dissenting:
Donald Ferebe, who has been indicted for two counts of capital murder, filed this interlocutory appeal to challenge, as untimely, the government’s notice, given pursuant to 18 U.S.C. § 3593(a), of its intention to seek the death penalty. Section 3593(a) requires the government to serve notice of its intention to seek the death penalty “a reasonable time before the trial.” The district court denied Ferebe’s motion to strike as untimely the government’s death penalty notice. Because trial has not yet occurred and the facts neces*741sary to review the reasonableness of the timing of the government’s notice will not be ascertainable until the trial actually occurs, I would dismiss this appeal from the district court’s order as interlocutory. See 28 U.S.C. § 1291.
The majority opinion views the statute as giving Ferebe a right not to stand trial, the violation of which must be determined before trial. Treating this right much as a double-jeopardy right, ante at 735-736, the majority concludes that a violation can be appealed before trial. To accomplish this, it reads the statute to require a death penalty notice to be given a reasonable time before the date of trial, ante at 737-738, not before the trial, as the statute provides. The majority’s approach of using the scheduled trial date rather than the trial itself as the benchmark for determining compliance with § 3593(a) rests satisfaction of this procedural guarantee on speculation that a trial will proceed as scheduled. This approach finds no analytical relevance in whether the defendant was actually prejudiced at trial or whether the period actually elapsing between the death penalty notice and trial was reasonable. In employing such an approach, the majority treats a potential violation of § 3593(a), which would be wholly vindica-ble post-trial, as one of those rare pretrial constitutional deprivations that the Supreme Court has found deserving of immediate appeal.
Because I conclude that the district court’s order denying Ferebe’s motion to strike the government’s notice of its intention to seek the death penalty is an interlocutory order that is not appealable now (before trial) as a final judgment under 28 U.S.C. § 1291,1 would dismiss this appeal.
I
On September 16, 1997, Ferebe was indicted, along with Haywood Carmichael, for, among other things, two counts of murder through the use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c), (j)(l). The indictment charged that on August 15, 1995, Ferebe shot Benjamin Harvey Page, a potential witness against Ferebe on an unrelated 1994 murder charge then pending, and Yolanda Evans, an innocent bystander caught in the crossfire. The offenses carry a possible sentence of death.
Upon receiving the recommendation of the U.S. Attorney to seek the death penalty on both counts against both defendants, the Attorney General of the United States convened a meeting of the death penalty review committee on April 2, 1998, at which counsel for both Ferebe and Carmichael presented arguments in mitigation of their clients’ respective roles in the two murders. In May 1998, the Attorney General authorized the U.S. Attorney to seek the death penalty only on the one count charging Ferebe with the murder of Page. Following that decision, the district court severed the trial of Carmichael from that of Ferebe. Carmichael’s case proceeded to trial, and he was sentenced to two concurrent terms of life imprisonment.
Ferebe, however, did not wish to proceed to trial. Rather, he filed a motion for a continuance and exclusion of the elapsed time from operation of the Speedy Trial Act, seeking an indefinite postponement of his trial until the appellate process could be completed on his conviction for the previous 1994 murder of Richard Thomas in furtherance of racketeering activity, to which Page had been a potential witness and for which Ferebe had been sentenced to life imprisonment. In his motion for an indefinite postponement in this case, Fer-ebe noted that “[tjhis capital punishment case is currently scheduled for trial the week of April 26, 1999.... [I]t is in the *742interest of justice to postpone this case so that Mr. Ferebe’s previous conviction may be appealed to the Fourth Circuit. Once the Fourth Circuit rules on Mr. Ferebe’s appeal in his previous conviction, it may well then be possible for the parties to resolve this extremely difficult and protracted case without a trial.” The district court granted the motion and postponed trial of Ferebe indefinitely, pending completion of the appellate process in Ferebe’s prior murder conviction.
In September 1999, this court affirmed Ferebe’s conviction and sentence on the prior charge, and in January 2000, the Supreme Court denied Ferebe’s petition for a writ of certiorari. Turning his attention thereafter to this case, Ferebe was, at his request, returned in June 2000 to the District of Maryland from Terre Haute, Indiana, where he was serving his sentence on the prior conviction, to discuss with his counsel the possibility of resolving this case through a plea agreement. At that time, the government offered Ferebe the possibility of pleading guilty to the murders of both Page and Evans and agreeing to two concurrent life sentences to avoid the death penalty. But in October 2000, Ferebe declined the offer and insisted on proceeding to trial. In response, the district court conducted a hearing in December 2000, during which it received Fer-ebe’s formal rejection of the government’s offer and thereafter the government’s formal withdrawal of the offer. A schedule for trial preparation and motions was then fixed, and a capital trial was scheduled to commence on September 10, 2001, with the explicit understanding by the parties and the court that the death penalty would be sought.
