United States v. Mala

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 91-2229

UNITED STATES OF AMERICA,

Appellee,

v.

KELLY MALA, a/k/a KELLEY MALA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., U.S. District Judge]

Before

Breyer, Chief Judge,

Selya and Stahl, Circuit Judges.

Ronald Cohen, by Appointment of the Court, for appellant.

Jorge E. Vega-Pacheco, Assistant United States Attorney,

with whom Charles E. Fitzwilliam, United States Attorney, was on

brief, for the United States.

October 27, 1993

SELYA, Circuit Judge. Defendant-appellant Kelley Mala,
SELYA, Circuit Judge.

a resident of the U.S. Virgin Islands, appeals his conviction on

various drug-related charges. We affirm, without prejudice,

however, to Mala's right to explore certain contentions in a more

appropriate forum.

I.

Background

On January 4, 1989, a federal grand jury in Puerto Rico

indicted Mala. The grand jury twice revised the bill, a process

that culminated in a five-count superseding indictment against a

total of fourteen defendants. Three counts targeted appellant,

charging him with conspiracy to import cocaine into the United

States, 21 U.S.C. 963 (1988), conspiracy to possess cocaine

with intent to distribute it, 21 U.S.C. 846 (1988), and using a

telephone to facilitate importation of cocaine, 21 U.S.C.

843(b) (1988).

Most of the named defendants were promptly arrested and

tried. Some were convicted,1 some were not. Withal, the

government exhibited seeming indifference toward appellant. It

was not until February 22, 1991 some 25 months after the

original indictment surfaced that government agents arrested

1We affirmed the convictions. See United States v. Valencia

Lucena, 925 F.2d 506 (1st Cir. 1991). Although the facts

surrounding appellant's alleged crimes are, for the most part,
unimportant to the disposition of this appeal, the factual
predicate of his case is substantially the same as that
undergirding the other defendants' convictions. Accordingly, we
refer the reader who thirsts for additional detail to our earlier
opinion. See id. at 509-10, 512-13.

2

him in St. Thomas, took him to Puerto Rico, and arraigned him on

March 8, 1991.

From that point forward, matters progressed at a more

celeritous clip. On April 22, 1991, Mala filed a motion to

dismiss the indictment on speedy trial grounds, or in the

alternative, to suppress certain evidence. The district court

denied the motion on May 17. Four days later, Mala filed a

notice of appeal contesting the denial of his prayer for

suppression. Undeterred by the appeal, the district court

ordered the trial to commence on May 23, 1991, as previously

scheduled. On May 30, a jury found appellant guilty on all three

counts.

Two potentially significant events occurred between the

date of the verdict and the imposition of sentence. Some six

weeks after the trial ended, this court dismissed the

interlocutory appeal for want of jurisdiction after determining

that the order refusing to suppress evidence was not immediately

appealable. In roughly the same time frame, appellant filed a

pro se motion alleging, among other things, that he had been

victimized by ineffective counsel. The district judge denied

this initiative on procedural grounds, ruling that such a motion

could not be brought in advance of sentencing.

On November 8, 1991, the court sentenced appellant to a

lengthy prison term and imposed other penalties. This appeal

followed. In it, appellant is represented by successor counsel.

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II.

Analysis

A.

The Trial Court's Jurisdiction

Appellant seeks to persuade us that his conviction is a

nullity because the district court lacked authority over the case

at time of trial. The linchpin of this asseveration is

appellant's insistence that a case cannot be pending in two

courts at the same time; hence, the pendency of his appeal from

the refusal to suppress had the double-barrelled effect of

transferring the case to the appellate court and stripping the

trial court of jurisdiction. We are not convinced.

Ordinarily, docketing a notice of appeal ousts a

district court of jurisdiction over the underlying case. See,

e.g., Coastal Corp. v. Texas Eastern Corp., 869 F.2d 817, 819

(5th Cir. 1989). There is, however, an important difference

between interlocutory appeals not specifically authorized by

statute and other, less problematic appeals. While an appeal

from either a final order or an interlocutory order made

immediately appealable by statute divests a district court of

authority to proceed with respect to any matter touching upon, or

involved in, the appeal, see 9 James W. Moore et al., Moore's

Federal Practice 203.11, at 3-45 (2d ed. 1993), an

interlocutory appeal that is brought without any colorable

jurisdictional basis does not deprive the district court of

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jurisdiction over the underlying case. See United States v.

