United States v. Devaney ( 1995 )

USCA1 Opinion

          February 9, 1995
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT



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        No. 94-2064 

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                 AMBROSE L. DEVANEY,

                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
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                                        Before

                                 Selya, Circuit Judge,
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                          Bownes, Senior Circuit Judge, and
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                                Stahl, Circuit Judge.
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            Ambrose L. Devaney on brief pro se.
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            Donald  K. Stern,  United  States Attorney,  and  Victor  A. Wild,
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        Assistant United States Attorney, on brief for appellee.


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                 Per Curiam.  During the pendency of the direct appeal of
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            his conviction  and sentence  for conspiracy, bank  fraud and

            money laundering, Ambrose  Devaney filed pro se  a motion for
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            discovery and  a motion  to  compel service  in the  district

            court.   Although  "[a]s  a general  rule  with only  limited

            exceptions, entry of a notice of appeal divests  the district

            court of  jurisdiction to  adjudicate any matters  related to

            the  appeal," United States v. Distasio, 820 F.2d 20, 23 (1st
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            Cir.  1987) (citing  cases), the  district court  denied both

            motions.    In these  circumstances, and  because we  find no

            substantial  question  presented by  the  pro  se appeal,  we
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            consider the appeal and dismiss it on its merits.  See United
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            States  v. Buckley,  847 F.2d  991, 993  n.1 (1st  Cir. 1988)
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            (allowing  motion  to consolidate  a  motion  to vacate,  set

            aside, or correct sentence with pending direct appeal), cert.
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            denied, 488  U.S. 1015  (1989); United  States v. Connell,  6
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            F.3d 27,  29 (1st Cir. 1993)  (despite jurisdictional doubts,

            appellate court  entitled to  affirm dismissal on  the ground

            that no substantial question is presented on the merits).

                 We have reviewed  carefully the record in this  case and

            the briefs of the parties.  We find no abuse of discretion in

            the district court's  denial of  Devaney's discovery  motion.

            See  Buckley, 847  F.2d  at 1003  (post  judgment motion  for
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            discovery within discretion of district court).





















                 Nor  do we  find  any error  in  the court's  denial  of

            Devaney's motion to compel  the government to serve him  as a

            pro se  litigant.  Since  Devaney was represented  by counsel
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            before the  district court, his motion to  compel service was

            an implicit request to  proceed via "hybrid"  representation.

            McKaskle  v. Wiggins,  465  U.S. 168,  183  (1984).   Such  a
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            request lies in  the discretion of the district court, United
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            States v.  Betancourt-Arretuche, 933 F.2d 89,  94 (1st Cir.),
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            cert.  denied, 502 U.S.  959 (1991), and we  find no abuse of
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            discretion in this case.

                 The  denial of  Devaney's  pro se  motions is  affirmed.
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            Devaney's motion  filed in  this court  to compel  service is

            denied.  Devaney's motion to file a supplemental statement of
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            issues is denied.
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