
USCA1 Opinion

	




                            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.                                          I.                                          __                                      Background                                      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.                                         II.                                         ___                                       Analysis                                       Analysis                                       ________                                          A.                                          A.                                          __                            The Trial Court's Jurisdiction                            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.                                          B.                                          __                             The Right to a Speedy Trial                             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.                                          C.                                          __                                Ineffective Assistance                                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.                                         III.                                         ____                                      Conclusion                                      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.          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
