                                                                         F IL E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                                     PU BL ISH
                                                                           July 7, 2006
                   U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
                                 T E N T H C IR C U IT




U N ITED STA TES O F A M ER ICA,

              Plaintiff-A ppellee,
                                                          No. 05-8053
v.

TIM OTHY DESHAZER,

              Defendant-Appellant.




                  A ppeal from the U nited States D istrict C ourt
                           for the D istrict of W yom ing
                             (D .C . N o. 00-C R -25-D )


W . Keith Goody, Attorney at Law, Alpine, W yoming, for D efendant-Appellant.

David A. Kubichek, Assistant United States Attorney, District of W yoming
(M atthew H. M ead, United States Attorney, District of W yoming, with him on the
brief), Casper, W yoming, for Plaintiff-Appellee.


Before H E N R Y , B A LD O C K and M U R PH Y , Circuit Judges.


M U R PH Y , Circuit Judge.
                               I. IN TR O D U C TIO N

      Timothy deShazer appeals the partial denial of his M otion to Continue

Trial, or in the A lternative, Renew al of M otion to D ismiss - Jackson v. Indiana

(the “M otion”). Although the district court granted M r. deShazer’s request to

continue his trial during the pendency of additional competency evaluations, it

denied that part of the M otion seeking outright dismissal of the indictment. On

appeal, M r. deShazer asserts the district court erred in refusing to dismiss the

indictment because his pretrial confinement during the pendency of competency

proceedings has prejudiced his ability to present an adequate defense to the

charges against him. Although M r. deShazer asserts he raises this claim pursuant

to Jackson v. Indiana, 406 U.S. 715 (1972), this court concludes his claim is, in

reality, a disguised speedy-trial claim. Because this court does not have

jurisdiction to review interlocutory orders of the district courts refusing to dismiss

indictments on speedy-trial grounds, United States v. M acDonald, 435 U.S. 850,

861 (1978), we dism iss M r. deShazer’s appeal for lack of appellate jurisdiction.




                               II. B A C K G R O U N D

      To place this appeal in context, it is necessary to set out the history of M r.

deShazer’s pretrial confinement. On January 5, 2000, M r. deShazer was charged

in W yoming state court with attempted kidnapping, aggravated assault and



                                         -2-
battery, and aggravated burglary. A few days later, M r. deShazer was indicted in

federal district court on one count of interstate stalking, in violation of 18 U.S.C.

§ 2261A, and one count of using or carrying a firearm during and in relation to a

crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Both the federal

and state charges arose out of a stalking incident which culminated when M r.

deShazer broke into the victim’s home and attempted to kidnap her. 1

      Proceedings on the federal charges w ere deferred pending a state-court trial

on the state charges. M r. deShazer was found guilty on the state charges in M ay

2000. Shortly thereafter, while still in state custody aw aiting sentencing, M r.

deShazer was diagnosed with delusional and depressive disorders. 2 The United

States moved the federal district court to take M r. deShazer into federal custody

pursuant to a w rit of habeas corpus ad prosequendum so he could undergo further

      1
        The facts underlying the charges against M r. deShazer are not pertinent to
the resolution of the purely legal issues raised in this appeal and will not be set
out in this opinion. Those facts, however, are set out in detail in the opinion of
the W yoming Supreme Court on direct appeal from the state court convictions.
deShazer v. State, 74 P.3d 1240, 1243-44 (W yo. 2003).
      2
        On the motion of state-court defense counsel, the state trial court ordered
M r. deShazer evaluated at the W yoming State Hospital. See W yo. Stat. Ann. § 7-
11-303(a), (b). After being diagnosed with delusional and depressive disorders,
the state trial court ordered forced medication. In a subsequent report to the state
trial court, the W yoming State Hospital concluded M r. deShazer’s mental illness
was “well controlled by his current medication.” Nevertheless, the author of the
report opined M r. deShazer was incompetent to assist in his defense at his state
trial and lacked the capacity to appreciate the wrongfulness of his conduct or to
conform his conduct to the requirements of the law at the time the crimes w ere
comm itted.