Ferris, 751 F.2d 436, 440 (1st Cir. 1984); Hodgson v. Mahoney,

460 F.2d 326, 328 (1st Cir. 1972); see also 9 Moore's Federal

Practice, supra, 203.11, at 3-52. Thus, when a litigant

purposes to appeal a plainly unappealable order, the trial court

may treat the appeal for what it is a sham and continue to

exercise jurisdiction over the case. Were the rule otherwise, a

litigant bent on vexation could temporarily divest a trial court

of jurisdiction at whim.

This case aptly illustrates the point. Two days before

his trial was scheduled to start, appellant "appealed" an

interlocutory order that had been entered a few days earlier. He

did not identify then, nor has he identified now, any

jurisdictional hook on which his appeal arguably might hang. A

transparently invalid appeal constitutes no appeal at all.

Because Mala's appeal was of this sorry stripe, the district

court retained the authority to try the case.

B.

The Right to a Speedy Trial

Appellant contends that the charges against him should

have been dismissed because of unpardonable delays in the

proceedings. This contention must rise or fall on appellant's

claim that too long a period of time intervened between his

indictment and his arrest.2 This claim, in turn, implicates the

2Appellant also asserts that the 75-day delay between March
8 and May 23 violated the statutory requirement that trial
commence within 70 days following arraignment. See 18 U.S.C.

5

Sixth Amendment, for the Speedy Trial Act, 18 U.S.C. 3161-3174

(1988), is not applicable to periods of delay antedating a

defendant's arrest. See United States v. Zandi, 769 F.2d 229,

233 (4th Cir. 1985); United States v. Haiges, 688 F.2d 1273, 1274

(9th Cir. 1982).

The Sixth Amendment provides in pertinent part that "in

all criminal prosecutions, the accused shall enjoy the right to a

speedy . . . trial." U.S. Const., Amend. VI. This right

attaches upon indictment or arrest, whichever first occurs. See

United States v. MacDonald, 456 U.S. 1, 6-7 (1981); Dillingham v.

United States, 423 U.S. 64, 64-65 (1975) (per curiam). The

constitutional assurance serves many laudable purposes, chief of

which is to limit the possibility that memories will fade,

witnesses disappear, and needless delay impair an accused's

ability to defend himself. See United States v. Ewell, 383 U.S.

116, 120 (1966).

In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme

Court established a four-part balancing test to be used in

determining whether a defendant's constitutional right to a

speedy trial has been abridged. These four factors are (1) the

length of the delay; (2) the reasons for the delay; (3) the

3161(c)(1) (1988). This assertion need not detain us. Delay
"resulting from any pretrial motion, from the filing of the
motion through the conclusion of the hearing on, or other prompt
disposition of, such motion," is excludable for purposes of
determining compliance vel non with the statutory mandate. Id.

at 3161(h)(1)(F). Since appellant filed several pretrial
motions, including the April 22 motion (which was not disposed of
until May 17, see supra Part I), the thrust of his Speedy Trial

Act claim misses the mark.

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defendant's posture vis-a-vis the delay, especially in respect to

assertions of the speedy trial right; and (4) the prejudice

stemming from the delay. Id. at 530. These factors cannot be

plugged into a formula that operates with scientific precision.

Rather, they must be considered on a case-by-case basis "together

with such other circumstances as may be relevant." Id.

Attempting to apply the Barker test in the

circumstances at bar frustrates meaningful appellate review. The

devoir of persuasion rests with the appellant to show error in

the ruling below. Although he filed a motion to dismiss the

indictment on speedy trial grounds, he did not accompany it with

affidavits or other materials of evidentiary quality. What is

more, he did not request an evidentiary hearing. In the end, the

district court denied the motion without holding a hearing and

without making specific findings. The briefs on appeal evince

that the facts relevant to the second, third, and fourth furcula

of the Barker test are hotly disputed. We have no reliable way

of resolving these factual disputes in the rarified atmosphere of

an appellate bench. It follows inexorably that appellant cannot

carry his burden of demonstrating error in the ruling below:

without better factual insights, we can neither shrug off the

possible existence of a scenario completely supportive of the

district court's ruling nor measure the relative probabilities as

among competing scenarios. Consequently, Mala's assignment of

error cannot prevail.

