                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-11-2008

In Re: Albert Leo Be
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1573




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Recommended Citation
"In Re: Albert Leo Be " (2008). 2008 Decisions. Paper 1457.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1457


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                                                                            ELD-20-E
                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                        No. 08-1573
                                        ___________

                        IN RE: ALBERT LEO BERRETTINI, JR.
                            and MARY ANN BERRETTINI,
                                              Petitioners
                               ______________________

                         Petition for Writ of Mandamus from the
                            United States District Court for the
                             Middle District of Pennsylvania
                      (Related to MD/PA Criminal No. 07-cr-00422)
                                ______________________

                         Submitted Under Rule 21, Fed. R. App. P.
                                    February 29, 2008

             Before: RENDELL, AMBRO and STAPLETON, Circuit Judges

                                  (Filed: March 11, 2008)
                                      ______________

                                OPINION OF THE COURT
                                   _______________

PER CURIAM

       Albert Leo Berrettini Jr., and Mary Ann Berrettini, currently representing

themselves in federal court against tax-related criminal charges, have filed a petition for a

writ of mandamus. The Berrittinis have not clearly identified the relief they seek. As

best we can tell, they want this Court to direct the District Court to adjudicate the
government’s motion for a psychiatric and/or psychological examination, to reconsider its

rejection of certain “Demands” and “Affidavits,” and to dismiss the charges for lack of

jurisdiction. For the reasons set forth below, we conclude that mandamus relief is not

warranted.

       Issuance of a writ of mandamus is an appropriate remedy in extraordinary

circumstances only. See Sporck v. Peil, 759 F.2d 312, 314 (3d Cir. 1985). Its main

purpose is “to confine an inferior court to a lawful exercise of its prescribed jurisdiction

or to compel it to exercise its authority when it is its duty to do so.” Roche v. Evaporated

Milk Ass’n, 319 U.S. 21, 26 (1943). To justify the Court’s use of this remedy, a

petitioner must demonstrate that he has a “clear and indisputable” right to the writ. Kerr

v. United States District Court, 426 U.S. 394, 403 (1976); DeMasi v. Weiss, 669 F.2d

114, 117 (3d Cir. 1982). A writ is not a substitute for an appeal; only if a direct appeal is

unavailable will the court determine whether a writ of mandamus will issue. See In Re

Ford Motor Co., 110 F.3d 954, 957 (3d Cir. 1997).

       The Berrettinis have not shown a “clear and indisputable right” to the writ. To the

extent that the Berrettinis seek an order directing the District Court to adjudicate the

government’s pending motion for a psychiatric and/or psychological examination, there

clearly has not been a delay that rises to the level of a denial of due process. See Madden

v. Myers, 102 F.3d 74, 79 (3rd Cir. 1996). Although an appellate court may issue a writ

of mandamus on the ground that undue delay is tantamount to a failure to exercise



                                              2
jurisdiction, id., the manner in which a court controls its docket is discretionary. See In re

Fine Paper Antitrust Litigation, 685 F.2d 810, 817 (3d Cir. 1982). Here, the government

filed its motion on February 14, 2008, the Berrettinis submitted a brief in opposition on

February 25, 2008, and a reply brief is due by March 13, 2008. These circumstances do

not constitute undue delay.

       The Berrettinis also emphasize that several of their “Demands” and “Affidavits”

were deemed withdrawn for failure to file supporting briefs and, alternatively, denied on

the merits by the District Court. Importantly, however, the Berrettinis have not

demonstrated that review of the District Court’s determinations will be unavailable on

direct appeal.

       Finally, the Berrettinis appear to seek an order directing the District Court to

dismiss the charges for lack of jurisdiction, or to at least require the government to show

cause why the case should not be dismissed for lack of subject matter jurisdiction.

“When a mandamus petitioner challenges a district court’s subject-matter jurisdiction . . .

our issuance of the writ has traditionally been reserved to ‘restrain[ing] jurisdictional

excesses, particularly when a lower court has acted without authority to do so.’” In re

Briscoe, 448 F.3d 201, 216 (3d Cir. 2006) (quoting In re Sch. Asbestos Litig., 921 F.2d

1310, 1314 (3d Cir. 1990) (citation omitted)). Thus, mandamus relief is justified “only if

the petitioners show that the district court’s lack of subject matter jurisdiction is ‘clear

and indisputable’ and that no other adequate means exists to attain relief.” In re Sch.



                                               3
Asbestos Litig., 921 F.2d at 1314. The Berrettinis contend that the District Court lacks

federal jurisdiction over them because they are not “federal ‘taxpayers’ as defined in the

Federal Tax Code.” This type of “hackneyed tax protester refrain[]” is patently incorrect.

United States v. Chisum, 502 F.3d 1237, 1243 (10 th Cir. 2007).

       For the foregoing reasons, we will deny the mandamus petition.




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