                                          -3-
psychiatric evaluation. W yoming wished to obtain a second opinion on the

question of M r. deShazer’s competence and indicated a federal evaluation would

be satisfactory. M r. deShazer had no objection and specifically waived his right

to a speedy trial and his rights under the Interstate Compact on Detainers.

Accordingly, the district court ordered M r. deShazer taken into federal custody

and subjected to a psychiatric or psychological examination pursuant to the terms

of 18 U.S.C. §§ 4241, 4242, and 4247.

      M r. deShazer w as evaluated at the Federal M edical Center in Rochester,

M innesota; Federal M edical Center staff agreed with the conclusion of the

W yoming State Hospital that M r. deShazer w as currently competent to stand trial.

M r. deShazer was returned to W yoming state custody on November 6, 2001, to

await sentencing on his state convictions. After his state sentencing proceedings

were complete, M r. deShazer was again taken into federal custody, on June 25,

2002, to resolve the pending federal charges. Since that time, M r. deShazer has

remained in federal custody pending trial on the federal charges.

      There is no question the federal proceedings have been repeatedly delayed.

Arraignment was originally scheduled for July 8, 2002, but was continued because

defense counsel claimed M r. deShazer was incompetent to proceed and sought an

independent mental evaluation to support that assertion. The independent

competency evaluation, along with a notice that M r. deShazer would pursue an



                                         -4-
insanity defense at trial, was provided to the district court on September 13, 2002.

The independent competency evaluation concluded M r. deShazer was presently

competent to stand trial. The arraignment was rescheduled for October 15, 2002,

but was continued due to defense counsel’s renew ed concerns about M r.

deShazer’s competency. The district court then determined it was necessary to

conduct a competency hearing.

      The district court held a competency hearing on February 24, 2003.

Following the hearing, the district court found M r. deShazer competent to stand

trial and reset the arraignment for April 16, 2003. At the arraignment, the district

court scheduled a jury trial for June 2, 2003. Shortly thereafter, M r. deShazer

filed a motion to dismiss the federal charges based upon the Double Jeopardy

Clause, asserting his state court prosecution was a sham and a cover for a federal

prosecution. After further delays at the request of M r. deShazer, the district court

held a hearing on the motion to dismiss on June 24, 2003. The district court

subsequently denied the motion to dismiss; M r. deShazer quickly filed a notice of

appeal; and further proceedings in the district court were stayed pending the

outcome of the appeal in this court. After the W yoming Supreme Court

overturned M r. deShazer’s state court convictions on direct appeal, M r. deShazer

moved this court to dismiss as moot his appeal from the denial of his Double-




                                         -5-
Jeopardy-based motion to dismiss the federal charges. This court granted M r.

deShazer’s motion and the matter w as reactivated in the district court.

      On December 22, 2003, the district court held a status conference and set a

trial date of February 17, 2004. Shortly thereafter, the district court entered an

order setting another competency hearing for February 13, 2004, four days before

the jury trial was set to begin. The very next day, M r. deShazer asked the district

court to allow another competency examination and to continue the competency

hearing until February 17, 2004, the date the jury trial was set to begin. At the

conclusion of the February 17 competency hearing, the court ordered, in

accordance with the positions of both parties, that M r. deShazer be re-evaluated

by the Bureau of Prisons as to his competency to stand trial.

      The district court set another competency hearing for July 28, 2004. At the

request of both M r. deShazer and the government, the competency hearing was

continued until August 25, 2004, though the district court noted it would not

authorize any further delays. Despite the district court’s admonition, M r.

deShazer again moved to continue the competency hearing and, furthermore,

requested the appointment of experts to perform competency evaluations on

behalf of the defense. After a hearing on the matter, the district court granted M r.

deShazer’s requests. W hile those evaluations were underway, and before a new

date had been set for a competency hearing, the district court set a trial date of



                                          -6-
January 4, 2005; the district court also set an alternate trial date of April 18,

2005, in case the first date was taken up by a different criminal matter.

       Approximately two weeks before the January 4, 2005 trial date, M r.

deShazer filed an omnibus motion asking the district court to continue the trial

until April 18, 2005, schedule a competency hearing, and dismiss the charges

against him for violation of his rights under Jackson v. Indiana, 406 U.S. 715

(1972). After a hearing on the matter, the district court entered an order denying

the request to dismiss the indictment outright, but granting the request to continue

the trial during the pendency of further competency proceedings.

