FILED
United States Court of Appeals
Tenth Circuit
January 17, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 06-1525
v.
MITCHELL JAMES PETHICK,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COURT OF COLORADO
(D.C. NO. 06-CR-7026-CBS)
Philip W. Ogden, Colorado Springs, Colorado, for Defendant - Appellant.
Paul Farley, Assistant United States Attorney, (Troy A. Eid, United States Attorney, with
him on the brief), Denver, Colorado, for Plaintiff - Appellee.
Before TACHA, HOLLOWAY and MURPHY, Circuit Judges.
HOLLOWAY, Circuit Judge.
This appeal arises from a federal prosecution for the misdemeanor offense of
driving under the influence of alcohol. The federal district court had jurisdiction over this
case because the offense occurred on the Fort Carson Military Reservation in Colorado.
Thus, the information charged Pethick with a violation of 18 U.S.C. § 13,1 incorporating
Colorado Revised Statute § 42-4-1301(1)(a). Pethick was convicted after a jury trial and
was later sentenced to 15 days’ imprisonment and a fine of $300; the sentence also
included a one-year term of supervised release and a special assessment of $25.
This appeal presents an unusual issue of appellate jurisdiction. Initial proceedings
were handled by a magistrate judge, but a district judge began presiding over the case at
an early stage. The district judge issued several important pretrial rulings, presided over
the jury trial, and denied Defendant’s motion for a new trial. But the district judge then
became seriously ill and was unable to continue. Defendant then consented to have
judgment and sentence entered by a magistrate judge, and that followed.
Because of the extensive participation of the district judge in the case, the
Defendant’s lawyer asked for guidance from the district court as to whether this court or
the district court would have jurisdiction of the appeal. The clerk of the district court
filed a notice of appeal on behalf of Defendant which stated that appeal was taken to this
court of appeals.
This court has a “special obligation” to make its own determination of its
jurisdiction of an appeal, Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541
1
Section 13, the Assimilative Crimes Act, was enacted to fill gaps in criminal law
otherwise applicable to federal enclaves by incorporating state law. See United States v.
Adams, 140 F.3d 895, 896 (10th Cir. 1998). The Act provides “a method of punishing a
crime committed on government reservations in the way and to the extent that it would
have been punishable if committed within the surrounding jurisdiction.” Id. (quoting
United States v. Garcia, 893 F.2d 250, 253 (10th Cir. 1989)).
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(1986), and we address the issue without deference to the views of the clerk of the district
court. The parties have filed memorandum briefs on the jurisdictional issue.
The federal district courts are granted jurisdiction over appeals from a judgment of
a magistrate judge in a criminal case. 18 U.S.C. § 3402; see also Fed. R. Crim. P.
58(g)(2). This court has jurisdiction over appeals from final orders and judgments of the
district courts in this circuit. 28 U.S.C. § 1291. The peculiar situation in the instant
appeal is that the judgment from which this appeal is taken was entered by a magistrate
judge, but the appeal challenges only rulings made by the district judge in ruling on
pretrial motions and in certain trial rulings. Thus, at least as Defendant sees it, the appeal
is in substance one from the orders of the district court, even though in form it is an
appeal from a judgment of a magistrate judge.
Defendant asserts (in his opening brief on the merits, after having taken no
position on the jurisdictional issue in his memorandum brief on that issue) that this court
has jurisdiction of this appeal. He contends that this is supported by careful examination
of the language of 18 U.S.C. § 3401, regarding the jurisdiction of magistrate judges.
Under subsection 3401(b), a magistrate judge may not try a misdemeanor case unless the
defendant expressly consents to be tried before the magistrate and specifically “waives
trial, judgment, and sentencing by a district judge.” In the instant case, Pethick did not
consent to trial before a magistrate judge, and only the pre-trial and trial rulings of the
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district judge are challenged on appeal.2 The provision in section 3402 regarding appeal
to the district court is not applicable, Defendant then asserts, because it covers only “cases
of conviction by a . . . magistrate judge.”
The government contends that the controlling factor is that the judgment was
entered by a magistrate judge. Section 3402 provides that an appeal “shall lie from the
judgment of the magistrate judge to a judge of the district court . . . .” Similarly, Fed. R.
Crim. P. 58(g)(2)(B) points to the “judgment of conviction or sentence” of the magistrate
judge as being the subject of appeal to the district court.
Statutes conferring jurisdiction must be strictly construed. See United States ex
rel. Precision Co. v. Koch Industries, Inc., 971 F.2d 548, 552 (10th Cir. 1992); F & S
Constr. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). This principle is, in this case,
both the beginning and the end of the analysis. Strict construction of the statute will not
allow a creative reading that would somehow divide the judgment of the district court into
two components, a pre-sentencing “judgment,” and the final judgment. Moreover, the
“judgment” in a criminal case is defined to include specifically the sentence. Fed. R.
Crim. P. 32(k)(1).
Because we have no jurisdiction, we cannot remand to the district court but can
only dismiss this appeal. See United States v. Jones, 117 F.3d 644, 645 (2d Cir. 1997).
This does not leave Defendant with no avenue for appeal. The notice of appeal was
2
The form that was signed post-trial to consent to further proceedings before a
magistrate judge did, however, state that Defendant consented to “all proceedings” before
a magistrate judge. I R. Doc. 79.
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effective to vest jurisdiction in the district court, even though it was docketed in this
court. See United States v. Manning-Ross, 362 F.3d 874 (1st Cir. 2004) (“. . . a defendant
challenging a conviction or a sentence rendered by a Magistrate Judge must do so in the
first instance in the district court . . .”); United States v. Smith, 992 F.2d 98, 100 (7th Cir.
1993).
Accordingly, this appeal is DISMISSED WITHOUT PREJUDICE.
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