In May 2001, the U.S. Attorney asked the Attorney General in the new administration to reconsider the decision not to permit him to seek the death penalty with respect to the count charging Ferebe with the murder of Evans. A month later and before the Attorney General acted, counsel for Ferebe announced a “breakthrough” and advised the government that Ferebe was now ready to plead guilty to both murders in exchange for concurrent life sentences, and on June 20, a formal plea agreement was signed to that effect by both Ferebe and the U.S. Attorney, subject to the approval of the Attorney General. The district judge was advised of the development, and, because the plea agreement required the approval of the Attorney General, both the court and counsel ceased their preparations for the trial to await word from the Attorney General.
In early July 2001, the Attorney General granted the U.S. Attorney’s earlier request to seek the death penalty on the Evans murder charge, and on July 26, the Attorney General advised the U.S. Attorney that the proposed plea agreement was not acceptable and that the prosecution of the case as a death penalty case should proceed. In a meeting with the court and all parties on July 31, defense counsel indicated Ferebe’s desire to plead guilty even in the absence of agreement, explaining that such a plea would subject Ferebe only to life imprisonment because the government had not yet filed its notice of intention to seek the death penalty. The next day, on August 1, 2001, the government filed a formal notice, pursuant to 18 U.S.C. § 3593(a), of its intention to seek the death penalty for the murders of both Page and Evans.
Arguing that the death penalty notice was untimely, both because it was so late after the indictment was filed and so short before the September 10 scheduled trial date, which had not yet been postponed, Ferebe filed a motion to strike the notice. The district court conducted a hearing on the motion on September 7, 2001, during *743the period originally set aside for a pretrial conference and, on September 12, denied Ferebe’s motion to strike the death penalty notice. At the same time, the court postponed the trial date to a new date on which the parties could agree.
In denying Ferebe’s motion to strike, the district court concluded that Ferebe had actual, albeit not formal, notice of the death penalty for the first count and that the preparation for the second death penalty count was not substantially different than that for the first count on which Ferebe had actual notice. Recognizing that the statutory standard for timeliness was that the notice be served a “reasonable time before the trial” or before the court’s acceptance of a guilty plea, the court concluded that the most important factor in determining “reasonableness” was to examine any “prejudice to Mr. Fer-ebe” that the timing of the notice caused. With respect to the Page murder charge, the court concluded that there had been no prejudice:
This case was scheduled on December 15, 2000 as a death penalty case.- Defense counsel has had ample time and financial resources to prepare for a death penalty ease involving the murder of Benjamin Page. They have received discovery, including a transcript of the Carmichael trial, and they have filed motions appropriate in scope and dignity of preparation to a death penalty case.
With respect to the Evans murder charge, the court concluded that “the evidence for the Page murder is basically the same for the Yolanda Evans murder, except for certain forensic evidence learning how she was killed as she was sitting on the stoop that afternoon.” Accordingly, the court concluded that there was also no actual prejudice with respect to Evans, even though the death penalty notice gave the defense its first formal notice of the government’s intent to seek the death penalty on the Evans murder charge. While the court acknowledged that there was a potential for prejudice with respect to the Evans murder charge — because defense counsel did not have as much preparation time for that charge' — -the court concluded that “any prejudice accruing to the defendant will be cured by the time that must pass between the original trial date of September 10, 2001 and the new trial date that I must schedule at the end of this hearing.” The court explained that counsel for both sides, as well as the court, “stop[ped] work in the expectation that Washington would approve the plea bargain. Washington’s turndown in late July was not expected, but it was also not unforeseeable.” The court noted that by the time thé plea agreement was turned down, “the September 10 trial date was irretrievably lost” by the actions of both parties and the court. The court explained that it had scheduled other matters for September 10 and that neither counsel could have been ready by September 10 in view of the suspension of activities pending approval by the Attorney General. The court explained further:
But the most crucial aspect as of the late July time period was that we had no jury questionnaire appropriate to a death penalty case. The timetable for drafting, investigating, and approving such a questionnaire from which to pick a qualified death penalty jury, that timetable had slipped because of the decision by court and counsel to stop work, to stay our oars and see what would happen in Washington.
I have been advised by the jury section that it takes at least eight weeks to go through the process of mailing the death penalty questionnaire, retrieving the responses, reviewing the responses with court and counsel, and bringing into court the qualified jury.
*744This case must, accordingly, be rescheduled.
Pursuant to the court’s invitation to have parties agree on a trial date, Ferebe thereafter agreed to a trial on April 7, 2003 (which is now also lost because of this appeal), and agreed to exclusion of the elapsed time for Speedy Trial Act purposes.
From the district court’s interlocutory order of September 12, 2001, denying Fer-ebe’s motion to strike the death penalty notice as untimely under 18 U.S.C. § 3593(a), Ferebe filed this interlocutory appeal.
