                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 03-22
SHAWN ARNETTE BREEDEN,
             Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 03-23
KEVIN THOMAS CASSELL,
             Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 03-24
MICHAEL ANTHONY CARPENTER,
             Defendant-Appellant.
                                       
           Appeals from the United States District Court
      for the Western District of Virginia, at Charlottesville.
             Samuel G. Wilson, Chief District Judge.
                           (CR-03-13)

                      Argued: February 24, 2004
                       Decided: April 30, 2004

       Before WILKINS, Chief Judge, and WIDENER and
                  SHEDD, Circuit Judges.
2                     UNITED STATES v. BREEDEN
Affirmed by published opinion. Chief Judge Wilkins wrote the major-
ity opinion, in which Judge Shedd joined. Judge Widener wrote a
concurring and dissenting opinion.


                             COUNSEL

ARGUED: Steven David Rosenfield, Charlottesville, Virginia;
Pamela Rogers Johnson, Charlottesville, Virginia, for Appellants.
William Frederick Gould, Assistant United States Attorney, Char-
lottesville, Virginia, for Appellee. ON BRIEF: Denise Y. Lunsford,
DENISE Y. LUNSFORD, P.C., Charlottesville, Virginia, for Appel-
lant Breeden; David L. Heilberg, Charlottesville, Virginia, for Appel-
lant Cassell; J. Lloyd Snook, III, SNOOK & HAUGHEY, P.C.,
Charlottesville, Virginia, for Appellant Carpenter. John L. Brownlee,
United States Attorney, Timothy J. Heaphy, Assistant United States
Attorney, Charlottesville, Virginia, for Appellee.


                              OPINION

WILKINS, Chief Judge:

   The Federal Death Penalty Act of 1994 requires the Government
to file a notice of intent to seek the death penalty "a reasonable time
before the trial or before acceptance by the court of a plea of guilty."
18 U.S.C.A. § 3593(a) (West 2000). Forty-one days before the sched-
uled beginning of their trial for offenses punishable by death, Shawn
Arnette Breeden, Kevin Thomas Cassell, and Michael Anthony Car-
penter (collectively, "Appellants") moved to prohibit the Government
from seeking the death penalty against them on the basis that it was
then too late to file a death notice that would comply with § 3593(a).
The district court did not rule on this motion until after the Govern-
ment had filed a death notice; considering the date of the filing and
a rescheduled trial date, the district court denied the motion. For the
reasons set forth below, we affirm.

                                   I.

  Appellants are charged with six offenses in connection with the
robbery and murder of Kevin Lee "Calvin" Hester, which occurred
                       UNITED STATES v. BREEDEN                          3
during a string of violent robberies allegedly committed by Appel-
lants on August 8 and 9, 2002. The charges against Appellants
include three offenses that are punishable by death.

   Appellants were indicted in February 2003, and an initial trial date
was set for March 18. Shortly thereafter, the trial was rescheduled for
July 14, 2003. On June 3—41 days before the scheduled trial date—
Breeden moved to prohibit the Government from seeking the death
penalty ("motion to prohibit"), asserting that the Government had
failed to provide notice of its intention to seek the death penalty a rea-
sonable time before trial. Cassell and Carpenter subsequently joined
this motion. The district court conducted a hearing on the matter on
June 13, but did not rule at that time.

   On June 20, 2003, the Government moved for a continuance on the
basis that it could not be prepared for a July 14 trial. In support of this
motion, the Government noted that numerous pieces of evidence were
still being analyzed, that no witnesses had been subpoenaed, and that
additional investigation was being conducted concerning two rob-
beries that occurred before the murder. On June 24, the district court
conducted a telephone conference regarding the motion for continu-
ance and the recent decision of this court in United States v. Ferebe,
332 F.3d 722 (4th Cir. 2003).1 At that hearing the district court
informed the Government that it had until July 8 to file a notice of
intent to seek the death penalty. On July 3, the court held another tele-
phonic hearing at which it considered the Government’s request for
an extra week to file its notice. The court granted this request. On July
7, the district court entered a written order granting the Government’s
motion to continue and scheduling the trial for February 9, 2004.2

   The Government filed its notice of intent to seek the death penalty
on July 15. On August 26, the district court entered an order denying
the motion to prohibit.
  1
    The telephonic hearing was not recorded or transcribed. Appellants
complain that one or more of the attorneys lost the connection at various
points during the hearing, but they do not allege any harm from this fact.
  2
    The district court subsequently rescheduled the trial to begin May 24,
2004. At oral argument, the parties informed us that another motion to
continue is pending before the district court.
4                      UNITED STATES v. BREEDEN
                                   II.

