERKINS, Appellant. UNITED STATES of America v. Gerald Leonard WHITMORE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

140 US App. DC 76, 433 F.2d 1182 (1970)

UNITED STATES of America v. Donald Wallace PERKINS, Appellant.

UNITED STATES of America v. Gerald Leonard WHITMORE, Appellant.

Nos. 23721, 23722.

United States Court of Appeals, District of Columbia Circuit.

Argued March 9, 1970.

Decided October 13, 1970.

Mr. Jay S. Weiss, Washington, D. C., for appellant in No. 23,721.

Mr. Denis K. Lane, Washington, D. C., for appellant in No. 23,722.

Mr. William S. Block, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and Daniel E. Toomey, Asst. U. S. Attys., were on the brief, for appellee.

Before McGOWAN, TAMM and ROBINSON, Circuit Judges.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

These appeals present two rather novel questions. The first concerns this court's jurisdiction to review the refusal of the District Court to order competency examinations of federal arrestees whose removal to another district is sought. The second is an inquiry as to whether the arrestees have the right under the mental competency statute¹ and Rule 40 of the Federal Rules of Criminal Procedure to a mental examination and an affirmative determination of mental competence prior to a removal hearing. Because, in the particular circumstances, we find appellants' claims in these respects to pose insubstantial interlocutory issues, we dismiss these appeals for lack of jurisdiction.

Appellants were arrested in the District of Columbia compliably with federal warrants issued in Philadelphia on a complaint charging bank robbery there.² A removal hearing, pursuant to Rule 40 (b),³ was scheduled but was twice continued, once because appellants wished to consider pleas of guilty in this jurisdiction.⁴ In the meanwhile, five persons, two of whom allegedly are our appellants, were indicted in the United States District Court for the Eastern District of Pennsylvania for offenses emanating from the robbery earlier identified in the arrest warrants.⁵ Prior to expiration of the last continuance of the removal hearing, appellants moved in the United States District Court for the District of Columbia for mental examinations, and a concomitant stay of the removal proceedings, on allegations of past mental instability suggesting the conclusion that neither was able to assist his counsel effectively. The District Judge denied the motions, and these appeals followed.

I

With exceptions not here relevant, this court, has jurisdiction only of final decisions of the District Court.⁶ On this basis, the Government argues that we have no authority over the instant appeals since there has been no judgment or sentence in these cases.⁷ Several other arguments against jurisdiction can be mustered as well. Firstly, it can be pointed out that one of the purposes behind Rule 40 was to prevent removal proceedings from being "used by defendants for dilatory purposes and in attempting to frustrate prosecution by preventing or postponing" out-of-district transfers for trial.⁸ A holding that appeal lies from an order in a removal proceeding might promote tactics tending to defeat this purpose of the Rule. Secondly, it can be urged that since any claim in defense of the prosecution can be raised in the transferee district, the arrestee suffers no irreparable loss of rights in consequence of a refusal to allow immediate appeal from orders preliminary to removal.⁹ Thirdly, it can be contended that allowing a direct appeal of orders in a removal proceeding would impinge upon the policy reflected in the statutory rule that no appeal can be taken from a habeas corpus proceeding which tests "the validity of a warrant to remove" or "the validity of the detention pending removal proceedings."¹⁰

For these reasons, the general rule has been that even the terminal removal order is interlocutory and that no appeal from it lies.¹¹ But it does not inexorably follow from the cases so holding that the appeals at bar must be dismissed. We deal here not simply with a claim that can be raised in the transferee district, nor with one that requires an examination of evidence of probable cause presented at the removal hearing;¹² review of such claims might indeed unnecessarily undercut the policy against delay in removal proceedings. We are faced, instead, with a contention that the arrestee's ability to aid counsel at the removal hearing should be suitably investigated and ascertained prior to the hearing and determination on removal.

