United States District Court, S.D. California
WILLIAM Q. HAYES United States District Judge
matter before the Court is the jurisdiction to proceed after
Defendant filed a Notice of Appeal.
16, 2016, a federal grand jury returned an indictment
charging Defendant Robert Eric Holcomb with tax evasion,
aiding or assisting in the preparation of false returns,
making false statements to a financial institution,
possession of an unregistered firearm, and wire fraud. (ECF
No. 1). Defendant was arrested on July 12, 2016 and arraigned
on the indictment.
January 6, 2017, this Court filed an Order (ECF No. 53)
denying the following motions filed by the Defendant: (1)
motion to dismiss the indictment (ECF No. 27); (2) motion to
dissolve the protective order (ECF No. 40); (3) motion for
reconsideration (ECF No. 41); (4) motion for an injunction to
suppress evidence (ECF No. 42); (5) motion for injunction to
quash all IRS actions (ECF No. 43); and (6) supplemental
motion to dismiss (ECF No. 44).
January 18, 2017, Defendant filed a Notice of Appeal from the
January 6, 2017 Order. (ECF No. 56). The Government filed a
motion to dismiss the appeal in the Court of Appeals on the
grounds that the January 6, 2017 Order is not a final
appealable order and does not fall within the collateral
order exception. Defendant filed a response. The motion to
dismiss the appeal remains pending in the Court of Appeals.
trial is currently scheduled in this district court to begin
on Tuesday, June 27, 2017. (ECF No. 65).
OF THE COURT
Ruby v. Secretary of U.S. Navy, 365 F.2d 385, 388-89
(9th Cir. 1966), the Court of Appeals explained:
The only thing that is accomplished by a proper notice of
appeal is to transfer jurisdiction of a case from a district
court to a court of appeals. If, by reason of defects in form
or execution, a notice of appeal does not transfer
jurisdiction to the court of appeals, then such jurisdiction
must remain in the district court; it cannot float in the
Where the deficiency in a notice of appeal, by reason of
untimeliness, lack of essential recitals, or reference to a
non-appealable order, is clear to the district court, it may
disregard the purported notice of appeal and proceed with the
case, knowing that it has not been deprived of jurisdiction.
If the district court is in doubt as to whether the notice of
appeal is inoperative by reason of some such defect, it may
decline to act further until the purported appellee obtains
dismissal of the appeal in the court of appeals. In the rare
instance where the district court proceeds with a case under
the mistaken belief that a notice of appeal is inoperative,
the appellant may apply to the court of appeals for a writ of
Van Cauwenberghe v. Baird, 486 U.S. 517, 521-22
(1988) the Supreme Court Court stated,
The courts of appeals have jurisdiction under 28 U.S.C.
§ 1291 of appeals “from all final decisions of the
district courts ... except where a direct review may be had
in the Supreme Court.” A party generally may not take
an appeal under § 1291 until there has been a decision
by the district court that “ends the litigation on the
merits and leaves nothing for the court to do but execute the
judgment.” Catlin v. United States, 324 U.S.
229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). In
Cohen v. Beneficial Industrial Loan Corp., supra,
however, we recognized a “small class” of
decisions that are immediately appealable under § 1291
even though the decision has not terminated the proceedings
in the district court. 337 U.S., at 546, 69 S.Ct. at 1225.
The Court stated that a decision is final and appealable for
purposes of § 1291 if it “finally determine[s]
claims of right 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.” Ibid. The Court refined the
“collateral order” doctrine of Cohen in
Coopers & Lybrand v. Livesay, 437 U.S. 463, 98
S.Ct. 2454, 57 L.Ed.2d 351 (1978). In Coopers & Lybrand,
the Court held that to come within the collateral order
doctrine of Cohen, the order must satisfy each of three
conditions: it must (1) “conclusively determine the
disputed question, ” (2) “resolve an important
issue completely separate from the merits of the action,
” and (3) “be effectively unreviewable on appeal
from a final judgment.” 437 U.S., at 468, 98 S.Ct., at
2458 (footnote omitted).
case, Defendant has not been convicted or sentenced. There
has been no “final decision of the district
court” as stated in 28 U.S.C. § 1291. The January
6, 2017 Order addressed the claims by Defendant that the
district court lacks jurisdiction over him on various
grounds. This district court conclusively determined the
disputed questions and resolved issues completely separate
from the merits of the action in the January 6, 2017 Order.
However, it is clear to this district court that all of the
issues addressed in the January 6, 2017 Order can be
effectively reviewable on appeal from a final judgment. The
January 6, 2017 Order does not come within the collateral
order doctrine. This Court concludes that the ...