   We begin with the question of our jurisdiction, as we must, see
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).
Appellate jurisdiction is generally governed by 28 U.S.C.A. § 1291
(West 1993), which provides that the courts of appeals "shall have
jurisdiction of appeals from all final decisions of the district courts of
the United States." A "final" judgment is one "that ends the litigation
on the merits and leaves nothing for the court to do but execute the
judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978)
(internal quotation marks omitted). "In the criminal context, finality
comes with the conviction and imposition of sentence." United States
v. Moussaoui, 333 F.3d 509, 514 (4th Cir. 2003) (internal quotation
marks omitted).

   The Supreme Court has long given the "finality" requirement of
§ 1291 a practical construction rather than a technical one. See Cohen
v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). To this
end, the Court has identified "a narrow class" of collateral orders "that
do not terminate the litigation, but must, in the interest of achieving
a healthy legal system, nonetheless be treated as final." Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994) (internal quo-
tation marks & citation omitted); see id. at 867-68 ("Immediate
appeals from such orders . . . do not go against the grain of § 1291,
with its object of efficient administration of justice in the federal
courts." (citation omitted)). Such decisions are immediately appeal-
able.

   The collateral order doctrine provides that to be subject to immedi-
ate appeal, a ruling of the district court "must conclusively determine
the disputed question, resolve an important issue completely separate
from the merits of the action, and be effectively unreviewable on
appeal from a final judgment." Coopers & Lybrand, 437 U.S. at 468.
In the criminal context, we apply these requirements "with the utmost
strictness." Flanagan v. United States, 465 U.S. 259, 265 (1984); see
United States v. Lawrence, 201 F.3d 536, 537 (4th Cir. 2000)
("Piecemeal or interlocutory appeals are disfavored in the federal
courts, especially in criminal cases.").

   In Ferebe, this court held that an order denying a motion to strike
a death notice for failure to file a reasonable time before trial is imme-
                       UNITED STATES v. BREEDEN                         5
diately appealable under Cohen. See Ferebe, 332 F.3d at 726. This
holding was based largely on the conclusion that § 3593(a) establishes
"a prophylactic [right to] reasonable notice before trial." Id. at 727
(emphases omitted); see id. (stating that the "purpose [of § 3593(a)]
is to ensure that the accused will not be required to stand trial for his
life without having received adequate notice before that trial that he
is to stand trial for [a] capital offense"). The Ferebe majority thus
concluded that the right guaranteed by § 3593(a) is akin to the right
not to be tried in violation of the Double Jeopardy Clause. See id. at
729.

    Here, unlike in Ferebe, Appellants moved not to strike a death
notice that had been filed, but rather to preclude the Government from
filing a death notice at all. Had the district court denied this motion
at any time prior to the filing of the death notice, we would have
lacked jurisdiction over an interlocutory appeal of that decision. An
order denying a motion to prohibit is necessarily speculative, because
it leaves open the question of whether a death notice will be filed a
reasonable time before trial. In other words, after the denial of a
motion to prohibit the possibility remains that the district court will
determine that a subsequently filed death notice was untimely. Such
an order "leave[s] the matter open, unfinished or inconclusive" and
therefore fails the first prong of the collateral order doctrine. Abney
v. United States, 431 U.S. 651, 658 (1977) (internal quotation marks
omitted); cf. Ferebe, 332 F.3d at 727 (concluding that an order deny-
ing a motion to strike and scheduling the case for trial satisfied the
first prong of the collateral order test because it "fully dispose[d]" of
the question).

   However, the district court waited to rule on the motion to prohibit
until after the death notice had been filed, and at that point treated the
motion to prohibit as though it were actually a motion to strike. The
district court acted properly in doing so. Waiting to rule until the
death notice had been filed avoided the possibility, described above,
of additional litigation being engendered by a denial of the motion to
prohibit followed by the filing of a death notice and a motion to
strike. Additionally, delaying a ruling allowed for the possibility that
the Government would elect not to seek the death penalty.