       The district court interpreted M r. deShazer’s motion to dismiss as raising

two distinct claims: (1) a claim under Jackson that he has been held more than a

reasonable time necessary to determine whether there was a substantial chance he

would attain competency to stand trial in the foreseeable future; and (2) a Sixth

Amendment speedy-trial claim challenging his lengthy pretrial confinement. In

rejecting M r. deShazer’s Jackson-based ground for dismissal of the indictment,

the district court ruled as follow s:

              The D efendant’s right under Jackson to be held no more than a
       reasonable amount of time necessary to determine whether he is
       competent to stand trial has not been violated. The Court in Jackson
       declined to prescribe arbitrary time limits. [406 U.S at 738]
       Therefore, whether a pretrial detention is reasonable is left to the
       judgment of the trial court. In this case, no doctor has stated that the
       Defendant will never be competent to stand trial. To the contrary,
       there has always been hope that with proper treatment he would

                                           -7-
      become competent. Take for example, Dr. Kahn’s latest letter which
      opines that there is at least a possibility that the Defendant will
      become competent after treatment with Geodon. In fact, the
      Defendant was found to be competent by this Court in M arch of
      2003. Furthermore, much of the delay in this case was caused by the
      parallel state court proceedings as w ell as the Defendant’s appeal to
      the Tenth Circuit. Those periods in w hich the proceedings were
      delayed for the purpose of determining the Defendant’s competence
      were justified, and were always permitted with the hope that
      evaluation and treatment would render the defendant competent to
      stand trial. The Defendant has been held only the amount of time
      reasonably necessary to determine whether he is competent, and no
      longer, and the D efendant’s rights under Jackson have not been
      violated.

The district court likewise rejected M r. deShazer’s Sixth-Amendment-based

ground for dismissal. It concluded that although the length of the delay weighed

against the government, the reasons for the delay, M r. deShazer’s failure to assert

his right to a speedy trial, and the lack of prejudice flowing from the delay all

weighed in the government’s favor. See generally United States v. Tranakos, 911

F.2d 1422, 1427 (10th Cir. 1990) (“A Sixth Amendment speedy trial claim is

assessed by balancing the length of the delay, the reason for the delay, whether

the defendant asserted his right to a speedy trial, and whether the delay prejudiced

the defendant.”).

      Although the district court denied M r. deShazer’s motion to dismiss

outright the indictment against him, it reluctantly granted that portion of the

M otion seeking a further continuance of the proceedings in the case. The district

court concluded further evaluation was appropriate, reasoning as follow s:

                                          -8-
       The Court finds pursuant to 18 U.S.C. § 4241(a) and § 4242(a)
that reasonable cause exists to believe the Defendant may presently
be suffering from a physical or mental disease or defect rendering
him mentally incompetent to the extent that he is unable to
understand the nature and consequences of the proceedings against
him or assist properly in his defense, and further, that questions have
arisen regarding defendant’s physical and mental competence at the
time of the commission of the charged offense.
       The Court is aware that a psychological and competency
evaluation has already been performed at a Bureau of Prisons
medical facility in 2001, in which the Defendant was found to be
competent. Since the original evaluation, the Defendant has been
repeatedly evaluated by psychiatrists and psychologists outside the
federal system, all of w hom have concluded that the D efendant’s
mental capacity is impaired by a delusional disorder. Defense
counsel points out that the anomalous federal evaluation was
deficient in part because it was prepared by a clinical psychologist
who was merely an intern at the time, not a psychiatrist as the C ourt
had directed. Defense counsel argues that the Defendant was never
appropriately treated due to the original deficient evaluation and that
only in the past few months, while under the care of Drs. Nash and
Kahn at the W yoming State Hospital, has he been appropriately
treated.
       Though the Court is exceedingly reluctant to allow additional
delay while yet another evaluation is completed, given the tortured
history in this case, the Court finds it prudent to order an evaluation
from which it may determine whether this Defendant will ever be
capable of standing trial. At this point, there is some hope that the
Defendant can regain competence and the Court will endure this one
further delay to assess this possibility. The Court hopes that the
medical director of the Bureau of Prisons facility to which the
Defendant is assigned will recognize that the history of the
Defendant’s case requires the matter to be expedited with some
urgency. The Court is extremely cognizant of the five-year delay in
bringing this case to trial and stresses its determination that there can
be no further delays in determining whether the Defendant is
competent, or likely to become competent in the foreseeable future.
The Court requests that the Defendant’s evaluation be given the
highest priority.