To illustrate our dilemma, it might well be, as the

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government suggests, that appellant eluded arrest; or, knowing

about the indictment, failed to assert his speedy trial right for

a protracted period of time; or, having had the good fortune to

observe a dress rehearsal of the government's case, suffered no

cognizable prejudice through the delay. If an evidentiary

hearing shows any such scenario to be true and we do not

suggest that this will (or will not) prove to be the case the

facts might well defeat appellant's speedy trial claim,

notwithstanding the extremely long period of pre-arraignment

delay.3 See, e.g., Doggett v. United States, 112 S. Ct. 2686,

2691 (1992); United States v. Brock, 782 F.2d 1442, 1447 (7th

Cir. 1986). On this inscrutable record, we simply cannot tell.

Nor is it unbefitting to decide the point based on a

burden-of-proof rule where, as here, appellant can fairly be held

accountable for the opacity of the record. Under federal motion

practice, no automatic entitlement to an evidentiary hearing

exists. See Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1120 (1st

Cir. 1989) (explaining that pretrial motions "do not usually

culminate in evidentiary hearings"). Thus, a litigant who

believes that evidence should be taken in order to put a motion

3Although a 25-month period of delay is "presumptively
prejudicial," Barker, 407 U.S. at 530, it is nevertheless

essential to inquire into the remaining components of the test.
The length of the delay is merely "a triggering mechanism," id.,

and courts frequently have found presumptively prejudicial
periods of delay to be fully justified after examining the
complete set of Barker factors. See, e.g., Robinson v. Whitley,

2 F.3d 562, (5th Cir. 1993) [1993 U.S. App. LEXIS 23270, at
*27]; United States v. Aquirre, 994 F.2d 1454, 1457 (9th Cir.

1993); United States v. Colombo, 852 F.2d 19, 26 (1st Cir. 1988);

Flowers v. Fair, 680 F.2d 261, 262 (1st Cir. 1982).

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into proper perspective must, at the very least, call the need

for a hearing to the court's attention and ask that a hearing be

convened. A party who fails to meet this precondition cannot

then complain that the court did not hold a hearing that it was

never asked to hold. See United States v. Tardiff, 969 F.2d

1283, 1286 (1st Cir. 1992); Teamsters, Etc., Local No. 59 v.

Superline Transp. Co., 953 F.2d 17, 20 n.4 (1st Cir. 1992).

District judges are not expected to be mind readers.

To sum up, "[d]ue process does not entitle the

defendant to an evidentiary hearing where the defendant has

failed to request one." Tardiff, 969 F.2d at 1286; accord United

States v. Rigby, 896 F.2d 392, 395 (9th Cir. 1990). Because an

evidentiary hearing was neither sought nor convened in this

instance, the assignment of error premised on the defendant's

constitutional right to a speedy trial succumbs for want of

satisfactory proof.4

C.

Ineffective Assistance

The Sixth Amendment also provides that persons accused

of crimes shall receive the benefit of counsel for their defense.

See U.S. Const., Amend. VI. Appellant maintains that he was

denied this safeguard because his trial counsel performed below

any acceptable standard of proficiency. While this suggestion is

4Of course, trial counsel's failure properly to pursue this
Sixth Amendment issue raises effectiveness of counsel concerns
that appellant may wish to explore in future proceedings, see

infra Part II(C); but those concerns do not, at this juncture,

constitute grounds for reversal on direct appeal.

9

not implausible on its face, we do not think it is ripe for our

consideration. We explain briefly.

We have held with a regularity bordering on the

monotonous that fact-specific claims of ineffective assistance

cannot make their debut on direct review of criminal convictions,

but, rather, must originally be presented to, and acted upon by,

the trial court.5 See, e.g., United States v. McGill, 952 F.2d

16, 19 (1st Cir. 1992); United States v. Natanel, 938 F.2d 302,

309 (1st Cir. 1991), cert. denied, 112 S. Ct. 986 (1992); United

States v. Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989); United

States v. Costa, 890 F.2d 480, 482-83 (1st Cir. 1989); United

States v. Hoyas-Medina, 878 F.2d 21, 22 (1st Cir. 1989); United

States v. Carter, 815 F.2d 827, 829 (1st Cir. 1987); United

States v. Kobrosky, 711 F.2d 449, 457 (1st Cir. 1983). The rule

has a prudential aspect. Since claims of ineffective assistance

involve a binary analysis the defendant must show, first, that

counsel's performance was constitutionally deficient and, second,

that the deficient performance prejudiced the defense, see

Strickland v. Washington, 466 U.S. 668, 687 (1984) such claims

typically require the resolution of factual issues that cannot

efficaciously be addressed in the first instance by an appellate

tribunal. See Costa, 890 F.2d at 483; Hoyas-Medina, 878 F.2d at

5Mala did file a motion in the district court seeking to
raise the question of ineffective assistance. See supra p. 3.

