February 9, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2064
UNITED STATES,
Appellee,
v.
AMBROSE L. DEVANEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge, and
Stahl, Circuit Judge.
Ambrose L. Devaney on brief pro se.
Donald K. Stern, United States Attorney, and Victor A. Wild,
Assistant United States Attorney, on brief for appellee.
Per Curiam. During the pendency of the direct appeal of
his conviction and sentence for conspiracy, bank fraud and
money laundering, Ambrose Devaney filed pro se a motion for
discovery and a motion to compel service in the district
court. Although "[a]s a general rule with only limited
exceptions, entry of a notice of appeal divests the district
court of jurisdiction to adjudicate any matters related to
the appeal," United States v. Distasio, 820 F.2d 20, 23 (1st
Cir. 1987) (citing cases), the district court denied both
motions. In these circumstances, and because we find no
substantial question presented by the pro se appeal, we
consider the appeal and dismiss it on its merits. See United
States v. Buckley, 847 F.2d 991, 993 n.1 (1st Cir. 1988)
(allowing motion to consolidate a motion to vacate, set
aside, or correct sentence with pending direct appeal), cert.
denied, 488 U.S. 1015 (1989); United States v. Connell, 6
F.3d 27, 29 (1st Cir. 1993) (despite jurisdictional doubts,
appellate court entitled to affirm dismissal on the ground
that no substantial question is presented on the merits).
We have reviewed carefully the record in this case and
the briefs of the parties. We find no abuse of discretion in
the district court's denial of Devaney's discovery motion.
See Buckley, 847 F.2d at 1003 (post judgment motion for
discovery within discretion of district court).
Nor do we find any error in the court's denial of
Devaney's motion to compel the government to serve him as a
pro se litigant. Since Devaney was represented by counsel
before the district court, his motion to compel service was
an implicit request to proceed via "hybrid" representation.
McKaskle v. Wiggins, 465 U.S. 168, 183 (1984). Such a
request lies in the discretion of the district court, United
States v. Betancourt-Arretuche, 933 F.2d 89, 94 (1st Cir.),
cert. denied, 502 U.S. 959 (1991), and we find no abuse of
discretion in this case.
The denial of Devaney's pro se motions is affirmed.
Devaney's motion filed in this court to compel service is
denied. Devaney's motion to file a supplemental statement of
issues is denied.
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