FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10381
Plaintiff-Appellant, D.C. No.
v. 3:03-cr-40210-
MOHAMMAD YOUSUF CHAUDHRY, CRB-1
Defendant-Appellee.
OPINION
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
September 15, 2010—San Francisco, California
Filed January 3, 2011
Before: J. Clifford Wallace and Sidney R. Thomas,
Circuit Judges, and Richard Mills, Senior District Judge.*
Opinion by Judge Thomas
*The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
93
96 UNITED STATES v. CHAUDHRY
COUNSEL
Kirstin M. Ault (argued) and Thomas G. Moore, Assistant
U.S. Attorneys; San Francisco, California; Kirby A. Heller;
United States Department of Justice; Washington, D.C.; for
the appellant.
Gary K. Dubcoff; San Francisco, California; for the appellee.
OPINION
THOMAS, Circuit Judge:
This appeal presents the question of whether we have
appellate jurisdiction to review a district court’s decision not
to impose a provisional sentence until the defendant is compe-
tent to be sentenced. We conclude that we lack appellate juris-
diction and dismiss the appeal.
I
Mohammad Yousuf Chaudhry was convicted on sixteen
counts related to tax fraud. He submitted an ex parte applica-
UNITED STATES v. CHAUDHRY 97
tion to continue sentencing so that he could undergo a psychi-
atric examination, although competency had not been an issue
to that point.
Chaudhry’s doctor reported that Chaudhry had a “mental
illness” that was “impairing his ability to understand his cur-
rent legal situation” and ultimately rendered him “unable to
have a rational understanding of the proceedings against
him.” Chaudhry then requested the district court to determine
whether he was presently suffering from a mental disease or
defect that required custody for care and treatment under 18
U.S.C. § 4244.
The government argued that the court should proceed under
18 U.S.C. § 4241 and determine whether there was a mental
disease or defect that prevented Chaudhry from understanding
the nature of the proceedings. The court agreed with the gov-
ernment that 18 U.S.C. § 4241 was the applicable statute and
proceeded accordingly.
The court then ordered a second doctor, one of two doctors
suggested by the government, to “examine [Chaudhry] and
determine his mental competency.” The second doctor con-
cluded that Chaudhry did not, at that point, understand the
nature of the criminal proceedings or have the ability to assist
counsel in his defense. Based on this report and (at the gov-
ernment’s suggestion) applying § 4241(d), the district court
found “by a preponderance of the evidence that the defendant
is presently suffering from a mental disease or defect render-
ing him mentally incompetent to the extent that he is unable
to understand the nature and the consequences of the proceed-
ings against him or to assist properly in his defense.” The
government did not object or otherwise request the opportu-
nity to present more evidence or hold a hearing.
The district court committed Chaudhry to the custody of
the Attorney General, under § 4241, “to determine whether
there is a substantial probability that in the foreseeable future
98 UNITED STATES v. CHAUDHRY
he will attain the capacity to permit the proceedings to go for-
ward.” Chaudhry was committed to the Federal Medical Cen-
ter in Butner, North Carolina, for evaluation.
Several months later, the government recanted its position
on the applicable statute. It submitted a memorandum to the
district court arguing that 18 U.S.C. § 4244 was the only sec-
tion that applies to mentally ill defendants who have been
convicted but not sentenced and that the court had, as a result,
erred in proceeding under § 4241.
The question of which section applied was critical to deter-
mining the next procedural step. If § 4241 applied, Chaudhry
would be assessed for dangerousness. If found dangerous,
Chaudhry would be civilly committed; if not, he would be
released. If, instead, the court proceeded under § 4244, the
district court would have needed to determine whether Chaud-
hry’s mental condition required him to be committed for men-
tal health treatment in lieu of imprisonment; if not, the court
would sentence him. If Chaudhry’s condition required treat-
ment, the court would commit him provisionally for the maxi-
mum sentence authorized by law (and to be resentenced to
imprisonment if he recovered). Chaudhry objected to the gov-
ernment’s argument that § 4244 applied to the proceedings.
The district court held two hearings on the question and, at
one point, recessed for two weeks in order to permit the gov-
ernment to obtain documentation showing that the Attorney
General agreed with its interpretation of the statutory scheme.
The government never submitted the requested documenta-
tion.