On appeal, Ferebe contends on the merits that the government’s formal notice to seek the death penalty, served on August 1, 2001, when trial was still formally scheduled to take place on September 10, 2001, was untimely. Ferebe argues that the government violated the requirements of a timely filing imposed by 18 U.S.C. § 3593(a) by “waiting more than three years after the death penalty was authorized, ignoring the deadline for filing motions, and waiting, without reason, until just 39 days before trial.”
The government contends on the merits that the September 10, 2001 trial date was effectively suspended in June 2001 by the court and all counsel when the parties sought the Attorney General’s approval of a proposed plea agreement. The government also asserts that Ferebe had actual notice of the death penalty and of the aggravating factors to support it since November 1998 when Carmichael, Ferebe’s co-defendant, was convicted, and that even before the defacto suspension of the calendar in June 2001, Ferebe had filed all of his motions and had conducted his discovery.
II
The government first contends, however, that we do not have jurisdiction to hear this appeal because the district court’s order of September 12, 2001, denying Fer-ebe’s motion to strike the death penalty notice, was not a final order, as required by 28 U.S.C. § 1291. Ferebe responds to this contention with the argument that his appeal is justified by the collateral order doctrine, articulated in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). I agree with the government that the district court’s order is not appealable at this time.
Section 1291 of Title 28 confers on the Courts of Appeals “jurisdiction of appeals from all final decisions ... except where a direct review may be had in the Supreme Court.” 28 U.S.C. § 1291. Because jurisdiction is a creature of statute and § 1291 is the purported source of jurisdiction for this appeal, our authority to hear Ferebe’s appeal depends on whether the “finality” predicate of § 1291 is satisfied. As the Supreme Court has stated, “[t]he effect of the statute is to disallow appeal from any decision which is tentative, informal or incomplete.” Cohen, 337 U.S. at 546, 69 S.Ct. 1221. But in construing the finality requirement of § 1291, the Court in Cohen articulated a “collateral order doctrine” to permit review of certain orders not terminating the action but otherwise “final” within the meaning of the statute. Id. at 545-47, 69 S.Ct. 1221. The Court recognized such orders as “final decisions” when they are “separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Id. at 546, 69 S.Ct. 1221.
The collateral order doctrine may be applied only if three requirements are sat*745isfied. First, the district court’s order must have conclusively determined the disputed question. Cohen, 337 U.S. at 546, 69 S.Ct. 1221; Abney v. United States, 431 U.S. 651, 658, 97, S.Ct. 2034, 52 L.Ed.2d 651 (1977). Second, the order must have resolved an important issue completely separate from the merits. Cohen, 337 U.S. at 546, 69 S.Ct. 1221; Abney, 431 U.S. at 658, 97 S.Ct. 2034. And, third, the order must be effectively unreviewable on appeal from final judgment. Cohen, 337 U.S. at 546, 69 S.Ct. 1221; Abney, 431 U.S. at 658, 97 S.Ct. 2034.
Because of Congress’ expressed disfavor of piecemeal litigation, the doctrine has been strictly applied, particularly in criminal litigation where delays are directly contrary to the social interest in speedy resolution of criminal matters. See United States v. MacDonald, 435 U.S. 850, 853-54, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978) (“The rule of finality has particular force in criminal prosecutions because ‘encouragement of delay is fatal to the vindication of the criminal law’ ”) (quoting Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 84 L.Ed. 783 (1940)); see also United States v. Lawrence, 201 F.3d 536, 537 (4th Cir.2000) (noting the infrequent use of the doctrine to hear interlocutory appeals in criminal cases). Indeed, the Supreme Court has only employed the collateral order doctrine in three criminal matters. See Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979) (permitting immediate appeal of immunity afforded by the Speech and Debate Clause); Abney, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (permitting immediate appeal of denial of double jeopardy claim); Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951) (permitting immediate appeal of denial of motion to reduce bail). The Supreme Court has “repeatedly stressed that the ‘narrow1 exception should stay that way and never be allowed to swallow the general rule that a. party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (internal citations omitted). The Court has further instructed that “the issue of appealability under § 1291 is to be determined for the entire category to which a claim belongs, without regard to the chance that the litigation at hand might be speeded, or a particular injustice averted by a prompt appellate court decision.” Id. (internal quotation marks and citations omitted). While recognizing this restrictive approach, we have nonetheless applied the collateral order doctrine in a criminal case to allow the immediate appeal of the denial of the right to be tried as a juvenile. See United States v. Smith, 851 F.2d 706 (4th Cir.1988).
Ill
In order to apply these well-established principles of the collateral order doctrine to this case, it is necessary to understand the statutory basis for the order from which appeal was taken.
