United States v. Sueiro

• Decision Date: 09 January 2020
• Docket Number: No. 19-4525,19-4525
• Citation: 946 F.3d 637
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Christopher Robert SUEIRO, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

946 F.3d 637

UNITED STATES of America, Plaintiff - Appellee,

v.Christopher Robert SUEIRO, Defendant - Appellant.

No. 19-4525

United States Court of Appeals, Fourth Circuit.

Argued: October 31, 2019

Decided: January 9, 2020

ARGUED: Eugene Victor Gorokhov, BURNHAM & GOROKHOV PLLC, Washington, D.C., for Appellant. Kellen Sean Dwyer, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Ziran Zhang, BURNHAM & GOROKHOV PLLC, Washington, D.C., for Appellant. James E. Burke, IV, Trial Attorney, Child Exploitation & Obscenity Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; G. Zachary Terwilliger, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Before KEENAN, FLOYD, and RICHARDSON, Circuit Judges.

Dismissed by published opinion. Judge Floyd wrote the opinion in which Judge Keenan and Judge Richardson joined.

FLOYD, Circuit Judge:

Appellant Christopher Sueiro awaits trial on four federal child pornography charges. Throughout over a year of pretrial hearings, Sueiro consistently asked to represent himself pursuant to Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Although criminal defendants have a Sixth Amendment right to represent themselves, that right is not absolute. See Indiana v. Edwards , 554 U.S. 164, 171, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008). On July 16, 2019, after a hearing, the district court issued a written order denying Sueiro’s Faretta motion. Sueiro seeks to appeal that denial so that he may represent himself at trial. For the reasons that follow, this Court does not have subject-matter jurisdiction to consider Sueiro’s interlocutory appeal.

I.

Whether we have subject-matter jurisdiction over an interlocutory appeal from the denial of a pretrial Faretta motion is a question of first impression. We review our jurisdiction de novo. See Qingyun Li v. Holder , 666 F.3d 147, 149 (4th Cir. 2011). Under the final judgment rule, federal appellate court jurisdiction is limited to reviewing "final decisions of the district court." See Flanagan v. United States , 465 U.S. 259, 263, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984) (quoting 28 U.S.C. § 1291 ). In the criminal context, this means that this Court generally does not have appellate jurisdiction until after the imposition of a sentence. See id . (citing Berman v. United States , 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937) ); see also United States v. Lawrence , 201 F.3d 536, 538 (4th Cir. 2000).

Sueiro argues that the denial of a Faretta motion falls within a narrow exception to the final judgment rule: the collateral order doctrine. Under this exception, a collateral order is immediately appealable if it (1) "conclusively determine[s] the disputed question," (2) "resolve[s] an important issue completely separate from the merits," and (3) is "effectively unreviewable on appeal from a final judgment." Flanagan , 465 U.S. 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) ). Under the third prong, collateral orders in criminal cases are only "effectively unreviewable" if "an important right ... would be lost irreparably if review awaited final judgment." See United States v. Blackwell , 900 F.2d 742, 746–47 (4th Cir. 1990).¹

This is not a balancing test; to fall within the collateral order doctrine, a trial court order must satisfy each condition. Flanagan , 465 U.S. at 265, 104 S.Ct. 1051 ("[A] trial court order must, at a minimum, meet three conditions."). And in the criminal context, the trial court order must strictly satisfy each condition. See id . ("Because of the compelling interest in prompt trials, the [Supreme] Court has interpreted the requirements of the collateral-order exception to the final judgment rule with the utmost strictness in criminal cases.").

On appeal, Sueiro relies heavily on civil cases holding that the denial of self-representation is subject to interlocutory appeal.² Sueiro argues that if a civil litigant may immediately appeal the denial of self-representation, when they have no constitutional right to self-representation, then surely a criminal defendant with a Sixth Amendment right must be able to do the same. Although that argument may have some instinctive appeal, it overlooks the criminal-civil distinction within the collateral order doctrine. As discussed, the Supreme Court has recognized that the final judgment rule is "at its strongest in the field of criminal law," because of the compelling interest in the speedy resolution of criminal cases. Flanagan , 465 U.S. at 264–65, 104 S.Ct. 1051 (internal quotation mark omitted). We are bound by this stricter interpretation and therefore rely solely on collateral order jurisprudence within the criminal context.

II.

