                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 12-4146
                                     ______________

                            UNITED STATES OF AMERICA

                                              v.

                                   RAPHAEL MUSTO,
                                               Appellant
                                    ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                        (D.C. No. 3-10-cr-00338-001)
                       District Judge: A. Richard Caputo
                                ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 26, 2013
                                   ______________

           Before: CHAGARES, VANASKIE, and SHWARTZ, Circuit Judges

                                (Filed: September 30, 2013)
                                      ______________

                                        OPINION
                                     ______________

SHWARTZ, Circuit Judge

       Raphael Musto, who suffers from several ailments including liver cirrhosis,

appeals from the District Court’s order denying his motion for an indefinite continuance

of his criminal trial. We will dismiss the appeal for lack of appellate jurisdiction.
                                              I.

       As we write principally for the benefit of the parties, we recite only the essential

facts and procedural history. On November 23, 2010, a grand jury returned a six-count

indictment charging Musto with numerous public corruption offenses. On June 23, 2011,

September 14, 2011, November 28, 2011, May 31, 2012, and August 31, 2012, the

District Court granted a series of unopposed motions for continuance of the trial in light

of Musto’s physical condition.

       A number of expert reports were prepared concerning Musto’s health. On

November 10, 2011, Musto’s expert, Dr. Cataldo Doria, issued a report opining that due

to Musto’s cirrhosis and other health conditions, he could face serious consequences if

forced to participate in a trial. On April 12, 2012, Dr. Doria issued an updated report

indicating that Musto had undergone a successful repair of an aortic aneurysm but that

any complications in his fragile health condition could be fatal. On April 23, 2012, the

United States asked the District Court to appoint its own expert and hold a hearing to

determine a course of action in the case. On June 15, 2012, a court-appointed expert, Dr.

K. Rajender Reddy, issued a report opining that Musto had no functional disability that

would preclude him from attending trial. 1 In light of these conflicting reports, the United

States obtained its own expert, Dr. Ian Schreibman, who issued a report on August 29,

2012 opining that: (1) Musto would be able to withstand the rigors of trial on a “good

day”; (2) Musto would not be able to withstand the rigors of trial on a “bad day”; (3)
       1
           Dr. Reddy did not personally examine Musto before issuing his report.
                                              2
there was no way to predict when or how often Musto would have bad days; (4) in

general, Musto would not be able to withstand trial; and (5) in light of Musto’s general

health condition, these conclusions would remain the same even absent Musto’s liver

disease. On October 17, 2012, Dr. Doria issued an additional report containing an update

on Musto’s ailments, which included coronary artery disease, a bout of pneumonia, and

sepsis.

          On October 22, 2012, Musto filed a motion to dismiss in light of his physical

condition, or in the alternative, that trial be continued indefinitely. The District Court

denied the motion and Musto filed an appeal only as to the order denying his request for

an indefinite continuance. The District Court stayed the trial pending resolution of this

appeal.

                                               II.

          The District Court had jurisdiction over this criminal case pursuant to 18 U.S.C. §

3231. Our jurisdiction is contested, and we “necessarily exercise de novo review over an

argument alleging a lack of appellate jurisdiction.” Montanez v. Thompson, 603 F.3d

243, 248 (3d Cir. 2010).

          Under 28 U.S.C. § 1291, we “have jurisdiction of appeals from all final decisions

of the district courts of the United States.” Despite this “final decision” requirement, the

collateral order doctrine permits us to consider appeals from “a small class of rulings, not

concluding the litigation, but conclusively resolving claims of right separable from, and

collateral to, rights asserted in the action.” Will v. Hallock, 546 U.S. 345, 349 (2006)
                                               3
(internal quotation marks omitted). For the doctrine to apply, the District Court’s order

must: “[1] conclusively determine the disputed question, [2] resolve an important issue

completely separate from the merits of the action, and [3] be effectively unreviewable on

appeal from a final judgment.” Id. (internal quotation marks omitted). The Supreme

Court has repeatedly emphasized the doctrine’s “modest scope.” Id. at 350; see also

Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994); Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949). In criminal cases, the

doctrine is applied “with the utmost strictness,” Midland Asphalt Corp. v. United States,

489 U.S. 794, 799 (1989) (citation omitted), due to “the need to effectively and

efficiently conclude criminal proceedings, without piecemeal interruptions.” Gov’t of

Virgin Islands v. Rivera, 333 F.3d 143, 150 n.16 (3d Cir. 2003).