                                   -9-
                                III. D ISC USSIO N

      On appeal, M r. deShazer asserts the district court erred in refusing to

dismiss the indictment against him. He summarizes his argument as follow s:

             The defendant has been in custody for almost six years, and the
      federal prosecution is still pending. All of the delay has been caused
      by competency issues and procedural decisions made by the United
      States. It would be unreasonable to permit the prosecution to
      continue given the inordinate delay and prejudice to the defendant.

Appellant’s Br. at 16. For its part, the government asserts that although M r.

deShazer relies on Jackson v. Indiana, 406 U.S. 715 (1972), in support of his

claimed entitlement to dismissal of the indictment, his claims are really disguised

interlocutory Sixth Amendment speedy-trial claims over which this court lacks

jurisdiction. See M acDonald, 435 U.S. at 861. To resolve the jurisdictional

question raised by the government, it is necessary to set out at some length the

decisions in Jackson and M acDonald.

      Theon Jackson was “a mentally defective deaf mute with a mental level of a

pre-school child.” Jackson, 406 U.S. at 717. He was charged, in Indiana state

court, with two counts of robbery. Id. Upon entry of a not guilty plea, the state

court set in motion Indiana’s procedures for determining Jackson’s competency to

stand trial. Id. At a competency hearing, two court-appointed psychiatrists

presented uncontradicted evidence that “Jackson’s almost non-existent

communication skill, together with his lack of hearing and his mental deficiency,



                                        -10-
left him unable to understand the nature of the charges against him or to

participate in his defense.” Id. at 718. Both doctors opined that it was w holly

unlikely Jackson would ever acquire the communication skills necessary to

proceed to trial. Id. at 718-19. Based on that evidence, the state court concluded

Jackson was incompetent to stand trial and “ordered him committed to the Indiana

Department of M ental H ealth until such time as that Department should certify to

the court” Jackson was competent. Id. at 719. Jackson appealed the ruling in state

court, contending commitment under those circumstances amounted to a life

sentence without ever being convicted of a crime, in deprivation of the Fourteenth

Amendment rights to due process and equal protection. Id. After the state court

denied relief on direct appeal, the Supreme Court took the matter up on a writ of

certiorari. Id.

      The Supreme Court concluded Jackson’s commitment under the

circumstances amounted to a violation of the Fourteenth Amendment’s Equal

Protection Clause. Id. at 723-30. The Court began by noting the chances Jackson

would ever meet the competency standards of the relevant Indiana statute were “at

best minimal, if not nonexistent.” Id. at 727. Accordingly, as a matter of state

law, Jackson’s commitment was “permanent in practical effect.” Id. In stark

contrast to “incompetent” criminal defendants w ho were committed until

adjudged “sane,” persons subject to civil commitment in Indiana fared much



                                        -11-
better because the standards for commitment were significantly more rigorous and

the standards governing release were far less exacting. Id. at 727-29. The

Supreme Court held that “subjecting Jackson to a more lenient commitment

standard and to a more stringent standard of release than those generally

applicable to all others not charged with offenses . . . deprived [him] of equal

protection of the laws under the Fourteenth Amendment.” Id. at 730.

      The Supreme Court also determined the proceedings, which resulted in

Jackson’s indefinite commitment unaccompanied by the substantive and

procedural protections afforded persons subject to Indiana’s civil commitment

laws, violated due process. Id. at 731-38. The Court noted both the federal and

most state statutory schemes governing pretrial commitment of the mentally

incompetent required, as a basis for commitment, dangerousness to self;

dangerousness to others; and/or the need for custodial care, compulsory treatment,

or training. Id. at 731-32, 736-37. Jackson’s commitment, on the other hand,

rested exclusively on the mere fact he was presently incompetent to proceed to




                                         -12-
trial. Id. at 731, 737-38. 3 In concluding this amounted to a violation of the Due

Proceess Clause, the Court held:

      [A] person charged by a State with a criminal offense who is
      committed solely on account of his incapacity to proceed to trial
      cannot be held more than the reasonable period of time necessary to
      determine whether there is a substantial probability that he will attain
      that capacity in the foreseeable future. If it is determined that this is
      not the case, then the State must either institute the customary civil
      commitment proceeding that would be required to commit
      indefinitely any other citizen, or release the defendant. Furthermore,
      even if it is determined that the defendant probably soon will be able
      to stand trial, his continued commitment must be justified by
      progress toward that goal.

