Opinion
02 Cr. 333 (RPP)
December 5, 2002
OPINION AND ORDER
By motion dated November 21, 2002, the Government moves for an order 1) staying this Court's Judgment of Dismissal entered on October 31, 2002 ("Judgment of Dismissal") and 2) transferring Defendant Rogelio Figueroa-Taveras ("Defendant") from the custody of the Immigration and Naturalization Service ("INS") to federal pretrial custody during the pendency of the Government's appeal of the Judgment of Dismissal. The motion is denied.
Background
On July 17, 2002, Defendant moved to dismiss the Indictment pursuant to 8 U.S.C. § 1326(d), on the grounds that he had been denied due process in connection with a 1997 deportation order. Specifically, Defendant argued that Immigration Judge Mitchell Levinsky improperly caused Defendant to lose his right to request § 212(c) relief pursuant to 8 U.S.C. § 1182(c) and INS v. St. Cyr, 533 U.S. 289 (2001), by advising Defendant incorrectly regarding his eligibility for early release under § 212(c) if he appealed the order. The Court heard oral argument on the motion to dismiss on August 22, 2002. After receiving additional briefing from the parties, the Court granted Defendant's motion to dismiss in a Memorandum Opinion and Order that was entered on October 24, 2002. A Judgment of Dismissal was entered on October 31, 2002. The Government filed a notice of appeal on November 18, 2002 and the current motion on November 21, 2002.
Discussion
Normally, the filing of a notice of appeal divests a district court of jurisdiction over the aspects of the case at issue in the appeal. See e.g., United States v. Camacho, 302 F.3d 35, 36 (2d Cir. 2002). The Government cites as precedent for this Court's jurisdiction at this point in time to issue a stay of the judgment, United States v. Johnson, 1998 WL 841491 (S.D.N.Y. 1998), rev'd, 171 F.3d 139 (2d Cir. 1999) in which Judge Knapp issued a stay of his order dismissing the indictment after the government had filed its notice of appeal of that order. However, in that case, Judge Knapp had issued an earlier stay and the issue of his jurisdiction to order an extension of his earlier stay was not litigated on appeal nor ruled on by the Second Circuit. Judge Knapp cited no authority supporting his jurisdiction to issue the second stay order which, in the light of his earlier stay of his order of dismissal, was obviously the practical manner in which to deal with the situation. Here the posture is different. No prior stay order was issued and the Government, instead of asking for reconsideration of the Court's order and for a stay, filed a notice of appeal without obtaining a stay.
Rule 8(c) of the Federal Rules of Appellate Procedure states that "Rule 38 of the Federal Rules of Criminal Procedure governs a stay in a criminal case." Nothing in the Advisory Committee Notes cites to any alternative authority. Rule 38 is now entitled "Staying a Sentence or a Disability" and until December 1, 2002 was entitled "Stay of Execution." Nowhere in Rule 38, either prior to or post December 1, 2002 is there authority for issuing a stay of an order of dismissal or judgment of dismissal. The Government argues that the Court has authority to grant the relief required, i.e. an order staying the Judgment of Dismissal and transferring Defendant from the custody of the INS to the Bureau of Prisons ("BOP"), pursuant to 18 U.S.C. § § 3731, 3143(c) and 3142. But this authority is not persuasive as to the Court's jurisdiction to issue a stay which is requested after a notice of appeal has been filed. Section 3731 does authorize the Government to appeal the Court's ruling dismissing an Indictment and sections 3143(c) and 3142 do provide the Court with authority to set terms of conditions of release or detention pending an appeal by the Government, but none of the sections authorize the Court to stay an order dismissing the indictment after an appeal has been taken.
Defense counsel argues that it will be prejudiced since Defendant could not appeal an order staying the Judgment of Dismissal because such a stay would not be a final order under 21 U.S.C. § 1291, and points out that the Government will not be prejudiced by a denial of the motion since it has the right to seek a stay from the Court of Appeals. The Government's response of December 3, 2002 does not provide authority permitting Defendant to appeal the issues of a stay order, but instead points to the appealability of an order relating to the conditions of detention or release which the Court would determine under the second prong of the Government's proposed relief. Defendant also argues that his pursuit of § 212(c) relief from deportation will be hampered if he is transferred from INS custody to the BOP since it is INS policy to close any pending case if the immigrant is not in INS custody.
Since it is unclear that this Court has authority at this stage of the preceding to grant a stay, since the Government clearly has a right to seek a stay in the Court of Appeals and since Defendant will not be able to appeal any stay order and may well be prejudiced in his attempt to secure § 212(c) relief from the INS if the relief requested by the Government is granted, the Government's motion for a stay is denied. This Court does not have jurisdiction to order a stay in view of the pending appeal.
IT IS SO ORDERED.