The order denying Ferebe’s motion to strike was based on 18 U.S.C. § 3593(a), which provides:
If, in a case involving an offense described in section 3591, the attorney for the government believes that the circumstances of the offense are such that a sentence of death is justified under this chapter, the attorney shall, a reasonable time before the trial or before acceptance by the court of a plea of guilty, sign and file with the court, and serve on the defendant, a notice—
*746(1) stating that the government believes that the circumstances of the offense are such that, if the defendant is convicted, a sentence of death is justified under this chapter and that the government will seek the sentence of death; and
(2) setting forth the aggravating factor or factors that the government, if the defendant is convicted, proposes to prove as justifying a sentence of death.
* * *
The court may permit the attorney for the government to amend the notice upon a showing of good cause.
18 U.S.C. § 3593(a) (emphasis added). By requiring the government to serve a death penalty notice “a reasonable time before the trial,” Congress does not mandate a particular deadline for providing the notice. Compare 18 U.S.C. § 3593(a) with 18 U.S.C. § 3432 (requiring that indictments and lists of jurors and witnesses in a capital case be disclosed “at least three entire days before commencement of trial ”) (emphasis added); see also, e.g., Fed. R.Crim.P. 12.1(b) (requiring government to give defendant notice of witnesses it will use to rebut alibi-witness testimony “no later than 10 days before trial ”) (emphasis added); Fed.R.Crim.P. 12.3(a)(3) (requiring government to give defendant notice of its response to a public-authority defense “no later than 20 days before trial ”) (emphasis added). Instead, the critical determination under § 3593(a) is whether the notice was provided a reasonable time before trial. Cf. United States v. Smith Grading & Paving, Inc., 760 F.2d 527, 532 (4th Cir.1985) (requiring that Brady material be disclosed “in time for its effective use at trial,” which could even include disclosure at trial itself).
In applying the reasonableness standard to the timing of a notice requirement, we must be guided by the purpose for which notice is required and the context in which it is required to be given. The statute under review in this case — 18 U.S.C. § 3593(a) — functions to inform the defendant and the court of the fact that the government will seek the death penalty at trial and of the grounds on which it will seek that penalty. This requirement affords the defendant an opportunity to prepare his defense, targeting specifically the death penalty aspect of trial. And in guilty pleas, to which the statute also applies, the requirement assures that the defendant and the court have notice of the penalty to be sought at the sentencing phase and of aggravating factors relevant to a death sentence. In short, for the defendant this statute is a procedural guarantee that he will be given adequate time to prepare for a death penalty trial and sentencing, and its guarantee is similar in nature to many other guarantees that give the defendant an opportunity to prepare. See, e.g., 18 U.S.C. § 3432 (requiring pre-trial notice of indictments and lists of jurors and witnesses in a capital case); Fed.R.Crim.P. 12.1(b) (requiring pretrial notice by the government of witnesses to be called to rebut an alibi defense); Fed.R.Crim.P. 16(a) (requiring government pretrial disclosure of evidence); Fed.R.Crim.P. 26.1 (requiring pretrial notice of the use of foreign law); Smith Grading & Paving, Inc., 760 F.2d at 532 (requiring disclosure of Brady material “in time for its effective use at trial”).
I thus disagree with the majority’s expansive reading of § 3593(a) — which it interprets as protecting the right “not to stand trial for one’s life absent [adequate time to prepare],” ante at 729, and the right “not to be forced to endure a capital trial except upon reasonable notice,” ante *747at 729 — and its analogy to double jeopardy claims to find Ferebe’s claim immediately appealable, ante at 735-736. I do not find in the death penalty notice statute language that supports the conclusion that the defendant is given a substantive right not to stand trial for a capital offense. Because “virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a ‘right not to stand trial,’ ” Digital Equip., 511 U.S. at 873, 114 S.Ct. 1992, the Supreme Court has instructed that “ § 1291 requires courts of appeals to view claims of a ‘right not to be tried’ with skepticism, if not a jaundiced eye,’” id.; see also Midland Asphalt Corp. v. United States, 489 U.S. 794, 801, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989) (“One must be careful ... not to play word games with the concept of a ‘right not to be tried’ ”). As the Supreme Court noted in MacDonald:
Admittedly, there is value — to all but the most unusual litigant — in triumphing before trial, rather than after it, regardless of the substance of the winning claim. But this truism is not to be confused with the quite distinct proposition that certain claims (because of the substance of the rights entailed, rather than the advantage to a litigant in winning his claim sooner) should be resolved before trial.