Id. at 738 (footnote omitted). 4

      3
       In this vein, the court noted
      Jackson was not afforded any formal comm itment proceedings
      addressed to his ability to function in society, or to society’s interest
      in his restraint, or to the State’s ability to aid him in attaining
      competency through custodial care or compulsory treatment, the
      ostensible purpose of the commitment. At the least, due process
      requires that the nature and duration of commitment bear some
      reasonable relation to the purpose for w hich the individual is
      committed.
Jackson v. Indiana, 406 U.S. 715, 738 (1972) (quotation, footnote, and alteration
omitted).
      4
        The federal statutory scheme governing M r. deShazer’s pretrial detention
during the pendency of competency proceedings is radically different from the
Indiana state scheme at issue in Jackson. In fact, the federal scheme was
designed to satisfy the concerns set out by the Court in Jackson. United States v.
Filippi, 211 F.3d 649, 652 (1st Cir. 2000). This court has described the federal
statutory scheme as mandating a three-step process for determining the
competency of a defendant to stand trial. United States v. Deters, 143 F.3d 577,
579 (10th Cir. 1998); see also 18 U.S.C. § 4241.
             At the first step, the court must decide whether there is
       “reasonable cause to believe that the defendant may presently be

                                        -13-
      Having determined Jackson’s indefinite commitment amounted to a

violation of both equal protection and due process, the Court turned its attention

to Jackson’s claim that the charges against him must be dismissed. Id. at 739-41.

Although it labeled Jackson’s claim “substantial,” the Court concluded the claim

was “not sufficiently ripe for ultimate decision.” Id. at 739. In a passage

particularly relevant to the case at hand, the Court noted



      suffering from a mental disease or defect rendering him mentally
      incompetent . . . .” W henever a court has reasonable cause to
      question the defendant’s competency, it may order a psychiatric or
      psychological examination of the defendant. The district court also
      has the discretion to confine a defendant during the examination
      period. The statute states that “[f]or the purposes of an examination
      pursuant to an order under section 4241, . . . the court may commit
      the person to be examined for a reasonable period, but not to exceed
      thirty days.” The director of the facility may obtain an extension
      lasting no longer than fifteen days upon a showing of good cause.
             At step two, the court conducts a hearing and uses the
      psychological reports from the step-one examination to determine
      whether the defendant is able to understand the nature and
      consequences of the proceedings against her. If not, the defendant is
      incompetent to stand trial, and the court must order the defendant
      hospitalized for a reasonable period of time (up to four months) for
      the purpose of determining whether there is a “substantial
      probability” that the defendant will become competent in the
      foreseeable future. If the court finds that this substantial probability
      exists, the defendant’s “step-two” confinement may be extended for
      an “additional reasonable period of time” to allow him to gain the
      capacity for trial.
             The third step occurs at the end of the second confinement
      period. At this stage, the court determines whether the defendant has
      become competent to stand trial or, alternatively, is a long-term
      incompetent requiring indefinite hospitalization.
Deters, 143 F.3d at 579-80 (citations omitted).

                                         -14-
      [d]ismissal of charges against an incompetent accused has usually
      been thought to be justified on grounds not squarely presented here:
      particularly, the Sixth-Fourteenth Amendment right to a speedy trial,
      or the denial of due process inherent in holding pending criminal
      charges indefinitely over the head of one who will never have a
      chance to prove his innocence.

Id. at 740 (footnote omitted). The Supreme Court declined to consider the issue

in the first instance, however, because it was neither presented to, nor ruled upon

by, the Indiana state courts. Id.