Nonetheless, the district court dismissed the motion on
procedural grounds without reaching the question of trial
counsel's effectiveness, and appellant has not assigned error to
that ruling. For our purposes, then, the motion is a nullity.

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22. In addition, the trial judge, by reason of his familiarity

with the case, is usually in the best position to assess both the

quality of the legal representation afforded to the defendant in

the district court and the impact of any shortfall in that

representation. Under ideal circumstances, the court of appeals

should have the benefit of this evaluation; elsewise, the court,

in effect, may be playing blindman's buff.

To be sure, we have occasionally undertaken review of

ineffective assistance claims on direct appeal, even without the

advantage of the district court's views. See, e.g., Natanel, 938

F.2d at 309. But we travel this route only when the critical

facts are not in dispute and the record is sufficiently developed

to allow reasoned consideration of the claim. See id.

Although appellant invokes the exception on the theory

that any lawyer worth his salt would have requested an

evidentiary hearing, we think this case falls well within the

compass of the usual rule. Even if we assume arguendo that trial

counsel's performance was constitutionally deficient, appellant's

thesis runs afoul of the second prong of the Strickland test.

Under that prong, a criminal defendant must "show that there is a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland, 466 U.S. at 694. On the sparse record presently

compiled, we cannot say whether, had the speedy trial claim been

litigated fully, it likely would (or would not) have led to a

dismissal of the indictment. See supra Part II(B). Thus,

11

because the record does not furnish proper illumination to enable

us to assess probable outcomes, the issue of ineffective

assistance is prematurely before us.

When faced with similar situations in comparable cases,

we have routinely dismissed the relevant portion of the appeal

without prejudice to the defendant's right to litigate his

ineffective assistance claim through the medium of an application

for post-conviction relief. See, e.g., McGill, 952 F.2d at 19

n.5 (dismissing assignment of error without prejudice to the

filing of a petition in the district court under 28 U.S.C.

2255); Hunnewell, 891 F.2d at 956 n.1 (same). We follow this

sound practice today but with an added wrinkle.

Three things coalesce here: (1) appellant has shown a

fair likelihood of success on the constitutional claim,6 (2)

that claim is factually complex and legally intricate, and (3)

the facts are largely undeveloped and appellant (who is both

incarcerated and indigent) is severely hampered in his ability to

investigate them. This seems, therefore, to be the rare section

2255 case in which the appointment of counsel is

warranted. See 18 U.S.C. 3006A(a)(2)(B) (1993 Supp.)

(stipulating that, if "the interests of justice so require,

representation may be provided [under the Criminal Justice Act]

for any financially eligible person who . . . is seeking relief

6Our belief that there is some likelihood of success is not
a finding, but merely an acknowledgment that appellant has limned
a colorable claim. We take no view of the appropriate resolution
of future proceedings.

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under section . . . 2255 of title 28"); see also Battle v.

Armontrout, 902 F.2d 701, 702 (8th Cir. 1990) (holding that the

district court abused its discretion in failing to appoint

counsel for habeas corpus petitioner); Richardson v. Miller, 721

F.Supp. 1087 (W.D.Mo. 1989) (finding, on particular facts, that

the interests of justice dictated appointment of counsel in a

2255 case). We thus direct the district court, if appellant

petitions for section 2255 relief and demonstrates continued

financial eligibility, to appoint counsel for him under 18 U.S.C.

3006A(a)(2)(B).7

III.

Conclusion

We need go no further. We affirm the judgment below,

without prejudice, however, to appellant's right to raise his

claim of ineffective assistance in a proceeding brought pursuant

to 28 U.S.C. 2255. As stipulated herein, the district court

shall, subject to the strictures of the Criminal Justice Act,

appoint counsel for appellant should such a proceeding eventuate.

It is so ordered.

7Appellant's present counsel advised us at oral argument
that, if we found the ineffective assistance claim unripe,
appellant would promptly file a petition in the district court
under section 2255. Counsel also asked us to consider appointing
an attorney to represent Mala in such an endeavor and volunteered
so to serve. The selection of appointed counsel is a matter best
left to the court in which such counsel is to appear and,
accordingly, we defer to the district court in this regard.

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