Opinion
CRIMINAL NO. 01-10373-RWZ
March 31, 2003
MEMORANDUM
Trial in this case has been scheduled to commence on April 7, 2003. The Government has filed a Motion To Remove Case From Trial Calender and a Motion for a Stay Pending Appeal on the ground that its appeal, pursuant to 18 U.S.C. § 3731, from the Court's order dividing the indictment for trial has divested this Court of jurisdiction. Defendants John P. DeCologero and Joseph Pavone object and assert that the order is not appealable. Alternatively, defendants suggest that the court retains jurisdiction with respect to trial preparation.
Although the matter is not without doubt, the trial is stayed until mandate from the Court of Appeals issues. United States v. Brooks, 145 F.3d 446, 454 (1st Cir. 1998). However, this is a case that concerns events that occurred between 1995 and January 1997 — six to eight years ago. It is an old case; the indictment was returned on October 17, 2001, and it languished for a period of ten months while the government decided whether to seek the death penalty against defendant Paul A. DeCologero. The interests of justice demand that the trial take place at the earliest possible time.
Therefore, trial preparation will continue during the pendency of the appeal. The rule that the filing of a notice of appeal divests the district court of jurisdiction is limited to "those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). "Since the right to appeal conferred by section 3731 is pinpointed on particular evidentiary rulings, there will be many cases in which the taking of the appeal will not require the district court to relinquish jurisdiction; that court will be able to continue getting the case ready for trial." United States v. Lenco, 126 F.3d 1016, 1018 (7th Cir. 1997) (cited with approval by Brooks, 145 F.3d at 456). Preparing this case for trial presents no "risk of an intramural collision" that would preclude any exercise of jurisdiction. Brooks, 145 F.3d at 456. The outcome of the government's appeal in no way affects the process of discovery and pre-trial disclosures.
Since no conflict exists between the Court of Appeals and this Court concerning trial preparation, this Court retains jurisdiction to order the continuation of such preparation. Accordingly, the parties shall continue discovery and disclosure in preparation for trial. The trial will take place as soon as mandate issues.