      Almost six years after the decision in Jackson, however, the Supreme Court

made clear that “an order denying a motion to dismiss an indictment on speedy

trial grounds” is not immediately appealable. M acDonald, 435 U .S. at 857. In so

ruling, the Court stated “a denial of a motion to dismiss on speedy trial grounds

does not represent a complete, formal and, in the trial court, a final rejection of

the defendant’s claim.” Id. at 858 (quotation omitted). Instead, the resolution of

a speedy trial claim requires “a careful assessment of the particular facts of the

case,” which is only possible after full development of the facts at trial. Id. In

addition, the right to a speedy trial is different from the other rights set out in the

Constitution because there is a countervailing societal interest in speedy trials that

is independent from, and occasionally in opposition to, the interests of the

defendant. Id. at 862. “Among other things, delay may prejudice the

prosecution’s ability to prove its case, increase the cost to society of maintaining




                                          -15-
those defendants subject to pretrial detention, and prolong the period during

which defendants released on bail may commit other crimes.” Id.

      Although there is no discussion of jurisdiction in Jackson, this court’s

precedents indicate an interlocutory appeal in the context of pretrial commitment

for competency proceedings is permitted because the “disputed question,” i.e., the

defendant’s liberty interest in not being confined during an evaluation, is wholly

separate from the merits of the criminal case. Deters, 143 F.3d at 581

(concluding interlocutory appeal permitted at step one of federal competency

scheme); United States v. Boigegrain, 122 F.3d 1345, 1349 (10th Cir. 1997) (en

banc) (concluding interlocutory appeal permitted at step two of federal

competency scheme). That interest cannot be fully vindicated in an appeal from a

final judgment. Deters, 143 F.3d at 581-82; Boigegrain, 122 F.3d at 1349. M r.

deShazer’s appeal, however, presents no such issue. Instead, M r. deShazer asks

this court to determine whether, by virtue of the delays in bringing this case to a

conclusion, the entire case must be dismissed. The distinction between these

questions is critically significant in resolving this court’s jurisdiction over M r.

deShazer’s appeal.

      A close review of M r. deShazer’s brief on appeal demonstrates the equal

protection and due process concerns at the heart of the Supreme Court’s decision

in Jackson do not relate to the issue M r. deShazer seeks to raise on appeal. See



                                          -16-
Deters, 143 F.3d at 580-81 (noting that jurisdictional issues, like those present in

this case, can only be resolved by examining an appellant’s brief to “identify[] the

precise issue being appealed”). Although M r. deShazer mentions equal protection

and due process in passing in his brief, he at no point attempts to connect those

particular concepts with the record in this case or with his personal situation.

         Unlike in Jackson, M r. deShazer is not challenging either the legality or the

terms and conditions of the district court’s order committing him for further

evaluation. Instead, the challenge set out in his brief is narrowly limited to that

part of the district court’s order denying his request to dismiss the indictment

outright on grounds of “unconstitutional delay.” Although Jackson is surely

relevant to the former issues, it is not at all relevant to the latter. Jackson, 406

U.S. at 739-40 (refusing to require dismissal of charges because the issue was not

ripe).

         A motion to dismiss based on what M r. deShazer has characterized as

unconstitutional delay does not raise the equal protection or due process issues

before the court in Jackson. Rather, issues of delay “as such” invoke the Sixth

Amendment’s guarantee of a speedy trial. Id. at 740. 5 M otions to dismiss based


         5
        To be precise, Jackson identified a potential due process issue in this
context as well, but described it only in terms of the fundamental unfairness of
indefinitely holding criminal charges over the head of an accused who, by virtue
of his incapacity, will never have an opportunity to prove his innocence. Jackson,
406 U.S. at 740. Because M r. deShazer has never been found incompetent to

                                           -17-
on speedy-trial concerns are jurisdictionally distinct from challenges to a district

court’s order to detain a defendant during the pendency of competency

proceedings. Compare M acDonald, 435 U.S. at 861 (holding that application of

Cohen principles “to speedy trial claims compels the conclusion that such claims

are not appealable before trial”), with D eters, 143 F.3d at 580-82 (holding

application of Cohen principles demonstrates that an order committing a person

for psychiatric or psychological examination under §§ 4241(b) and 4247(b) is

immediately appealable). M otions grounded on speedy-trial claims involve

factually intensive inquiries into the length of the delay, the reasons for the delay

and, most especially, the prejudice to the defendant occasioned by the delay.