Given the narrowness of the collateral order doctrine in criminal cases, the Supreme Court has only held that four types of orders are immediately appealable: orders denying a Double Jeopardy Clause challenge, orders denying a Speech or Debate Clause challenge, orders denying a motion to reduce bail, and orders allowing for the forced medication of criminal defendants. See Sell v. United States , 539 U.S. 166, 175–77, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003) (forced medication); Helstoski v. Meanor , 442 U.S. 500, 506–08, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979) (Speech or Debate Clause); Abney v. United States , 431 U.S. 651, 655–62, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (Double Jeopardy Clause); Stack v. Boyle , 342 U.S. 1, 3–7, 72 S.Ct. 1, 96 L.Ed. 3 (1951) (bail).

Although the Supreme Court has not ruled on whether the denial of a Faretta motion is subject to immediate appeal, it has held that a pretrial order disqualifying counsel in a criminal case is not immediately appealable. See Flanagan , 465 U.S. at 260, 104 S.Ct. 1051. In Flanagan , the Supreme Court distinguished such a counsel-related order from other criminal contexts in which the collateral order doctrine already applied. Unlike denial of bail, the Court explained, an order disqualifying counsel may be challenged in an appeal from a final judgment, so it is therefore not "moot upon conviction and sentence." Id . at 266, 104 S.Ct. 1051. And, unlike rights under the Double Jeopardy and Speech or Debate Clauses, which are "sui generis " rights "not to be tried," the "right not to have joint counsel disqualified is ... merely a right not to be convicted in certain circumstances." Id . at 267, 104 S.Ct. 1051.

Albeit in dictum, the Supreme Court in Flanagan also discussed the interplay between a presumption of prejudice in an appeal from a final judgment and the third prong of the collateral order doctrine—whether an order would be "effectively unreviewable on appeal from a final judgment." 465 U.S. at 265, 104 S.Ct. 1051. In Flanagan , it was an open question whether prejudice would be presumed upon post-conviction appeal from a disqualification order. Id . at 267–68, 104 S.Ct. 1051. But the Court stated that if prejudice were presumed, a disqualification order would not be "effectively unreviewable on appeal from a final judgment" and, therefore, would not be immediately appealable. Id . at 268, 104 S.Ct. 1051. Today, there is no question that if Sueiro’s Faretta motion were wrongly denied, this Court would presume prejudice on appeal from a conviction. See McCoy v. Louisiana , ––– U.S. ––––, 138 S. Ct. 1500, 1511, 200 L.Ed.2d 821 (2018) ("Violation of a defendant’s Sixth Amendment-secured autonomy ranks as error of the kind our decisions have called ‘structural’; when present, such an error is not subject to harmless-error review."). In fact, the Court in Flanagan even stated that post-conviction review of the "Sixth Amendment right to represent oneself" is "fully effective," because it carries a presumption of prejudice on appeal from a final judgment. See 465 U.S. at 267–68, 104 S.Ct. 1051 (noting that the petitioners had "correctly conceded" this point).

To avoid application of Flanagan ’s apposite dictum, Sueiro argues that a more recently decided forced medication case should control. Like the right not to be forcibly medicated, the right to represent oneself protects the autonomy and dignity of criminal defendants. See McKaskle v. Wiggins , 465 U.S. 168, 176–77, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) ("The right to appear pro se exists to affirm the dignity and autonomy of the accused."). In that regard, Sueiro believes that his Faretta right is more akin to the right not to be forcibly medicated than to other counsel-related rights, such as the right to appointed counsel. Because Flanagan was decided before Sell , the Supreme Court did not differentiate counsel-related rights from forced medication. We do so here, and we find that this comparison fails in two respects.

First, the right not to be forcibly medicated is substantively distinct from the right to self-representation. In Sell , the Supreme Court found that the forced administration of antipsychotic medications is "effectively unreviewable on appeal from a final judgment," because "[b]y the time of trial [the defendant] will have undergone forced medication—the very harm that he seeks to avoid." See 539 U.S. at 176–77, 123 S.Ct. 2174. The Court emphasized that forced medication cannot be undone, even through acquittal. Id . at 177, 123 S.Ct. 2174. That is to say, acquitted defendants will still have lost their "legal right to avoid forced medication." Id . Although forced medication has particular fair-trial implications in the criminal context, criminal defendants and non-defendants alike enjoy a broader right not to be forcibly medicated. Therefore, it makes sense that a second, unmedicated trial experience, though it may result in a fairer trial, would not cure the experience of wrongfully being medicated. By contrast, the Sixth Amendment right to self-representation arises only in the context of a criminal case. Put another...