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.
3
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
4
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.
6
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
7
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).
8
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.
10
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.
12
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.
13