United States District Court, D. Arizona
Rosemary Marquez, United States District Judge
a status conference on September 11, 2019, the Court took
under advisement the matter of whether the Court retains
jurisdiction over Defendant Mustaf Adan Arale’s case
while the Government’s interlocutory appeal (Doc. 129)
of the Court’s suppression order (Doc. 124) is pending
before the Ninth Circuit Court of Appeals. For the following
reasons, the Court concludes that it lacks jurisdiction and
will stay Defendant Arale’s case pending resolution of
the appeal of the suppression order. The Court will also
require the parties to brief the issue of whether the stay
should also apply to Defendant Zeinab Abdirahman Mohamed.
1, 2019, Magistrate Judge Bruce G. MacDonald issued a Report
and Recommendation (“R&R”) (Doc. 111), which
recommended denying Defendant Arale’s Motion to
Suppress Statements (Doc. 62). Defendant Arale objected to
the R&R (Doc. 113), and the Government responded (Doc.
119). On July 5, 2019, the Court ordered, under seal, the
suppression of Defendant Arale’s statements to
government officials during an interview at his home on May
24, 2017 (Doc. 124). On August 2, 2019, the Government filed
a Notice of Appeal from the Court’s order granting
Defendant Arale’s Motion to Suppress. (Doc. 129.) The
Government is now waiting for the Solicitor General to decide
whether the appeal can be litigated. (Doc. 134.) Although the
Government did not indicate a timeframe for the Solicitor
General’s decision, the Ninth Circuit briefing schedule
sets a November 1, 2019 deadline for Appellant’s
opening brief. (Doc. 133.) Trial as to both defendants has
been continued to November 12, 2019, but this is not a firm
trial date. (Doc. 140.)
Mohamed filed a motion to sever on April 2, 2019. (Doc. 101.)
The Government agreed that severance was necessary. (Doc.
110.) On June 4, 2019, the Court granted a severance of
Defendant Mohamed’s trial. (Doc. 121.) Defendant
Mohamed did not move to suppress any statements and therefore
the suppression order (Doc. 124) and subsequent appeal (Doc.
129) apply only to Defendant Arale.
initial matter, the Court notes that the Government may file
an interlocutory appeal of an order suppressing evidence. 18
U.S.C. § 3731; United States v. Moskowitz, 702
F.3d 731, 733 (2d Cir. 2012); see also United States v.
Eccles, 850 F.2d 1357, 1362 (9th Cir. 1988)
(“[I]nterlocutory review of a district court’s
order suppressing evidence is made necessary by the double
jeopardy clause.”). The general rule is that the filing
of a notice of appeal “confers jurisdiction on the
court of appeals and divests the district court of its
control over those aspects of the case involved in the
appeal.” Griggs v. Provident Consumer Disc.
Co., 459 U.S. 56, 58 (1982). “Actions taken [after
appeal] by the district court are taken without
jurisdiction.” New York State Nat. Org. for Women
v. Terry, 886 F.2d 1339, 1349 (2d Cir. 1989). However, a
district court retains jurisdiction to dismiss an indictment
while a § 3731 appeal from a pretrial order is pending.
United States v. Gatto, 763 F.2d 1040, 1049 (9th
have ‘broad discretion to stay cases, provided that the
length of stay is reasonable and accounts for the competing
interests of the parties.’” Thakkar v. United
States, 389 F.Supp.3d 160, 171 (D. Mass. 2019); see
also Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). An
interlocutory appeal pursuant to § 3731 may have a
“disruptive effect on the criminal trial process,
therefore harboring a potential for abuse.”
Gatto, 763 F.2d at 1050. The government’s
right to appeal must therefore be balanced with the
defendant’s fundamental rights to proceed to trial and
to be free from confinement before trial. Id.;
United States v. Salerno, 481 U.S. 739, 750 (1987).
interlocutory appeal by the Government ordinarily is a valid
reason that justifies delay.” United States v. Loud
Hawk, 474 U.S. 302, 315 (1986); United States v.
Herman, 576 F.2d 1139, 1146 (5th Cir. 1978). But
“delays in bringing the case to trial caused by the
Government’s interlocutory appeal may be weighed in
determining whether a defendant has suffered a violation of
his rights to a speedy trial.” Loud Hawk, 474
U.S. at 316 (1986). “In assessing the purpose and
reasonableness of such an appeal, courts may consider . . .
the strength of the Government’s position on the
appealed issue, the importance of the issue in the posture of
the case, and-in some cases-the seriousness of the
crime.” Id. “The charged offense must be
serious to justify keeping a person presumed innocent in jail
a long time before trial pending appeal.”
Herman, 576 F.2d at 1146 (where defendant was
charged with murder and robbery, an additional fifteen months
of incarceration pending the government’s interlocutory
appeal was justified).
Court finds that it is divested of jurisdiction as to
Defendant Arale while the Government’s interlocutory
appeal of the suppression order is pending. See
Griggs, 459 U.S. at 58. Therefore, the Court will stay
Defendant Arale’s case pending resolution of the
appeal. Pending further briefing, the stay applies only to
Defendant Arale because the trials have been severed and only
Defendant Arale’s case is currently affected by the
IT IS ORDERED that this case is stayed as to
Defendant Mustaf Arale pending resolution of the
Government’s appeal to the Ninth Circuit (Doc. 129) of
the Court’s suppression order (Doc. 124).
IS FURTHER ORDERED setting a status conference as to
Defendant Zeinab Mohamed on October 16, 2019 at 10:15
a.m., before the Honorable Rosemary Márquez,
in Courtroom 5A of the United States District Court for the
District of Arizona, Evo A. DeConcini U.S. Courthouse, 405 W.
Congress Street, Tucson, AZ 85701.
IS FURTHER ORDERED that on or before October
9, 2019, both parties shall submit briefs regarding