United States District Court, D. Alaska
ORDER REGARDING MOTION TO STAY FURTHER PROCEEDINGS
PENDING APPEAL
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 616 is defendant John Pearl Smith,
II's Motion to Stay Further Proceedings Pending Appeal.
The government responded in opposition at Docket 621. Mr.
Smith replied at Docket 625.
On
December 10, 2019, the Court issued an order denying Mr.
Smith's Motion to Dismiss Counts 1, 3, 4, 5, 6, 9, 11,
13, and 15.[1] On December 13, 2019, Mr. Smith filed an
interlocutory appeal of the order with the Ninth
Circuit.[2] On December 17, 2019, the Ninth Circuit
issued an order setting forth the briefing schedule for the
interlocutory appeal.[3] Mr. Smith seeks to have the Court stay all
proceedings in his case until the Ninth Circuit has resolved
the interlocutory appeal.
Mr.
Smith asserts that because he has “a right not to be
tried, ” the “divestiture rule” has caused
this Court to lose jurisdiction to proceed until the appeal
is resolved.[4] The “right not to be tried”
derives from Abney v. United States, where the
defendants claimed that a retrial of their case after appeal
violated their double jeopardy rights.[5] After the trial
court denied the defendants' double-jeopardy motion to
dismiss, the defendants filed an interlocutory appeal, and
the government responded by challenging the appealability of
the trial court's order. When the case reached the
Supreme Court, the Court considered whether the trial
court's denial of the defendants' motion to dismiss
was so collateral to and independent of the case itself that
the reviewing court could consider it before the entire case
was adjudicated.[6] The Supreme Court reasoned that “the
very nature of a double jeopardy claim is such that it is
collateral to, and separable from the principal issue at the
accused's impending criminal trial, i.e., whether or not
the accused is guilty of the offense charged. [T]he defendant
makes no challenge whatsoever to the merits of the charge
against him . . . [r]ather he is contesting the very
authority of the Government to hale him into court to face
trial on the charge against him. The elements of that claim
are completely independent of his guilt or
innocence.”[7] The Court also reasoned that the
defendants' double jeopardy rights would be
“significantly undermined if appellate review of double
jeopardy claims were postponed until after conviction and
sentence” because the Double Jeopardy Clause “is
a guarantee against being twice put to trial for the same
offense.”[8]
Here,
Mr. Smith contends that the Grand Jury-which returned an
indictment charging Hobbs Act robbery-was not instructed on
the elements of a Hobbs Act robbery and instead was
instructed with “an edited definition of a Hobbs Act
extortion . . . .”[9] Mr. Smith bases his claim of a right
not to be tried on his contention that “the Grand Jury
did not indict him for a death qualifying offense . . because
they were never instructed on the definition of a Hobbes
[sic] Act robbery.”[10] This is a claim regarding the
underlying proceedings preceding the return of the
indictment, not a claim that the government cannot bring Mr.
Smith to trial. For as Mr. Smith recognizes, the Grand Jury
returned an indictment that adequately sets forth Hobbs Act
robbery charges: “[T]he question is not whether the
First Superseding Indictment is flawed; the issue is whether
there was a flaw in the grand jury proceedings that led to
the First Superseding Indictment.”[11] The Court has
determined that there was no meaningful flaw in the grand
jury proceedings; even if there were a meaningful flaw, it
would not have risen to the level of a structural error or
one that might trigger the divestiture rule.[12]Accordingly,
the Court finds that Mr. Smith's interlocutory appeal
does not involve an Abney-like claim and thus does
not divest the Court of its jurisdiction while the
interlocutory appeal is pending before the Ninth Circuit.
In the
alternative, Mr. Smith contends that even if the divestiture
rule does not apply, “a stay in this case would be
vital to the conservation of scarce judicial
resources”[13] and that “the Court cannot
finalize the jury questionnaire, decide motions in limine,
finalize instructions and hear any additional pretrial legal
challenges” until the interlocutory appeal is
resolved.[14] The Court does not intend on commencing
the trial until the Ninth Circuit has resolved the
interlocutory appeal; but as the Ninth Circuit has noted, the
risk of irreparable harm to the defendant “is not as
vitally involved when only pre-trial hearings proceed in the
district court rather than the trial
itself.”[15] Notably, Mr. Smith's Motion to
Dismiss concerned nine counts of the 17-count First
Superseding Indictment. Thus, even if the Ninth Circuit
determines that the Motion to Dismiss should have been
granted, Mr. Smith is still facing trial on eight charges,
including two capital murder counts.[16] Although Mr. Smith
maintains that “the question of whether Smith has
actually been indicted for a capital crime remains unclear,
” he is facing two capital murder charges for which he
has been indicted-Counts 7 and 8-regardless of the outcome of
the interlocutory appeal.[17] There is nothing in the
proposed jury questionnaire that is unique to the counts
challenged in the Motion to Dismiss, the instructions likely
will not be finalized until trial is underway, and many
additional pretrial legal issues that will need to be
determined at some point can and should be addressed at this
time irrespective of the pending interlocutory appeal. The
Court expects the parties to continue diligently preparing
for trial to commence in June 2020, a trial which has already
been continued several times. Additionally, as Mr. Smith has
recently pointed out, “trial remains six months
away.”[18] It is premature to stay the pretrial
proceedings at this time.
In
light of the foregoing, IT IS ORDERED that the Motion to Stay
at Docket 616 is denied without prejudice to renew in May
2020.
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Notes:
[1] Docket 607.
[2] Docket 611.
[3] Docket 614. The government indicates
that it has filed a motion to dismiss the interlocutory
appeal for lack of jurisdiction and a motion for emergency
consideration of the motion to dismiss in the Ninth Circuit.
Docket 621 at 2.
[4] Docket 616 at 3. The
“divestiture of jurisdiction rule is not based upon
statutory provisions or the rules of civil or criminal
procedure. Instead, it is a judge made rule originally
devised in the context of civil appeals to avoid confusion or
waste of time resulting from having the same issues before
two courts at the same time.” United States v.
Claiborne, 727 F.2d 842, 850 (9th Cir. 1984) (citing
United States v. Leppo, 634 F.2d ...