United States v. Moussaoui , 43 F. App'x 612 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-6
ZACARIAS MOUSSAOUI, a/k/a Shaqil,
a/k/a Abu Khalid al Sahrawi,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-7
ZACARIAS MOUSSAOUI, a/k/a Shaqil,
a/k/a Abu Khalid al Sahrawi,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-8
ZACARIAS MOUSSAOUI, a/k/a Shaqil,
a/k/a Abu Khalid al Sahrawi,
Defendant-Appellant.

2 UNITED STATES v. MOUSSAOUI
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-17
ZACARIAS MOUSSAOUI, a/k/a Shaqil,
a/k/a Abu Khalid al Sahrawi,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-01-455)
Submitted: August 2, 2002
Decided: August 16, 2002
Before WILKINS, WILLIAMS, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Edward B. MacMahon, Jr., Middleburg, Virginia; Alan H. Yama-
moto, Alexandria, Virginia; Frank W. Dunham, Jr., Federal Public
Defender, Frances H. Pratt, Office of the Federal Public Defender,
Alexandria, Virginia, Gerald T. Zerkin, Office of the Federal Public
Defender, Richmond, Virginia, for Appellant. Paul J. McNulty,
United States Attorney, Alessandra DeBlasio, Assistant United States
Attorney, Robert A. Spencer, Office of the United States Attorney,
Alexandria, Virginia, David J. Novak, Office of the United States
Attorney, Richmond, Virginia, for Appellee.
UNITED STATES v. MOUSSAOUI 3
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Zacarias Moussaoui appeals several pretrial orders entered by the
district court in connection with the criminal proceedings against him.
We conclude that we lack jurisdiction over these consolidated appeals
and accordingly dismiss them.
I.
Moussaoui is charged with six counts of conspiracy based upon his
alleged participation in the September 11, 2001 terrorist attacks on the
United States. After Moussaoui was indicted, the district court
appointed counsel. Moussaoui subsequently informed the court that
he wished to proceed pro se, and the district court granted this motion
on June 13, 2002.
On May 3, Moussaoui filed three pro se notices of appeal challeng-
ing orders of the district court appointing counsel (Appeal No. 02-06),
deferring action on Moussaoui’s motion to proceed pro se (Appeal
No. 02-07), and sealing certain documents submitted to the court by
Moussaoui (Appeal No. 02-08). On July 5, Moussaoui filed another
pro se notice of appeal (Appeal No. 02-17), challenging rulings of the
district court denying his request for a change of venue, refusing to
exclude standby counsel from depositions and pretrial hearings,
requiring pretrial motions to be filed by July 8, 2002, and refusing to
allow Charles Freeman to participate in pretrial proceedings. We con-
solidated all four appeals, appointed appellate counsel for Moussaoui,
and directed the parties to submit briefs regarding the question of our
jurisdiction over the appeals.
II.
Our jurisdiction is generally limited to "final decisions" of the dis-
trict court. 28 U.S.C.A. § 1291 (West 1993); United States v. Law-
4 UNITED STATES v. MOUSSAOUI
rence, 201 F.3d 536, 537 (4th Cir. 2000) ("The basic rule of 28
U.S.C. § 1291 is that finality of a judgment is a predicate for federal
appellate jurisdiction."). In the context of a criminal prosecution, a
final decision is not reached until sentence is imposed. See Parr v.
United States, 351 U.S. 513, 518 (1956).
The limitation imposed by § 1291 notwithstanding, we do possess
jurisdiction over interlocutory orders that fall within the ambit of the
collateral order rule of Cohen v. Beneficial Industrial Loan Corp., 337
U.S. 541, 546 (1949). Under Cohen, an interlocutory order is appeal-
able if it "relate[s] to matters outside the stream of the main action
and would not be subject to effective review as part of the final judg-
ment in the action." Parr, 351 U.S. at 519. In criminal cases, an inter-
locutory order is appealable only if it is "(1) the trial court’s complete,
formal, final rejection of the claim; (2) collateral to, and separable
from, the issue of guilt or innocence; and (3) an adjudication of an
important right that would be lost irreparably if review awaited final
judgment." United States v. Blackwell, 900 F.2d 742, 746-47 (4th Cir.
1990); see, e.g., Abney v. United States, 431 U.S. 651, 662 (1977)
(holding that denial of motion to dismiss indictment on double jeop-
ardy grounds is appealable under Cohen). These requirements must be
applied "with the utmost strictness." Lawrence, 201 F.3d at 537(internal quotation marks omitted); see DiBella v. United States, 369
U.S. 121, 126 (1962) ("[T]he delays and disruptions attendant upon
intermediate appeal are especially inimical to the effective and fair
administration of the criminal law.").
We conclude that none of the orders challenged by Moussaoui are
final decisions under Cohen. Challenges related to the appointment of
counsel and the right to self-representation may be reconsidered by
the district court at any time and are reviewable on appeal following
a conviction, and thus fail the first and third prongs of the Cohen anal-
ysis. See United States v. Celani, 748 F.2d 363, 365 (7th Cir. 1984).
An order denying a change of venue is also reviewable on direct
appeal. See Blackwell, 900 F.2d at 747. The order denying Mous-
saoui’s motion to unseal certain documents fails all three prongs of
the Cohen analysis: it may be reconsidered by the district court at any
time; it is intertwined with the merits of the prosecution; and it is sub-
ject to review on appeal. See United States v. Hickey, 185 F.3d 1064,
1067 (9th Cir. 1999). Finally, the order setting a final date for pretrial
UNITED STATES v. MOUSSAOUI 5
motions fails the second and third prongs of the Cohen analysis
because (1) a party must show prejudice resulting from the imposition
of such a scheduling order, cf. Anwar v. INS, 116 F.3d 140, 144 (5th
Cir. 1997) (holding that party must demonstrate prejudice to prevail
on appeal of refusal to extend scheduling order), which means that the
issue is intertwined with the merits, see Flanagan v. United States,
465 U.S. 259, 268-69 (1984); and (2) such an order can be challenged
effectively on appeal, see Anwar, 116 F.3d at 144 (considering appeal
of refusal to grant extension of time to file brief).
III.
For the reasons set forth above, we conclude, as counsel for both
parties have acknowledged, that we lack jurisdiction over all of these
appeals. Accordingly, we dismiss.
DISMISSED