In a published decision on August 17, 2009, United States
v. Chaudhry, 646 F. Supp. 2d 1140 (N.D. Cal. 2009) (the
“August Order”), the district court determined that 18 U.S.C.
§ 4241 governs cases where a party questions the competency
of a convicted defendant to be sentenced. The court then
determined that 18 U.S.C. § 4244 applies in situations where
UNITED STATES v. CHAUDHRY 99
a defendant is thought to have a mental disease or defect that,
rather than rendering him incompetent to be sentenced, would
require him to be committed to a mental health facility instead
of imprisoned. The court had already determined that Chaud-
hry was incompetent to be sentenced and unlikely to be
restored to competency within a reasonable period of time
(findings that the government did not challenge). The district
court followed 18 U.S.C. § 4241(d)’s directive to evaluate the
defendant under the civil commitment statute, codified at 18
U.S.C. § 4246, and it once again ordered Chaudhry trans-
ferred to the Federal Medical Center for evaluation. The dis-
trict court committed Chaudhry for 45 days (a time period
later extended by 30 days at the request of the warden) and
ordered the facility to file a report with the court at the end
of that period “explaining whether Chaudhry ‘is presently suf-
fering from a mental disease or defect as a result of which his
release would create a substantial risk of bodily injury to
another person or serious damage to property of another.’ ”
The government immediately appealed the August Order.
On appeal, we directed the government to show cause why
the appeal should not be dismissed for lack of appellate juris-
diction, suggesting the appealed decision was not final.
During the pendency of the appeal, the district court
retained jurisdiction over the case. The court explained it
would hold further proceedings in the case even if Chaudhry
was not rendered “dangerous” by the Federal Medical Center
and, in particular, within seven-days receipt of the report from
the Federal Medical Center.
On December 2, 2009, the Federal Medical Center submit-
ted its report to the district court. The report concluded that
Chaudhry was not dangerous and did not meet the criteria for
civil commitment under 18 U.S.C. § 4246. On December 10,
2009, following briefing and a hearing, the district court
ordered that Chaudhry be released from the Federal Medical
Center (“December Order”). Because an appeal was pending,
100 UNITED STATES v. CHAUDHRY
the district court set conditions on Chaudhry’s release, appar-
ently releasing him under 18 U.S.C. § 3143 (rather than
§ 4246).
The government does not appeal the December Order.
Instead, it appeals only the August Order and argues that the
district court incorrectly concluded that 18 U.S.C. § 4241
applied, rather than 18 U.S.C. § 4244. We do not address this
question, though, because we do not have jurisdiction over the
government’s appeal.
II
[1] Generally, we have jurisdiction over the government’s
appeal in a criminal case when (1) the government has a right
to appeal under 18 U.S.C. § 3731 and (2) the decision being
appealed is a “final judgment” under 28 U.S.C. § 1291. See
United States v. Russell, 804 F.2d 571, 573 (9th Cir. 1986).1
But, despite 28 U.S.C. § 1291’s finality requirement, “Section
3731 can, and does, make it lawful for the government to take
certain appeals even though there is no final judgment.”
United States v. Woodruff, 50 F.3d 673, 675 (9th Cir. 1995);
see also United States v. Boren, 278 F.3d 911, 913 (9th Cir.
2002). Nevertheless, we conclude that we do not have juris-
1
In limited circumstances, we may also exercise jurisdiction over a
criminal appeal under the Collateral Order Doctrine. Under the Doctrine,
we may review decisions that “conclusively determine the disputed ques-
tion; . . . resolve an important issue completely separate from the merits
of the action; [and are] effectively unreviewable on appeal from a final
judgment.” Flanagan v. United States, 465 U.S. 259, 265 (1984); see also
United States v. No Runner, 590 F.3d 962, 964 (9th Cir. 2009). The par-
ties, however, did not address the Collateral Order Doctrine as a potential
basis for our jurisdiction. The argument is therefore waived, and we
decline to address it here. See United States v. Ullah, 976 F.2d 509, 514
(9th Cir. 1992); United States v. Kama, 394 F.3d 1236, 1238 (9th Cir.
2005). Similarly, because the government does not seek review under a
petition for mandamus, we need not determine whether mandamus juris-
diction is proper. See Bauman v. U.S. Dist. Ct., 557 F.2d 650 (9th Cir.
1977).
UNITED STATES v. CHAUDHRY 101
diction over the August Order under 18 U.S.C. § 3731 and
that the August Order was not final for the purposes of 28
U.S.C. § 1291. As a result, we dismiss the government’s
appeal.