       Musto’s motion for an indefinite continuance was grounded in two constitutional

claims. First, he argued that he is physically impaired from assisting counsel in his

defense such that trial would violate the Sixth Amendment. Second, he argued that

compelling him to endure the stress of a criminal trial would present life-threatening

complications constituting cruel and unusual punishment in violation of the Eighth

Amendment.

       As to the Sixth Amendment claim concerning ability to assist counsel, the

collateral order doctrine does not apply because the District Court’s order does not

conclusively determine the disputed question and the order may effectively be reviewed

on appeal from a final judgment. Musto’s health has changed over time. While he
                                             4
predicts an inability to assist counsel in his defense, he does not cite any particular

difficulty he has already encountered in participating in his own defense. Because the

District Court is free, and evidently willing, 2 to reassess Musto’s medical needs as trial

approaches and progresses, the denial of a continuance on Sixth Amendment grounds

cannot be characterized as conclusive. Moreover, a Sixth Amendment assistance of

counsel claim is effectively reviewable post-judgment. If Musto were convicted at trial,

he would be free to seek post-conviction relief based upon a claim that the trial did not

comport with Sixth Amendment procedural protections. See Flanagan v. United States,

465 U.S. 259, 266-67 (1984) (disqualification of counsel in criminal case is not subject to

collateral order review because it “is in no danger of becoming moot upon conviction and

sentence” and concerns a “right not to be convicted in certain circumstances”). Thus, we

do not have jurisdiction under the collateral order doctrine to review Musto’s Sixth

Amendment claim.

       Though Musto raised an Eighth Amendment claim before the District Court, he

has withdrawn that claim on appeal, see Appellant’s Brief 51, presumably upon the

realization that the Eighth Amendment applies only after there has been “a formal

adjudication of guilt in accordance with due process of law.” Natale v. Camden Cnty.

Corr. Facility, 318 F.3d 575, 581 (2003) (quoting City of Revere v. Mass. Gen. Hosp.,

463 U.S. 239, 244 (1983)). Nonetheless, in seeking to satisfy the requirements of the


       2
         The District Court concluded merely that Musto “is physically competent to
stand trial at the present time.” App. 6.
                                              5
collateral order doctrine, Musto continues to rely on the potentially irreparable physical

harm that the stress of trial may cause him, independent of his ability to assist counsel in

his defense. As to this distinct harm, untethered to any specific legal basis for relief, we

cannot say that Musto’s argument was squarely raised before the District Court, let alone

“conclusively determined.” United States v. Mitchell, 652 F.3d 387, 394 (3d Cir. 2011)

(en banc). As discussed herein, Musto’s motion before the District Court relied on two

constitutional bases: Sixth Amendment assistance of counsel and Eighth Amendment

cruel and unusual punishment. The District Court ruled on those two arguments, holding

that none of the authorities Musto cited supported his position that proceeding with trial

“violates [t]he Sixth Amendment and/or the Eighth Amendment.” App. 4.

           In short, the District Court’s order did not conclusively resolve the Sixth

Amendment claim, which is also effectively reviewable post-judgment. The Eighth

Amendment claim has been abandoned and the District Court was not asked to consider,

and hence did not determine, any other legal grounds for the requested continuance.

Thus, the collateral order doctrine does not provide a basis to review this pre-judgment

order. 3


           3
         Because Musto raised his argument concerning the risk of physical harm from
the stress of trial via the prism of the Eighth Amendment, which is plainly inapplicable
before conviction, the District Court apparently concluded it was unnecessary to hold a
hearing to determine whether subjecting Musto to this risk would violate his
constitutional rights. Had Musto presented a valid constitutional basis for this claim, the
District Court may have elected to hold a hearing to probe the experts, as both parties had
requested. If “there is reasonable ground to believe that physical disability may . . .
endanger the life of a defendant” and thereby raise concerns about due process, it may be
                                                 6
                                              III.

       For the foregoing reasons, we will dismiss the appeal for lack of jurisdiction.




prudent “for the trial court to hold an evidentiary hearing as close to trial as practical” so
as to “allow cross-examination of the examining doctors and preserve a full record.”
United States v. Knohl, 379 F.2d 427, 437 (2d Cir. 1967).
                                               7
