United States v. McGriff, Docket No. 06-2014-cr (2d Cir. Jan. 5, 2007) (Parker, Wesley, Hall): In a matter of first impression in this Circuit, the Court holds here that a district court’s denial of the defendant’s motion to strike the Government’s death notice for untimeliness under 18 U.S.C. § 3593(a) is not immediately appealable under the collateral order exception to the final judgment rule. The Court rejects McGriff’s effort to characterize the right conferred by § 3593(a) — requiring the Government to notify a defendant of its intent to seek the death penalty, and the aggravating factor(s) justifying such a sentence, at “a reasonable time before the trial or before acceptance by the court of a guilty plea” — as a right “not to stand trial for a capital offense except upon adequate notice.” Op. 7. Rather, the Court explained that the protection offered by § 3593(a) is akin to “the protections afforded by any number of pretrial rights that involve notification or disclosure for the purpose of allowing the defendant to prepare his case.” Op.9. And because “[n]one of these rights amounts to a right not to stand trial . . . [or] supplies a basis for interlocutory review under the collateral order doctrine,” id., the Court dismisses McGriff’s appeal of the district court’s order for lack of appellate jurisdiction.
This decision creates a split among the Circuits. The Fourth and Eleventh Circuits, apparently, consider denials of motions to strike a death notice for untimeliness as immediately appealable under the collateral order doctrine. See United States v. Ferebe, 332 F.3d 722 (4th Cir. 2003); United States v. Wilk, 452 F.3d 1208, 1220 (11th Cir. 2006).