M acDonald, 435 U.S. at 858-859. These questions cannot be confidently resolved

pretrial because they are dependent on, and intertwined with, developments

occurring at trial. Id. In addition, matters involving the Speedy Trial Clause are

not so clearly independent of the central question ultimately to be answered in a

crim inal trial as to w arrant pretrial appellate review. 6 Id. at 859. Furthermore,


stand trial, much less determined to be unlikely ever to be restored to competence,
the due process concern identified in Jackson is simply not applicable in the
present posture of this case.
      6
       As United States v. M acDonald explained:
      The [speedy-trial] claim would be largely satisfied by an acquittal
      resulting from the prosecution’s failure to carry its burden of
      proof. . . . [A] central interest served by the Speedy Trial Clause is
      the protection of the factfinding process at trial. The essence of a
      defendant’s Sixth Amendment claim in the usual case is that the

                                          -18-
interlocutory appeals involving speedy-trial claims do not involve a right that, if

not vindicated immediately, would necessarily be lost if review had to await final

judgment. Id. at 860-61.

      As is evident from the arguments M r. deShazer makes in his brief on

appeal, the extent of his claim is simply that it has taken too long to sort out the

competency questions he has repeatedly raised from the time he was first indicted

in federal court and that, solely by virtue of those delays, he is entitled to a

dismissal of the indictment. He does not challenge in any way, meaningful or

otherwise, that part of the district court’s order committing him to the custody of

the B ureau of Prisons for further evaluation pursuant to §§ 4241(b) and 4247. In

fact, the alternative prayer set out in his motion to dismiss, a further continuance

based on renewed claims of incompetency, invited just such an order. Nor does

M r. deShazer challenge any of the terms and conditions of the confinement order,

or the fact that his liberty will be compromised in some respects through its

implementation. Had he focused on such issues in this appeal, there is no doubt




      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.
435 U.S. 850, 859-60 (1978).

                                          -19-
such a challenge would be within this court’s jurisdiction. Deters, 143 F.3d at

579-582. 7

      Finally, M r. deShazer’s claims on appeal, and the context in which he

makes them, bear no resemblance to the facts and the issues before the Court in

Jackson. The order at issue in Jackson has no genuine analogue in the federal

system. Deters, 143 F.3d at 579-80 (describing, at length, the three-step process

set out in federal statutory law concerning the determination and ultimate

disposition of incompetency claims). As noted by the First Circuit, the structure

of the present federal provisions respecting competency and insanity issues, 18

U.S.C. §§ 4241-4247, were built around satisfying the Court’s concerns in

Jackson. United States v. Filippi, 211 F.3d 649, 652 (1st. Cir. 2000). That

explains why M r. deShazer has not focused on appeal on the manner in which the

district court exercised its authority to conduct competency proceedings pursuant

to the relevant federal statutes. He has, instead, asserted as his sole claim on




      7
        M r. deShazer seems to assert that this court should conclude, in the first
instance, that he is not competent to stand trial. Notwithstanding those assertions,
however, the district court thus far has entered only one definitive order on the
question, finding on M arch 24, 2003, that M r. deShazer w as competent. While
M r. deShazer has been committed under § 4241(b) for further evaluation of his
competency two more times, each of those additional evaluations was prompted
by renewed claims of incompetency on the part of M r. deShazer. The district
court, in an abundance of caution, acceded to M r. deShazer’s concerns and
postponed the proceedings in this case to receive additional evidence before
making a final determination on the issue.

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appeal that regardless of who is at fault for the delays in bringing this case to

trial, there have now simply been so many such delays that the indictment against

him must be dismissed outright. For the reasons set out above, that particular

claim has no relationship to the concerns at issue in Jackson but, instead, raises

speedy trial concerns. A speedy-trial claim is not, however, subject to an

interlocutory appeal. M acDonald, 435 U.S. at 861.




                                IV . C O N C L U SIO N

      M r. deShazer’s appeal is hereby D ISM ISSE D for lack of appellate

jurisdiction.




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