In these circumstances, pertinent doctrine "teaches that an order, though entered prior to full adjudication of all of the issues as to all of the parties, may be appealable if it disposes of claimed rights separable though auxiliary to those pressed as the cause of action."¹³ The leading case is Cohen v. Beneficial Industrial Loan Corporation,¹⁴ in which the Supreme Court sustained the appealability of an order denying a motion to require the posting of security for the expenses of suit. The Court held that the order could be reviewed because it fell "in that small class 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."¹⁵

In deciding whether an order falls within the collateral order exception to the final judgment rule, we have been instructed to take a practical, instead of a technical, approach.¹⁶ The general policy against piecemeal litigation, of course, has particular strength where criminal proceedings are involved; as the Supreme Court admonished in DiBella v. United States,¹⁷ "the delays and disruptions attendant upon intermediate appeal are especially inimical to the effective and fair administration of the criminal law."¹⁸ In that case, the Court held that no appeal would lie from the grant or denial of a pretrial motion to suppress, in the absence of specific legislation to the contrary.¹⁹

DiBella does not mean, however, that the collateral order doctrine can have no applicability to matters relating to criminal trials. The decision there depended on two main factors: one, that allowing the appeal would entail "serious disruption to the conduct of a criminal trial"; the other, that "the legality of the search too often cannot truly be determined until the evidence at the trial has brought all circumstances to light."²⁰ Except insofar as allowing the instant appeals would delay the removal that must precede the trial, these reasons are not applicable here.

Thus we must face the question whether in light of DiBella the order appealed from falls within the collateral order doctrine. In United States v. Cefaratti,²¹ we stated that if three tests are met, an order is appealable under Cohen:

An order that does not "terminate an action" but is, on the contrary, made in the course of an action, has the finality that § 1291 requires for appeal if (1) it has "a final and irreparable effect on the rights of the parties", being "a final disposition of a claimed right"; (2) it is "too important to be denied review"; and (3) the claimed right "is not an ingredient of the cause of action and does not require consideration with it."²²

Although the Cefaratti result was discarded by DiBella, we believe that the Cefaratti approach has survived. Indeed, the Court in DiBella used essentially a similar mode of analysis in deciding, for reasons mentioned above, that a suppression order was not appealable.²³

We turn, then, to apply the Cefaratti tests to the cases at hand. With respect to the third test, it is plain that appellants' ability to help counsel at the removal hearing is a consideration directly related to that hearing rather than to the criminal action pending against them in Philadelphia. Furthermore, it seems clear that the first Cefaratti test is also met. Once an arrestee is taken to the transferee district, it appears, the procedural legality of the transfer cannot be raised;²⁴ and even if it is raised, it is unlikely that the arrestee could show prejudice from the denial of a mental competency ruling at the removal hearing.²⁵ At the transferee district, of course, the arrestee can move for a determination of his competence to stand trial, but that determination will not satisfy appellants' claim of a right to ascertainment of their competence to assist counsel at the hearing Rule 40 affords on the question whether in the first place a removal should be directed. If this claim is a valid one, it may well be lost if not passed upon now.

The third precondition to appealability is that the order be "too important to be denied review," and the courts have taken a very pragmatic approach to this aspect of the Cohen doctrine.²⁶ While appellants assert, that they will be denied due process if a competency determination is not made, the Government believes the contention is frivolous; and the importance of the controversy cannot be decided in a vacuum. Particularly since there are no decisions in point on the legal issue before us, there seems no way satisfactorily to decide whether this court has jurisdiction under the collateral order doctrine — that is whether the order under attack is "too important" for review to be denied — except to make a preliminary examination of the merits of appellants' claim²⁷ for that purpose.

II

Rule 40 specifies the procedures governing transfer of an arrestee from the district of his arrest to another district wherein the trial is properly to be held. The procedures differ, however, in material respects, according to whether the arrest takes place in a "nearby" or a "distant" district — as measured by reference to the place where the prosecution is pending or, in instances of arrests without a warrant, the place where the alleged offense was committed. "Nearby" district arrests are those which occur in another district of the same state or, if in a district in another state,...