MacDonald, 435 U.S. at 860 n. 7, 98 S.Ct. 1547. And a “right not to be tried” depends upon “an explicit statutory or constitutional guarantee that trial will not occur.” Midland Asphalt, 489 U.S. at 801, 109 S.Ct. 1494; see, e.g., id. at 802, 109 S.Ct. 1494 (noting that the Grand Jury Clause satisfies this requirement because it states that “[n]o person shall be held to answer” for a crime without a grand jury indictment); Digital Equip., 511 U.S. at 870, 114 S.Ct. 1992 (stating that the Double Jeopardy Clause “by its very terms” embodies the principle of a “right ‘not to face trial at an»»). “[T]he mere identification of some interest that would be ‘irretrievably lost’ has never sufficed to meet the third Cohen requirement” to permit appeal to avoid trial entirely. Digital Equip., 511 U.S. at 872, 114 S.Ct. 1992 (citation omitted). As the Supreme Court stated in MacDonald with respect to speedy trial claims:
There perhaps is some superficial attraction in the argument that the right to a speedy trial ... must be vindicated before trial in order to insure that no nonspeedy trial is ever held. Both doctrinally and pragmatically, however, this argument fails. Unlike the protection afforded by the Double Jeopardy Clause, the Speedy Trial Clause does not, either on its face or according to the decisions of this Court, encompass a “right not to be tried” which must be upheld prior to trial if it is to be enjoyed at all. It is the delay before trial, not the trial itself, that offends against the constitutional guarantee of a speedy trial.
435 U.S. at 860-61, 98 S.Ct. 1547.
Similarly, the protection afforded to the defendant by § 3593(a) is not a right not to be tried as a capital defendant. Instead, it is a procedural guarantee ensuring that the defendant has a sufficient time for preparation between the government’s death penalty notice and trial. Indeed, the plain language of the statute provides no assurance that a capital trial can be denied if the government fails to produce a timely notice of its intent to seek the death penalty.1
*748Recognizing the statute’s role of assuring the defendant in a capital case adequate preparation time, the guide for determining a “reasonable” time must focus on the preparation denied or adversely affected by a notice allegedly given late. And ultimately the adverse effect of preparation can only be measured by the defense that the defendant presented at trial. Thus, the reasonableness of any time before trial will depend in large part on the nature and complexity of the case and an evaluation of the preparation the defendant was able to undertake.
The analysis called for is not unlike that which has been adopted for determining whether a defendant’s speedy trial right has been violated. While there are obvious differences between a claim that the defendant was denied the right to receive a timely death penalty notice and a claim that the defendant was denied a speedy trial, prejudice caused by the delay is a factor common to both analyses. See Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (“Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect”). In Barker, the Court identified the potential “inability of a defendant adequately to prepare his case” as the most serious aspect of prejudice. Id. And subsequently emphasizing the importance of being able to evaluate prejudice, the Court in MacDonald noted that any effort to assess this prejudice before the trial would “tend[ ] to be speculative,” 435 U.S. at 858, 98 S.Ct. 1547 and that “there exists no ... divorce between the question of prejudice to the conduct of the defense (which so often is central to an assessment of a speedy trial claim) and the events at trial,” id. at 859, 98 S.Ct. 1547. Indeed, it was just this speculation and inseparability from the merits that prompted the Court in MacDonald to conclude that a “pretrial denial of a speedy trial claim can never be considered a complete, formal, and final rejection” of the speedy trial right. Id. at 859, 98 S.Ct. 1547 (emphasis added).
In addition to prejudice, the Supreme Court in Barker identified other factors for consideration in determining whether a delay of trial was unreasonable. The Court in MacDonald summarized the factors as follows:
*749In Barker ... the Court listed four factors that are to be weighed in determining whether an accused has been deprived of his Sixth Amendment right to a speedy trial. They are the length of the delay, the reason for the delay, whether the defendant has asserted his right, and prejudice to the defendant from the delay. [Barker, 407 U.S.] at 530, 92 S.Ct. 2182. The Court noted that prejudice to the defendant must be considered in the light of the interests the speedy trial right was designed to protect: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id., at 532, 92 S.Ct. 2182 (footnote omitted).
435 U.S. at 858, 98 S.Ct. 1547.
Because the speedy trial analysis focuses on delay and on the prejudice that the delay will cause to the ability of the defendant to present his defense, it is relevant to the death penalty notice analysis which too must evaluate the extent to which an allegedly late notice affects the defendant’s ability to present his defense.
Thus, in determining what timing is a reasonable time before trial for giving the death penalty notice under 18 U.S.C. § 3593(a), I would conclude that a court should at least consider (1) the nature of the charges made in the indictment; (2) the nature of the aggravating factors provided in the death penalty notice; (3) the period of time before trial that the notice was received by the defendant; (4) any actual notice that the defendant had received before the formal notice was filed and the extent to which the defendant was able to prepare based on that notice; and (5) the prejudice that the timing of the formal notice has on the defendant’s preparation for trial and on his presentation of the defense. Obviously, if the jury were to determine not to impose the death penalty, then any alleged violation of § 3593(a) would become moot.
