                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-9-2007

In Re: Kevin Flood
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3561




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Recommended Citation
"In Re: Kevin Flood " (2007). 2007 Decisions. Paper 224.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/224


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DLD-37                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 07-3561
                                       ___________

                           IN RE: KEVIN PATRICK FLOOD,
                                                  Petitioner
                       ____________________________________

                     On a Petition for Writ of Mandamus from the
       United States District Court for the Western District of Pennsylvania
                       (Related to W.D. Civ. No. 06-cv-00082J)
                     District Judge: The Honorable Kim R. Gibson
                      ____________________________________

                     Submitted Pursuant to Rule 21, Fed. R. App. P.
                                   October 25, 2007

  Before:     BARRY, CHAGARES AND VAN ANTWERPEN, CIRCUIT JUDGES.

                            (Opinion filed November 9, 2007)
                                        _________

                                        OPINION
                                        _________

PER CURIAM

       Kevin Flood was tried before a jury in May 2007 on charges of conspiracy to

possess and distribute marijuana, possession with intent to distribute marijuana, and

possession of a firearm by a felon. Before the trial, Flood filed a motion in which he

moved for the audiotapes to be tested to confirm their authenticity. The district court

found that Flood had missed the deadline for filing pretrial motions and that he had

otherwise not raised any basis for requiring such testing. The court denied the motion.
Months later, after the trial, the jury convicted him on all charges.

       Flood has now filed a petition for writ of mandamus and for other relief, alleging a

conspiracy to tamper with, delete or destroy certain audio surveillance tapes made by

police in their investigation of him on the drug charges. He requests that certain officials

named by him be ordered to investigate and file appropriate criminal charges against

those responsible. We will deny the petition.

       A writ of mandamus will only issue under extraordinary circumstances. See

Sporck v. Peil, 759 F.2d 312, 314 (3d Cir. 1985). A petitioner must establish that there is

no alternative remedy or other adequate means to obtain the desired relief, and the

petitioner must demonstrate a clear and indisputable right to the relief sought. Kerr v.

United States District Court, 426 U.S. 394, 403 (1976).

       Flood does not meet the stringent requirements for relief here. He maintains that

the audiotapes contained favorable evidence to his defense to the criminal charges. But

Flood has not demonstrated that he has no alternative remedy or other adequate means of

relief. Indeed, as he previously filed a motion challenging the tapes’ authenticity during

the course of his criminal case, the proper course would be for him to raise the issue in his

direct criminal appeal. A writ of mandamus is not a substitute for an appeal. See In re

Ford Motor Co., 110 F.3d 954, 957 (1997). Furthermore, Flood contends that he has

filed a civil action in which he has now included claims of audiotape tampering in his

supplemental complaint. There are no “extraordinary circumstances” meriting mandamus

relief here, particularly where Flood is already attempting to otherwise litigate his claims

                                              2
of tampering in a civil action.

       For these reasons, we will deny the petition for mandamus relief. The “Motion

Requesting Rule 48 Masters” and his motion seeking appointment of counsel are denied.




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