  The consequence of the delay by the district court was that the
motion to prohibit was effectively transmuted into a motion to strike.
6                      UNITED STATES v. BREEDEN
The denial of this motion by the district court is appealable under
Ferebe. Accordingly, we possess jurisdiction.

                                   III.

   Analysis of whether the right to reasonable notice has been violated
requires an inquiry into the objective reasonableness of the timing of
the notice. See Ferebe, 332 F.3d at 731. Objective reasonableness is
a question of law, and as such is subject to de novo review. See, e.g.,
United States v. Carpenter, 341 F.3d 666, 668 (8th Cir. 2003)
(reviewing de novo question of whether law enforcement officer’s
reliance on warrant was objectively reasonable); Altman v. Bedford
Cent. Sch. Dist., 245 F.3d 49, 75 (2d Cir. 2001) (stating that district
court application of objective standard is reviewed de novo).

   In Ferebe, the court set forth a non-exhaustive list of factors to
consider in determining whether a death notice is filed an objectively
reasonable time before trial:

     To judge an accused’s challenge to the reasonable timeliness
     of a Death Notice requires evaluation of, among other fac-
     tors that may appear relevant, (1) the nature of the charges
     presented in the indictment; (2) the nature of the aggravating
     factors provided in the Death Notice; (3) the period of time
     remaining before trial, measured at the instant the Death
     Notice was filed and irrespective of the filing’s effects; and
     . . . (4) the status of discovery in the proceedings.

Id. at 737 (footnote omitted). The district court premised its applica-
tion of these factors on its determination that the relevant dates for the
analysis were July 15, 2003 (the date the death notice was filed) and
February 9, 2004 (the then-scheduled trial date). With respect to the
nature of the charges, the court concluded that the factual and legal
issues surrounding the prosecution were not so complex as to render
seven months notice objectively unreasonable. The court reached the
same conclusion regarding the aggravating factors, concluding that
they were "typical." J.A. 206. Regarding the third factor—the time
between the filing of the death notice and the trial—the court ruled
that seven months was an adequate amount of time to prepare for a
capital trial. Similarly, regarding the status of discovery, the court
                       UNITED STATES v. BREEDEN                          7
determined that seven months was an adequate amount of time to
complete analysis of the evidence.

   Appellants’ challenge to the ruling of the district court concerns
only the third prong of the analysis. Appellants contend that the dis-
trict court erred in basing its analysis on the July 15 filing of the death
notice and the February 9 trial date, maintaining that the district court
should have looked at the 41-day period between their filing of the
motion to prohibit—June 3—and the trial date as of the filing of that
motion—July 14. We conclude that the district court based its analy-
sis on the correct dates.

                                    A.

   As we have already noted, the district court correctly delayed rul-
ing on the motion to prohibit until after the death notice had been
filed; at this point, as earlier stated, the motion to prohibit was effec-
tively transmuted into a motion to strike. Ferebe is quite explicit that
the time frame for determining the objective reasonableness of a death
notice begins on the date the death notice is filed. See Ferebe, 332
F.3d at 737 & n.6. Therefore, the starting date employed by the dis-
trict court was correct.

                                    B.

   On the date the Government filed the death notice, the trial was
scheduled for February 9, 2004, and this was the ending date used by
the district court in determining whether the death notice was filed a
reasonable time before trial. Appellants contend that the district court
erred in using this date because the granting of the Government’s
motion for continuance was an abuse of discretion. See United States
v. Stewart, 256 F.3d 231, 245 (4th Cir. 2001) (stating standard for
reviewing ruling on motion for continuance). The Government
argues, however, that because we do not have an independent basis
for jurisdiction over the order granting the continuance, we must
assume the validity of the continuance in deciding this appeal.

   We agree with the Government that an order granting or denying
a continuance is not a "final order" for purposes of the collateral order
8                     UNITED STATES v. BREEDEN
doctrine because it can be effectively reviewed post-judgment. Com-
pare Coopers & Lybrand, 437 U.S. at 468 (stating that a collateral
order is one that, inter alia, is "effectively unreviewable on appeal
from a final judgment"), with Stewart, 256 F.3d at 244-46 (reviewing,
post-trial, a denial of a motion for continuance). Therefore, we are not
at liberty to review the propriety of the granting of the continuance.3

   Under the circumstances existing at the time the death notice was
filed—namely, a scheduled trial date of February 9, 2004—the dis-
trict court did not err in denying the motion to strike. Indeed, Appel-
lants concede as much.