The analysis proffered by the majority eclipses any consideration of what effect an allegedly late notice would have on trial preparation and thus the prejudice it causes the defendant. It focuses on the right to such notice prospectively, making the inquiry a pretrial matter that evaluates “objective reasonableness of the notice provided.” Ante at 731. From that posture, the analysis finds irrelevant any determination of whether the actual historical facts indeed frustrated the purpose of § 3593(a) to afford an adequate preparation time, focusing instead in the abstract — and necessarily therefore upon speculation — about whether the defendant’s right to have § 3593(a) enforced was denied “at the point when [the defendant] proceeds toward trial.” Ante at 732. Apart from the speculation that this requires, it also yields no possibility of determining when a violation occurred because the violation as defined by the majority occurs within the hurtle forward toward trial. Such an approach encourages defendants to file, and district courts to rule on, challenges to § 3593(a) notices as soon as the notices are filed. It also freezes the inquiry into the reasonableness of timing as of the time the notice is filed and presents the district court, in effect, with only the options of striking the notice or not striking the notice. It denies the court any flexibility in managing the period of trial preparation by scheduling or postponing trial to give the defendant a reasonable time to prepare. For if the district court *750tries to take this route, its attempt will be cut off by an immediate appeal.
Moreover, the majority’s proffered analysis cannot withstand the analysis for assessing the reasonableness of pretrial delay demanded by the Supreme Court in Barker. While that analysis evaluated the speedy trial right, it still involved an inquiry into the reasonableness of pretrial delay, concluding that prejudice was the most serious factor for consideration. Yet the majority’s pretrial analysis, of necessity, cannot take prejudice into account. Accordingly, it concludes, as it must, that any prejudice is irrelevant. Ante at 732. This approach overlooks the entire purpose for which notice is required under § 3593(a).
Finally, the majority’s analogy to allegedly defective indictments, to dismiss any consideration of prejudice for allegedly late death penalty notices, overlooks § 3593(a)’s explicit standard of reasonableness. And the majority’s analysis ignores the aspect of indictments that is analogous to death penalty notices that both indictments and death penalty notices contain elements inextricably bound up with the merits of the case.2
In sum, we are presented in this appeal with a pretrial order denying a defendant’s motion to strike a death penalty notice made on the ground that it was not given a “reasonable time before the trial.” 18 U.S.C. § 3593(a). Yet, the trial that is referred to in the statute has not even as of now commenced, much less been completed. Because there has been no trial, no one can conclusively determine whether the notice was given a reasonable time before trial. Moreover, no one can state whether the defendant was adversely affected in any way by a notice which cannot even be denominated “late.”3
In this context, I now apply the three requirements for finding “finality” under the collateral order doctrine.
IV
Applying the three Cohen factors for determining whether the district court’s order denying Ferebe’s motion to strike the death penalty notice was a final judgment for purposes of 28 U.S.C. § 1291, I *751first observe that the district court’s order in this case did not conclusively determine the disputed question, namely whether the death penalty notice was filed a reasonable time before trial. Unlike the denial of a double jeopardy claim or a decision to try a juvenile as an adult where “[tjhere are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred,” Abney, 431 U.S. at 659, 97 S.Ct. 2034, the district court’s order, finding that the death penalty notice was served a reasonable time before trial, is merely speculative at this point. It leaves open the question of the potential prejudice to Ferebe of trying a death penalty case with inadequate preparation time. If Ferebe, during or after trial, renews his motion to strike, the court will be able to evaluate the merits of his motion in light of the period between the government’s death penalty notice and the trial date to determine whether the notice was filed a reasonable time before the trial. The district court’s denial of Fer-ebe’s motion on September 12, 2001, before the trial commenced, could not be conclusive as there remain further steps available to Ferebe at the trial-court level to vindicate his statutory right. Thus, a more apt analogy is to a speedy tidal claim, which is of a speculative nature before trial and which the Court in MacDonald found not to satisfy the collateral order doctrine. The Court explained:
Before trial, of course, an estimate of the degree to which delay has impaired an adequate defense tends to be speculative. The denial of a pretrial motion to dismiss an indictment on speedy trial grounds does not indicate that a like motion made after trial — when prejudice can be better gauged — would also be denied. Hence, pretrial denial of a speedy trial claim can never be considered a complete, formal, and final rejection by the trial court of the defendant’s contention; rather, the question at stake in the motion to dismiss necessarily “remains, unfinished [and] inconclusive” until the trial court has pronounced judgment.
