United States v. Chisum , 156 F. App'x 75 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 29, 2005
FOR THE TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 05-7124
v. (D.C. No. 05-CR-43-W)
(E.D. Okla.)
JIMMY C. CHISUM,
Defendant-Appellant.
ORDER AND JUDGMENT
Before KELLY, LUCERO, and TYMKOVICH, Circuit Judges.
Jimmy C. Chisum moves for an emergency stay of his criminal trial for
income tax evasion, which was set to begin on November 28, 2005. The motion
was not filed in this court until November 28. The basis of his motion is that the
Tenth Circuit should resolve before trial his interlocutory appeal from the district
court’s orders denying his pretrial motions. Notwithstanding the untimeliness of
his motion, because we conclude that we have no jurisdiction over the underlying
appeal, we dismiss the appeal and deny the emergency motion for stay.
Mr. Chisum’s notice of appeal asserts that the district court’s denial of his
pre-trial motion to dismiss the case for failure to allege a crime, to state a charge,
or to issue a target letter violates his right to freely exercise his religion and his
right to due process, and subjects him to involuntary servitude under the
Thirteenth Amendment.
Appellate jurisdiction over the underlying appeal is a prerequisite for this
court’s consideration of a stay pending appeal. Desktop Direct, Inc. v. Digital
Equip. Corp., 993 F.2d 755, 756-57 (10th Cir. 1993). This court has an
independent duty to examine its own jurisdiction in the first instance. Maier v.
EPA, 114 F.3d 1032, 1036 (10th Cir. 1997). We have jurisdiction over “appeals
from all final decisions of the district courts of the United States.” 28 U.S.C.
§ 1291. A decision is considered final under this section when it “ends the
litigation on the merits and leaves nothing for the court to do but execute the
judgment.” Gray v. Baker, 399 F.3d 1241, 1244 (10th Cir. 2005) (quotation
marks omitted). Clearly, the district court’s orders have not ended the litigation
and are not final.
Interlocutory review of non-final decisions is warranted for a “small class
[of cases] 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.” Cohen v. Beneficial Indus. Loan Corp. ,
337 U.S. 541, 546 (1949). “To establish jurisdiction under the collateral order
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doctrine, defendants must establish that the district court’s order (1) conclusively
determined the disputed question, (2) resolved an important issue completely
separate from the merits of the case, and (3) is effectively unreviewable on appeal
from a final judgment.” Gray, 399 F.3d at 1245. It does not appear that the
district court’s order in this case concerned issues separate from the merits of the
criminal trial, thus it is not a reviewable interlocutory order. We need not reach
the other two prongs of the collateral order test. See Magic Circle Energy 1981-A
Drilling Program v. Lindsey (In re Magic Circle Energy Corp.), 889 F.2d 950,
954 (10th Cir. 1989) (noting that this court need not address all prongs of the test
if any one is not satisfied).
Because we conclude that the district court’s denial of Mr. Chisum’s
motion is not a final decision nor an appealable collateral order, we must dismiss
this appeal for lack of jurisdiction. We therefore deny the emergency motion for
stay.
The appeal is DISMISSED and the motion for emergency stay is DENIED.
Entered for the Court
PER CURIAM
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