                                  IV.

  For the reasons set forth above, we affirm the order of the district
court.

                                                           AFFIRMED

WIDENER, Circuit Judge, concurring and dissenting:

   I concur in the result and in all of the majority opinion except Part
III. B.

   Part III. B decides that the grant of a continuance should be consid-
ered separately, is not a final order, and so is not subject to review
in this appeal.

   I agree that the grant or denial of a continuance is ordinarily not
an order subject to interlocutory review, but in U.S. v. Ferebe, 332
F.3d 722 (4th Cir. 2003), we decided that the government’s giving of
notice in a federal death penalty case is subject to interlocutory
review to ascertain whether the death penalty notice under 18 U.S.C.
§ 3593(a) has been given "a reasonable time before the trial or before
acceptance by the court of a plea of guilty." As the majority opinion
    3
   We express no opinion regarding whether the continuance was prop-
erly granted. Further, we leave open the question of what remedy would
be available to Appellants if, on appeal, the continuance were to be
declared improper.
                      UNITED STATES v. BREEDEN                        9
relates, the answer to that question is determined by whether the
notice "is filed an objectively reasonable time before trial." Slip p.6.

   In the case at hand, the contention of the defendants is that the
death penalty notice given 31 days before trial is objectively unrea-
sonable. Br. p.i. To reach that conclusion, the defendants argue that
the continuance granted by the court from July until February, a
period of some seven months, enabled the government to give the
death notice an objectively reasonable time before trial when the gov-
ernment had forfeited any right to give the death notice by not so
doing in order that the trial could proceed on July 14, 2003 as previ-
ously scheduled. Because the granting of the continuance is necessar-
ily relevant to the time the death notice was given, I think that
question is reviewable under Ferebe. And, in my opinion, the conten-
tion of the defendants is without merit.

   As noted, the case was first set for trial on March 18, 2003. Then,
on the March 6, 2003 motion of Cassell, a new trial date was set, on
March 12, 2003, for July 14, 2003, some four months later. All of the
defendants joined in this request, and the government did not object
to the continuance from March 18, 2003 until July 14, 2003.

   On June 4, 2003, Breeden, and on June 6, Cassell, moved to bar
the government from seeking the death penalty, which motion was
joined by Carpenter on June 13, 2003. On June 20, 2003, the govern-
ment moved for a continuance of the July 14, 2003 trial date, and, on
July 15, 2003, filed its notices to seek the death penalty. On July 7,
2003, the district court continued the case until February 9, 2004, and
at that time, it related in that order, which relation has not been
objected to then or now.

    The defendants and the government then informed the court
    that they could not be prepared for a death penalty case
    before February 9, 2004. A.141.

The district court based its decision on stated facts that there were a
number of items of evidence still being analyzed at the forensic labo-
ratory in Richmond; that a bullet taken from the body of the victim
was being analyzed at the same laboratory to ascertain if the gun had
been used in other crimes; that the government was in the process of
10                     UNITED STATES v. BREEDEN
gathering evidence of two robberies that had occurred immediately
before the murder; and that the government expected to complete its
investigation and turn over relevant discovery to the defendants in the
next few weeks. The district court then concluded that a failure to
grant such a continuance would deny counsel for the defendants and
the attorney for the government the reasonable time necessary to
effectively prepare for trial, taking into account the exercise of due
diligence.

   The findings of the district court are contested by way of argument,
but the record does not show factual inaccuracies of any consequence
in the evidence considered by the district court when it made its deci-
sion to continue the trial until February. For example, the statement
by the defendants’ attorneys to the district court, noted in that court’s
order of July 7th, that they could not be prepared for a death penalty
trial before February 9th, would alone support the conclusion of the
district court that a failure to grant the continuance until February
would deny the defendants’ attorneys the reasonable time to effec-
tively prepare for trial.*

   I am thus of opinion that the defendants have not shown that the
district court abused its discretion in granting the continuance and
would so hold.

  *Indeed, the defendants’ July 7th position, that seven months were
needed to prepare for trial, is entirely inconsistent with the March 13th
continuance of the trial date until July 14th, a period of some four
months. The July 7th position of the attorneys, that seven months were
needed to prepare for trial, is proof certain that they could not have been
prepared for trial on the July 14th date and exposes the fallacy of the
argument now made to support the appeal.