Id. at 858-59, 98 S.Ct. 1547 (quoting Cohen, 337 U.S. at 546, 69 S.Ct. 1221). Just as the resolution of a speedy trial claim “necessitates a careful assessment of particular facts of the case,” MacDonald, 435 U.S. at 858, 98 S.Ct. 1547, consideration of whether a death penalty notice was submitted reasonably before trial requires knowledge of the length of time between the notice and trial, as well as an assessment of the particular facts of the case. We may only weigh these factors after trial has occurred. For this reason, the district court’s order is inconclusive within the meaning of Cohen.
Second, the timeliness of the death penalty notice filing is not an issue sufficiently separate from the merits to satisfy the collateral order doctrine. Again, MacDonald is instructive. In MacDonald, the Court stated that whether the defendant had been prejudiced by the length of delay before trial—the critical determination in speedy trial claims — often depends on the events at trial. 435 U.S. at 859, 98 S.Ct. 1547. The Court stated:
The essence of a defendant’s [speedy trial] claim in the usual case is that the passage of time has frustrated his ability to establish his innocence of the crime charged. Normally, it is only after trial that that claim may fairly be assessed.
Id. at 860, 98 S.Ct. 1547. The same may be said for Ferebe’s claim that the death penalty notice was not served within a reasonable time before trial. The timeliness of a death penalty notice depends on the “reasonableness” of the time it was provided before trial, measured by how the defendant’s preparation was affected, and that question, in turn, depends on the evi-*752denee for and against the defendant and the complexity of the case as may be revealed during the course of trial. Because Ferebe’s claim requires such an analysis, it is not sufficiently separate from the merits to satisfy the second requirement of the collateral order doctrine. See Flanagan v. United States, 465 U.S. 259, 268, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984) (“It is sufficient to note that the second condition [of the collateral order doctrine] — that the order be truly collateral — is not satisfied if petitioners’ asserted right is one requiring prejudice to the defense for its violation”).
Finally, and perhaps most important to the analysis, an untimely death penalty notice remains effectively reviewable upon final judgment. Proceeding with trial does not deny Ferebe any relief available for a violation of the statutory requirement to provide a death penalty notice within a reasonable time before trial. Rather, Fer-ebe retains the full rights to review and remedy such a violation at the end of the case, assuming he is convicted and sentenced to death or Ferebe objects to a noncapital sentence based on an inadequate preparation for a death penalty trial caused by an untimely § 3593(a) notice. The Supreme Court cases again are particularly instructive. In the three pretrial criminal matters in which the Supreme Court has identified an immediately reviewable collateral order within Cohen’s, formulation, the case involved “an asserted right[,] the legal and practical value of which would be destroyed if it were not vindicated before trial.” Mac-Donald, 435 U.S. at 860, 98 S.Ct. 1547 (citing Helstoski, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (Speech and Debate Clause claim); Abney, 431 U.S. at 651, 97 S.Ct. 2034 (double jeopardy claim); Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951) (right to reduced bail claim)); see also MacDonald, 435 U.S. at 856, 98 S.Ct. 1547 (identifying the lack of an opportunity for vindication as perhaps the most important factor influencing the conclusion in Abney); id. at 861 n. 7, 98 S.Ct. 1547 (“Certainly, the fact that this Court has held dismissal of the indictment to be the proper remedy when the Sixth Amendment right to a speedy trial has been violated ... does not mean that a defendant enjoys a ‘right not to be tried’ which must be safeguarded by interlocutory appellate review”). And we reached the same conclusion in Smith, noting that “much of the sequellae of [the defendant’s] right to be tried as a juvenile, if that claim is meritorious, would be irretrievably lost” if the denial of the right were not afforded immediate appeal. Smith, 851 F.2d at 708. Unlike rights where immediate appeal is the only way to vindicate wrongful denial of the right, a timeliness objection to a death penalty notice does not become effectively unreviewable after the trial is held. Indeed, it may often be that it is only effectively reviewable then. Assuming conviction, a district court’s order erroneously denying a motion to strike the death penalty notice is effectively reviewable because improper notice is vindicated through a new trial or through resentencing after striking the death penalty notice. See Midland Asphalt, 489 U.S. at 800, 109 S.Ct. 1494 (stating that if the alleged violation for which interlocutory appeal is sought can “provide the basis for reversal of a conviction on appeal, it is obvious that [it is] not effectively unreviewable on appeal from a final judgment” (quotation marks omitted)).4
*753In sum, the district court’s order denying Ferebe’s motion to strike the death penalty notice satisfies none of the three Cohen requirements.
V
Beyond any analysis under the collateral order doctrine, Ferebe suggests that the unique nature of capital cases in general merits our immediate review of this appeal. While I acknowledge that the gravity of a possible death sentence may elevate the intensity of trial preparation, to allow an immediate review of Ferebe’s claim based on that ground would essentially allow interlocutory appeals of every dis-positive motion in a death penalty case, wholly frustrating the policies against piecemeal appeals and favoring speedy trials in criminal cases. The proper safeguard against an untimely death penalty notice is an appeal after trial when the right can be completely reviewed and the violation adequately sanctioned.
