                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0305n.06
                              Filed: May 3, 2006

                                             No. 03-2562

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )
v.                                                 )    ON APPEAL FROM THE UNITED
                                                   )    STATES DISTRICT COURT FOR THE
JOHN DOE,                                          )    EASTERN DISTRICT OF MICHIGAN
                                                   )
       Defendant-Appellant.                        )




       Before: DAUGHTREY and SUTTON, Circuit Judges; FORESTER, District Judge.*


       PER CURIAM. This is an interlocutory appeal from a district court’s order denying the

motion of a defendant, identified as John Doe, to strike the government’s notice of intention to seek

the death penalty on the ground that the government did not file the notice within “a reasonable time

before the trial,” as required by 18 U.S.C. § 3593(a). The district court denied the motion on the

ground that the date set for trial was merely a “‘control’ date,” not a “fixed trial date,” and that the

government thus did not violate the statutory directive. D. Ct. Op. at 10. Because the proposed trial

date, whether a “fixed” date or a “control” date, had come and gone by the time Doe filed his

motion, his claim was moot in one respect and not ripe in another. Accordingly, we vacate the



       *
       The Honorable Karl S. Forester, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 03-2562
USA v Doe

district court’s order and remand the case to the district court to dismiss the motion for lack of

jurisdiction.


                                                 I.


        In July 2001, John Doe and 13 other individuals were the subjects of a six-count federal

indictment. Doe was indicted on four of the counts: conspiracy to possess with intent to distribute

controlled substances; engaging in a continuing criminal enterprise; intentional killing; and aiding

and abetting an intentional killing. Doe was arraigned on July 23, 2001, and the district court

initially scheduled the trial for February 12, 2002. On February 11, 2002, the district court moved

the trial date to July 30, 2002. The district court subsequently entered a series of orders further

postponing the trial, including an order scheduling a pretrial conference on November 5, 2002, and

eventually an order tentatively scheduling trial for March 4, 2003.


        Between June 7 and September 27, 2002, Doe engaged in plea negotiations with the

government. On October 7, 2002, Doe’s attorney met with attorneys from the Capital Crimes

Section of the United States Department of Justice in Washington, D.C., in an effort to dissuade the

Attorney General from seeking the death penalty. His efforts were not successful, and on

February 6, 2003, 26 days before the tentative March 4 trial date, the United States Attorney filed

an official notice of intent to seek the death penalty (the “death notice”) against 3 of the 13

co-defendants, including John Doe.




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USA v Doe

       The next day, the district court scheduled a pretrial conference with the three capital

defendants and the government for February 21, 2003. The point at issue was severance, because

the district court was unwilling to try all of the co-defendants at a single trial, and the government

thus far had failed to obtain stipulations as to “how to parse out the case.” JA 378. Scheduling

difficulties, however, precluded the February 21 conference from going forward, and the court

postponed it until March 17. On March 17, counsel for the three capital defendants, including

defendant Doe, indicated that they would need between 18 and 24 months to prepare for trial.


       In the meantime, on March 10, 2003, nearly a week after the tentative March 4 trial date had

passed, Doe filed a motion to strike the death notice, claiming that the 26-day period between the

filing of the death notice and March 4 was unreasonable. The district court did not hear arguments

on the motion to strike the death notice until October 3, 2003, during which Doe’s counsel conceded

that he “did not expect that if the government filed a death penalty notice that we would be going

to trial on March 4th.” JA 363. The district court ultimately denied the motion on the ground that

the March 4 trial date was a “‘control’ date,” not a “fixed trial date,” and accordingly that the

government had not violated the statutory directive. D. Ct. Op. at 10.


                                                 II.


       Before we may address the merits of the district court’s order, we must ask ourselves

whether we have jurisdiction to resolve this dispute. There is some question whether we may review

an interlocutory order of this type and an even more basic question whether the dispute suffers from



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USA v Doe

mootness and ripeness problems. A matter becomes moot, and a court is “depriv[ed] [ ] of

jurisdiction” over it, ACLU of Ohio, Inc. v. Taft, 385 F.3d 641, 646 (6th Cir. 2004), when the issues

presented “are no longer live or the parties lack a legally cognizable interest in the outcome” of the

dispute, County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (internal quotation marks

omitted); see also Chirco v. Gateway Oaks, L.L.C., 384 F.3d 307, 309 (6th Cir. 2004). The ripeness

doctrine likewise “prevent[s] the courts, through premature adjudication, from entangling

themselves in abstract disagreements,” Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568,

580 (1985), and “dictates that courts should decide only existing, substantial controversies, not

hypothetical questions or possibilities,” City Commc’ns, Inc. v. City of Detroit, 888 F.2d 1081, 1089

(6th Cir. 1989). Ripeness thus “becomes an issue when a case is anchored in future events that may

not occur as anticipated, or at all.” Id.


        In one sense, Doe’s motion suffered from a mootness problem from the day it was filed. To

the extent he premised his motion on the ground that the 26 days between the government’s filing

of a death notice (February 26, 2003) and the proposed trial date (March 4, 2003) did not provide

“reasonable” notice under the statute, that particular problem had vanished before he filed the

motion. The March 4 trial date had come and gone six days before Doe filed the motion. To the

extent Doe premised his motion on the ground that he had not received “reasonable” notice that the

government would seek the death penalty before some other trial date, that motion was premature.

When Doe filed the motion to strike on March 10, 2003, not only had the proposed March 4 trial

date passed but the court had not set another trial date. Before the March 10 filing of the motion,



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USA v Doe

the trial court had set a “pretrial” conference for March 17, 2003, when presumably a trial date

would be discussed. Indeed, to our knowledge, the only material trial date in the case was March

4, and of course that date had come and gone by the time the motion was filed. In the end, the claim

that 26 days (between February 6, 2003, and March 4, 2003) was insufficient notice to prepare for

a capital case was moot at the time the motion to strike was filed, and the apparent claim that some

other number of days (between February 6, 2003, and a date to be determined) was insufficient

notice to prepare for a capital case was not ripe at the time the motion was filed. The one

construction of the claim being moot, the other being unripe, neither the district court nor we have

jurisdiction to resolve this dispute.


                                                III.


        For these reasons, the district court’s order is vacated and the motion is remanded with

instructions to dismiss it for lack of jurisdiction. See McPherson v. Mich. High Sch. Athletic Ass’n,

119 F.3d 453, 458 (6th Cir.1997); United States v. Westmoreland, 974 F.2d 736, 738 (6th Cir. 1992).




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