Opinion
22-2144
01-25-2023
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SIRAJ IBN WAHHAJ, Defendant-Appellant.
(D.C. No. 1:18-CR-02945-WJ-2) (D. N.M.)
Before HOLMES, Chief Judge, BACHARACH, and ROSSMAN, Circuit Judges.
ORDER
This matter is before the court on: (1) the government's Motion to Dismiss Interlocutory Appeal for Lack of Jurisdiction; (2) defendant-appellant Siraj Wahhaj's response in opposition to that motion; and (3) the government's reply in support of its motion. Upon consideration of these materials, the district court docket, and the applicable law, the court grants the government's motion and dismisses this interlocutory appeal for the reasons set forth below.
While represented by counsel appointed pursuant to the Criminal Justice Act, Mr. Wahhaj filed, among other things, (1) a pro se motion titled Motion to Dismiss Indictment with Prejudice As a Result of Violations of the First, Second, Fourth, Fifth, Sixth, and Fourteenth Amendments of the Constitution and the Religious Freedom Restoration Act ("RFRA") Perpetrated by Law Enforcement Officials [ECF No. 513]; and (2) a pro se supplement to that motion [ECF No. 514]. Because Mr. Wahhaj filed the motion pro se without leave of court in violation of the district court's local rules, the government moved to strike the motion. The district court granted the motion and struck the pro se filings. [ECF No. 524 (citing D.N.M.-LR-CR 44.2)].
Mr. Wahhaj then filed a pro se notice of his intent to appeal the district court's order. [ECF No. 534]. Pursuant to 10th Cir. R. 46.3(A), this court directed Wahhaj's CJA counsel to perfect the appeal, which he did.
The government moved to dismiss the appeal for lack of a final order and thus of jurisdiction. Mr. Wahhaj's counsel responded in opposition to the motion to dismiss. The government filed a reply in support of its motion.
As all parties acknowledge, this court's appellate jurisdiction is generally limited to review of final decisions. See 28 U.S.C. § 1291. [See Mtn. to Dismiss at 3-4; Response at 2]. In criminal cases, this "final judgment rule" "generally requires that a defendant await conviction and sentencing before raising an appeal." United States v. Perea, 977 F.3d 1297, 1299 (10th Cir. 2020) (citation and internal quotation marks omitted).
Mr. Wahhaj-as the proponent of this court's jurisdiction-has the burden to establish the court's jurisdiction over this appeal. See, e.g., United States v. Ceballos-Martinez, 387 F.3d 1140, 1143 (10th Cir. 2004). His counsel relies on the collateral order doctrine to do so. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949) (recognizing the appealability of certain non-final orders).
The collateral order doctrine does not reach the order at issue in this appeal. To establish jurisdiction under the collateral order doctrine, Mr. Wahhaj must demonstrate that the order on appeal satisfies each of three conditions: it must "[1] . . . conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment." United States v. Quaintance, 523 F.3d 1144, 1146 (10th Cir. 2008) (quoting Coopers &Lybrand v. Livesay, 437 U.S. 463, 468 (1978)); see also Flanagan v. United States, 465 U.S. 259, 265 (1984) ("Because of the compelling interest in prompt trials, the [Supreme] Court has interpreted the requirements of the collateral-order exception to the final judgment rule with the utmost strictness in criminal cases.").
The district court's order striking Mr. Wahhaj's pro se motion and its supplement is not a conclusive determination of his ability to file that motion either through compliance with L.R. 44.2, through counsel, or by electing to represent himself pro se and thereafter refiling the same motion (provided, of course, that the motion complies with the applicable local and federal rules).
Further, outside of three specified categories (motions to reduce bail, motions to dismiss based on the Double Jeopardy Clause, and motions to assert immunity under the Speech and Debate Clause), the Tenth Circuit has permitted interlocutory criminal appeals "only when the asserted right cannot be vindicated after trial." See United States v. Tucker, 745 F.3d 1054, 1064-65 (10th Cir. 2014) (discussing cases permitting interlocutory review); see also Flanagan, 465 U.S. at 265 ("The importance of the final judgment rule has led the [Supreme] Court to permit departures from the rule only when observance of it would practically defeat the right to any review at all." (citation and internal quotation marks omitted)).
Here, however, Mr. Wahhaj's appeal does not involve any one of these types of motions. Instead, Mr. Wahhaj argues that the district court's order would be effectively unreviewable on appeal because the issues he sought to raise through his motion to dismiss would be subject to a more strenuous standard of review on appeal if he is unable or fails to raise them before the district court. This argument, however, ignores the fact that any right Mr. Wahhaj might have to file a pro se motion while represented by appointed counsel may be vindicated either by filing that motion through appropriate channels as discussed above or by appealing the order striking his pro se motion on procedural grounds after the entry of final judgment, which appeal-if successful- would restore the motion to the district court's docket and require the district court to consider its merits.
For the foregoing reasons, the order Mr. Wahhaj seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, this court is without jurisdiction to hear his appeal. See Tucker, 745 F.3d at 1064-65; cf. United States v. Glover, No. 21-7764, 2022 WL 1283132, at *1 (4th Cir. April 29, 2022) (unpublished) (per curiam) (dismissing interlocutory appeal of order striking pro se filings); United States v. Fredrickson, No. 18-3555, 2018 WL 11323027, at *1 (7th Cir. Dec. 26, 2018) (unpublished) (dismissing interlocutory appeal of order striking pro se motion for release on bond).
APPEAL DISMISSED.