Alternatively, Ferebe argues that if the district court’s order is not an appealable collateral order, we should grant his request for a writ of mandamus to review the district court’s interlocutory order. For the reasons given above, I also reject that request. The timeliness of a death penalty filing — which, if not mooted, can be vindicated after the trial — does not warrant issuance of such an extraordinary writ.
Accordingly, I would conclude that we do not have jurisdiction to hear this appeal at this time.
. The majority argues that my use of the word "guarantee” to describe the procedural protection afforded to a defendant by § 3593(a) contradicts my conclusion that § 3593(a) does not permit pretrial appellate review of allegedly untimely death notices. Ante at 731. *748Inherent in this assertion is the assumption that a guarantee must include immediate appellate review. Immediate interlocutory appellate review, however, is not essential to a guarantee. Indeed, almost all pretrial procedural guarantees, such as pretrial rights of disclosure of Brady material, Jenclcs material, alibi rebuttal witnesses, and the like, do not include a right to interlocutory appeals. Even the right to be tried on an indictment in compliance with the Constitution is not vindicated by interlocutory appeal. Trials, including pretrial orders, involve a multitude of important issues that are routinely and normally reviewed after judgment. Only in the rare circumstances where an issue cannot effectively be reviewed after final judgment is an exception made.
The majority also argues that my analysis requires the "error” "that defendants who never receive notice that they are to be tried for their life must endure trial, conviction, death sentence, and death row imprisonment before they may appeal the denial of their objection to receiving no notice.” Ante at 733-734. But this assertion is true only if one accepts the majority's characterization of the statutory notice right as a right not to stand trial, a characterization drawn in the face of weighty Supreme Court authority counseling courts to "view claims of a 'right not to be tried' with ... a jaundiced eye.” See Digital Equip., 511 U.S. at 873, 114 S.Ct. 1992. Although allegedly no notice is easier to identify than notice allegedly provided an unreasonable time before trial, that distinction does not transform a violation of § 3593(a) — whether before or after trial begins- — -into a right to entirely avoid trial. As I have noted in this opinion, a violation of § 3593(a) can be remedied by an array of responses.
. If a death penalty notice under § 3593(a) contains " 'charging' elements [that] only pertain to sentencing,” ante at 736 n. 5, one must wonder how the majority reconciles its analysis to the date of trial, rather than to the date of sentencing.
. Responding to an analysis of prejudice as part of the reasonableness inquiry, the majority is simply incorrect in stating that incorporation of prejudice into the analysis of whether notice was provided a "reasonable time before the trial,” 18 U.S.C. § 3593(a), "necessarily leads to the untenable conclusion that the statute would be satisfied if notice were given after trial commenced or, for that matter, never given.” Ante at 732. If notice is given after trial has commenced, the objection would be that notice was given after trial commenced, not that notice was given an "[unjreasonable time before trial.” Likewise, if notice is never given, the objection would be that notice was never given. Here, however, notice was given, and notice was given before trial, and the only challenge is to whether the notice was given a reasonable time before trial.
The majority also states that a prejudice-based analysis "necessitates [of district courts] a posf-trial adjudication” of motions to strike death penalty notices, suggesting that a district court, under my analysis, would not be in a position to rule on a pretrial motion to strike. Ante at 730 n. 4. But this general criticism is applicable to almost all pretrial and trial motions that district courts have authority to consider and that appellate courts review under a prejudice standard. The majority’s criticism also overlooks the ordinary course of litigation in which the defendant can appeal the district court's unfavorable rulings when they merge into the final judgment, not in a piecemeal fashion.
. The Supreme Court in MacDonald also recognized the limitless character of appeals on speedy trial grounds, an additional argument against immediate appealability applicable to Ferebe’s claim as well. The Court stated:
Unlike a double jeopardy claim, which requires at least a colorable showing that the *753defendant once before has been in jeopardy of federal conviction on the same or a related offense, in every case there will be some period between arrest or indictment and trial during which time "every defendant will either be incarcerated ... or on bail subject to substantial restrictions on liberty.” Thus, any defendant can make a pretrial motion for dismissal on speedy trial grounds and, if § 1291 is not honored, could immediately appeal its denial.
435 U.S. at 862-63, 98 S.Ct. 1547. Likewise, in every case in which the government files a death penalty notice, the defendant would experience a period of time between receipt of the notice and the time of trial and, "if § 1291 is not honored, could immediately appeal its denial.” See id. at 863, 98 S.Ct. 1547. "[T|here is nothing about the circumstances that will support a [late death penalty notice] claim which inherently limits the availability of the claim.” Id. at 862, 98 S.Ct. 1547.