Section 3731 delineates three bases on which the govern-
ment may file an appeal in a criminal case:
In a criminal case an appeal by the United States
shall lie to a court of appeals from a decision, judg-
ment, or order of a district court dismissing an
indictment or information or granting a new trial
after verdict or judgment, as to any one or more
counts, or any part thereof, except that no appeal
shall lie where the double jeopardy clause of the
United States Constitution prohibits further prosecu-
tion.
An appeal by the United States shall lie to a court of
appeals from a decision or order of a district court
suppressing or excluding evidence or requiring the
return of seized property in a criminal proceeding,
not made after the defendant has been put in jeop-
ardy and before the verdict or finding on an indict-
ment or information, if the United States attorney
certifies to the district court that the appeal is not
taken for purpose of delay and that the evidence is
a substantial proof of a fact material in the proceed-
ing.
An appeal by the United States shall lie to a court of
appeals from a decision or order, entered by a district
court of the United States, granting the release of a
person charged with or convicted of an offense, or
denying a motion for revocation of, or modification
of the conditions of, a decision or order granting
release.
102 UNITED STATES v. CHAUDHRY
The appeal in all such cases shall be taken within
thirty days after the decision, judgment or order has
been rendered and shall be diligently prosecuted.
The provisions of this section shall be liberally con-
strued to effectuate its purposes.
18 U.S.C. 3731. Paragraphs one and three are relevant to this
case.
A
[2] The first paragraph of 18 U.S.C. § 3731 permits the
government to appeal any decision terminating a prosecution,
as long as the Double Jeopardy Clause would not be impli-
cated by further prosecution. See United States v. Wilson, 420
U.S. 332, 337 (1975); accord United States v. Stanton, 501
F.3d 1093, 1098 (9th Cir. 2007). This paragraph operates to
confer jurisdiction when the district court’s order “effectively
preclude[s]” the “government’s prosecution of the defendant”
or is “tantamount to dismissal” of the government’s case. See
United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995).
Where the district court’s order effectively terminates prose-
cution, § 1291 provides us with jurisdiction to hear appeals of
those final judgments.
[3] We do not have jurisdiction in this case under this para-
graph. It is true that the imposition of a provisional sentence
is considered a final order, appealable at least by the defen-
dant. See, e.g., Corey v. United States, 375 U.S. 169 (1963);
United States v. Ewing, 494 F.3d 607, 613-15 (7th Cir. 2007);
United States v. Abou-Kassem, 78 F.3d 161, 167-68 (5th Cir.
1996); United States v. Donaghe, 924 F.2d 940, 942-43 (9th
Cir. 1991). But the question here is whether the refusal to
impose a provisional sentence is also a final order. Cf. Carroll
v. United States, 354 U.S. 394, 414 (1957) (explaining that
whether a decision is final is not contingent on whether “an
UNITED STATES v. CHAUDHRY 103
opposite decision would also have been final.”). Under the
circumstances here, we hold that it is not.
While the district court refused to impose a provisional sen-
tence under 18 U.S.C. § 4244, it did not permanently refuse
to sentence Chaudhry. Rather, it refused to sentence him for
the time being because he was incompetent to be sentenced.
The government cites no authority for its assertion that it has
been left “without any means of proceeding to sentencing
should his competency be restored”—i.e., that § 4241 does
not permit the district court to reassess Chaudhry’s compe-
tence after he has been released. Nor is there such authority.
[4] Indeed, as long as the district court and the government
choose to not dismiss the indictment against Chaudhry, the
government may continue to file requests for Chaudhry’s
competency to be reviewed. See 18 U.S.C. § 4241(a) (stating
that a motion for a competency hearing can be filed “[a]t any
time . . . prior to the sentencing of the defendant”); United
States v. Lapi, 458 F.3d 555, 561 (7th Cir. 2006) (indicating
that “the district court can reevaluate a defendant’s compe-
tency . . . under 18 U.S.C. § 4241 at any time so long as a fed-
eral indictment remains pending . . .”); United States v. Ecker,
78 F.3d 726, 729 (1st Cir. 1996) (explaining “that a prosecu-
tor bent on trying” a person found incompetent to stand trial
once can “file a motion under section 4241 for a new evalua-
tion of competency”); but see 18 U.S.C. § 4241(a) (directing
the court to order an evaluation where “the defendant may
presently be” incompetent). Chaudhry may someday be sen-
tenced under this indictment and jury verdict because the dis-
trict court’s August Order did not end the criminal case; it
only ended the criminal case for now.2 Thus, since the district
2
In its opening brief, the government asserts, “The absence of a formal
judgment does not negate the finality of the court’s order when the terms
of the order—that Chaudhry would never be sentenced, provisionally or
otherwise—preclude such a judgment.” The government makes this asser-
tion without citing to any authority in the record, and the August Order
simply does not state nor imply that Chaudhry “would never be sentenced,
provisionally or otherwise.” (emphasis added).
