United States v. Culbertson, No. 09-0485-cr (2d Cir. March 10, 2010) (Miner, Cabranes, CJJ, Rakoff, DJ)
Defendant Troy Culbertson, acting pro se, moved in the circuit for poor person’s relief and for appointment of counsel to pursue an interlocutory appeal of the district court’s orders (1) denying his speedy trial motion, (2) refusing to appoint him new counsel, and (3) denying his request for a psychiatric evaluation. Noting that the appealability of these last two orders presented questions of first impression in the Second Circuit, the court found that none of the orders was “final” and dismissed the appeal.
By way of background, Culbertson was arrested at the airport, where he met up with a known drug courier. He was detained and within a month went through three appointed attorneys. After his arraignment, he filed a pro se motion to dismiss the indictment on speedy trial grounds, which the court denied. After that, his counsel moved to be relieved and the court appointed a fourth attorney. The district court rejected his effort to fire that attorney, and instead directed Culbertson to go pro se, with his current attorney as standby counsel. Culbertson then moved for dismissal of the indictment under the Speedy Trial Act, appointment of counsel and for a competency evaluation. The district court denied all three.
The court of appeals concluded that none of the district court’s orders was appealable as a final order under 28 U.S.C. § 1291, and none fit within the “collateral order doctrine,” the Supreme Court’s extremely narrow standard for permitting interlocutory appeals in criminal cases.
A Speedy Trial Act denial is not final, since fulfillment of the Act “would be rendered impossible if every pretrial order were appealable.” Moreover the Act does not encompass a “right not to be tried” that needs to be upheld prior to trial, and a violation of the Act is reviewable on appeal from the final judgment.
Likewise, an order denying appointment of counsel – while perhaps a closer call – is not subject to an interlocutory appeal. It can be reviewed on appeal from the final judgment and, again, does not implicate a right not to be tried. The court distinguished the denial of an attorney’s motion to withdraw, which it has considered on an interlocutory appeal, because the injury to an attorney forced to represent a client against his will “is irreparable” and would be “effectively unreviewable upon final judgment.”
Finally, while the court has permitted the interlocutory appeal of a pretrial order finding the defendant mentally incompetent to stand trial, here it concluded that an order denying a psychiatric examination – in essence a finding that the defendant is competent – is not immediately appealable.