United States v. Mohammad Reza Mehrmanesh, Patricia Mehrmanesh, and Abofazl Mehrmanesh

dissenting:

I respectfully dissent. I would hold that the order denying the motion to dismiss is appealable and, reaching the merits, I would reverse the order. Alternatively, I would grant a writ of mandamus compelling the trial judge to dismiss the indictments.

I

INTERLOCUTORY APPEAL

The majority correctly concludes that it should apply the three-part test set forth in Abney v. United States, 431 U.S. 651, 658-59 , 97 S.Ct. 2034, 2039-2040 , 52 L.Ed.2d 651 (1977), to determine whether an interlocutory appeal will lie. My quarrel is with the majority’s application of the test.

The first Abney criterion is that the challenged order be a “complete, formal, and, in the trial court, final rejection” of the defendants’ claim. Id. at 659 , 97 S.Ct. at 2040 . It cannot leave the matter “open, unfinished, or inconclusive.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 , 69 S.Ct. 1221, 1225 , 93 L.Ed. 1528 (1949). The Supreme Court in United States v. MacDonald, 435 U.S. 850, 858-59 , 98 S.Ct. 1547, 1551-1552 , 56 L.Ed.2d 18 (1978), held that the denial of a constitutional speedy trial claim is not such an order because

A speedy trial claim based on the statute stands on…

This appeal presents a question of interpretation of the provision of the Speedy Trial Act imposing the sanction of dismissal for violation of the Act’s time limits. 18 U.S.C. § 3163 (c). Before reaching that issue, however, we are presented with a threshold question whether the denial of a motion to dismiss for violation of the Speedy Trial Act is appealable prior to final judgment. We conclude that the order is not appealable, and accordingly dismiss the appeal. We also deny defendants’ request for mandamus relief.

FACTS:

On March 20, 1980, the defendants were arrested and charged with importing and possessing heroin. A preliminary hearing was held April 10 and probable cause was found. On April 23, the government was granted an additional 30 days to file an indictment. The extended period for filing the indictment based on the March 20 complaint expired on May 19, but the defendants were not indicted until July 9. On July 14, the defendants moved to dismiss the indictments, which they alleged violated the Speedy Trial Act time limits.

The district court denied the motions to dismiss. The court reasoned that although the delay between arrest and indictment exceeded the 30-day…

652 F.2d 766 UNITED STATES of America, Plaintiff/Appellee, v. Mohammad Reza MEHRMANESH, Patricia Mehrmanesh, and Abofazl Mehrmanesh, Defendants/Appellants. Nos. 80-1512, 80-1544 and 80-1545. United States Court of Appeals, Ninth Circuit. Submitted Sept. 18, 1980. Decided Sept. 25, 1980. Opinion Filed Feb. 9, 1981. Michael L. Piccarreta, Asst. Federal Public Defender, Bruce Feder, Phoenix, Ariz., for defendants/appellants. Michael D. Hawkins, U. S. Atty., Phoenix, Ariz., for plaintiff/appellee. Appeal from the United States District Court for the District of Arizona. Before FLETCHER, ALARCON and CANBY, Circuit Judges. CANBY, Circuit Judge. 1 This appeal presents a question of interpretation of the provision of the Speedy Trial Act imposing the sanction of dismissal for violation of the Act's time limits. 18 U.S.C. § 3163 (c). Before reaching that issue, however, we are presented with a threshold question whether the denial of a motion to dismiss for violation of the Speedy Trial Act is appealable prior to final judgment. We conclude that the order is not appealable, and accordingly dismiss the appeal. We also deny defendants' request for mandamus relief. FACTS : 2 On March 20,…