104 UNITED STATES v. CHAUDHRY
court can proceed to sentencing if Chaudhry regains compe-
tency, the August Order was not “tantamount to dismissal” of
the government’s case. See Cote, 51 F.3d at 181.
The government relies on United States v. Von Moos, 660
F.2d 748 (9th Cir. 1981) for the proposition that we have
jurisdiction to review a district court’s refusal to sentence a
defendant. Von Moos is distinguishable on a critical point.
There, the district court found itself permanently deprived of
the authority to sentence the defendant and closed the case. Id.
at 749. Here, the district court found itself without authority
to sentence the defendant only for the indefinite future. The
fact that the government might be foreclosed from appealing
the decision of the warden to not issue a dangerousness certif-
icate does not imply it would be foreclosed from appealing
the decision of the district court to release Chaudhry in light
of the warden’s decision.
B
[5] We are also without jurisdiction under the third para-
graph of 18 U.S.C. § 3731. That paragraph permits the gov-
ernment to appeal decisions “granting the release of a person
charged with or convicted of an offense.” Irrespective of
whether the decision is final under 28 U.S.C. § 1291, we have
explained that § 3731 itself grants this court jurisdiction over
such appeals. See Woodruff, 50 F.3d at 675 (9th Cir. 1995).
[6] We have never specifically invoked the third paragraph
of § 3731 to authorize a government appeal. Most other cir-
cuits have not formally done so either. But a few of our sister
circuits have observed that the main purpose of the third para-
graph is to authorize government appeal of adverse bail deter-
minations. See United States v. Bayko, 774 F.2d 516 (1st Cir.
1985) (apparently exercising jurisdiction over government
appeal of an adverse bail order pursuant to this paragraph).
The Second and Third Circuits have extrapolated a meaning
for more general application. The Second Circuit explained
UNITED STATES v. CHAUDHRY 105
that “the term ‘release’ refers to a temporary period when a
criminal defendant is permitted to remain free from detention
while awaiting trial, sentencing, or appeal.” United States v.
Peterson, 394 F.3d 98, 102 (2d Cir. 2005). Similarly, the
Third Circuit has observed that paragraph three operates to
vindicate the “ ‘clear public interest in permitting review of
release orders which may be insufficient to prevent a defen-
dant from fleeing or committing further crimes.’ ” United
States v. Delker, 757 F.2d 1390, 1390 (3d Cir. 1985) (quoting
S. Rep. No. 225, at 30 (1983), reprinted in 1984
U.S.C.C.A.N. 3182, 3213).
[7] Here, Chaudhry’s continued detention pursuant to the
August Order was civil, not criminal, and it did not constitute
a period of release. To be sure, in the past, we have analo-
gized commitment and detention under §§ 4241 and 4246 to
a bail determination. United States v. Godinez-Ortiz, 563 F.3d
1022, 1028 (9th Cir. 2009). But the analogy does not help the
government’s appeal where the defendant, as here, is actually
detained. Commitment and detention are similar to bail deter-
minations only to the extent that commitment and detention
“strip from a defendant the right to be at liberty prior to trial.”
Id. The language of § 3731 only permits the government to
appeal bail decisions where the defendant is actually out of
custody. See 18 U.S.C. § 3731. That is not the case here. The
August Order merely transferred Chaudhry to another facility.
Accordingly, the third paragraph of § 3731 does not provide
us with jurisdiction over the government’s appeal of the
August Order.
III
[8] The August Order was not final under 28 U.S.C.
§ 1291, and 18 U.S.C. § 3731 provides no basis for us to exer-
cise jurisdiction over the government’s appeal. Lacking appel-
late jurisdiction, we must dismiss.
DISMISSED.