7 F.

3d 1058

UNITED STATES of America, Appellee,

v.
Kelly MALA, a/k/a Kelley Mala, Defendant, Appellant.
No. 91-2229.

United States Court of Appeals,

First Circuit.
Heard Sept. 7, 1993.
Decided Oct. 27, 1993.

Ronald Cohen, by Appointment of the Court, for appellant.

Jorge E. Vega-Pacheco, Asst. U.S. Atty., with whom Charles E.
Fitzwilliam, U.S. Atty., was on brief, for U.S.
Before BREYER, Chief Judge, SELYA and STAHL, Circuit Judges.
SELYA, Circuit Judge.

Defendant-appellant Kelley Mala, a resident of the U.S. Virgin Islands, appeals

his conviction on various drug-related charges. We affirm, without prejudice,
however, to Mala's right to explore certain contentions in a more appropriate
forum.

I.
Background
2

On January 4, 1989, a federal grand jury in Puerto Rico indicted Mala. The
grand jury twice revised the bill, a process that culminated in a five-count
superseding indictment against a total of fourteen defendants. Three counts
targeted appellant, charging him with conspiracy to import cocaine into the
United States, 21 U.S.C. 963 (1988), conspiracy to possess cocaine with
intent to distribute it, 21 U.S.C. 846 (1988), and using a telephone to facilitate
importation of cocaine, 21 U.S.C. 843(b) (1988).

Most of the named defendants were promptly arrested and tried. Some were
convicted,1 some were not. Withal, the government exhibited seeming
indifference toward appellant. It was not until February 22, 1991--some 25
months after the original indictment surfaced--that government agents arrested
him in St. Thomas, took him to Puerto Rico, and arraigned him on March 8,
1991.

From that point forward, matters progressed at a more celeritous clip. On April
22, 1991, Mala filed a motion to dismiss the indictment on speedy trial grounds,
or in the alternative, to suppress certain evidence. The district court denied the
motion on May 17. Four days later, Mala filed a notice of appeal contesting the
denial of his prayer for suppression. Undeterred by the appeal, the district court
ordered the trial to commence on May 23, 1991, as previously scheduled. On
May 30, a jury found appellant guilty on all three counts.

Two potentially significant events occurred between the date of the verdict and
the imposition of sentence. Some six weeks after the trial ended, this court
dismissed the interlocutory appeal for want of jurisdiction after determining
that the order refusing to suppress evidence was not immediately appealable. In
roughly the same time frame, appellant filed a pro se motion alleging, among
other things, that he had been victimized by ineffective counsel. The district
judge denied this initiative on procedural grounds, ruling that such a motion
could not be brought in advance of sentencing.

On November 8, 1991, the court sentenced appellant to a lengthy prison term

and imposed other penalties. This appeal followed. In it, appellant is
represented by successor counsel.

II.
Analysis
A.
The Trial Court's Jurisdiction
7

Appellant seeks to persuade us that his conviction is a nullity because the

district court lacked authority over the case at time of trial. The linchpin of this
asseveration is appellant's insistence that a case cannot be pending in two
courts at the same time; hence, the pendency of his appeal from the refusal to
suppress had the double-barrelled effect of transferring the case to the appellate
court and stripping the trial court of jurisdiction. We are not convinced.

Ordinarily, docketing a notice of appeal ousts a district court of jurisdiction

over the underlying case. See, e.g., Coastal Corp. v. Texas Eastern Corp., 869
F.2d 817, 819 (5th Cir.1989). There is, however, an important difference
between interlocutory appeals not specifically authorized by statute and other,
less problematic appeals. While an appeal from either a final order or an
interlocutory order made immediately appealable by statute divests a district
court of authority to proceed with respect to any matter touching upon, or
involved in, the appeal, see 9 James W. Moore et al., Moore's Federal Practice
p 203.11, at 3-45 (2d ed. 1993), an interlocutory appeal that is brought without
any colorable jurisdictional basis does not deprive the district court of
jurisdiction over the underlying case. See United States v. Ferris, 751 F.2d 436,
440 (1st Cir.1984); Hodgson v. Mahoney, 460 F.2d 326, 328 (1st Cir.1972); see
also 9 Moore's Federal Practice, supra, p 203.11, at 3-52. Thus, when a litigant
purposes to appeal a plainly unappealable order, the trial court may treat the
appeal for what it is--a sham--and continue to exercise jurisdiction over the
case. Were the rule otherwise, a litigant bent on vexation could temporarily
divest a trial court of jurisdiction at whim.

This case aptly illustrates the point. Two days before his trial was scheduled to
start, appellant "appealed" an interlocutory order that had been entered a few
days earlier. He did not identify then, nor has he identified now, any
jurisdictional hook on which his appeal arguably might hang. A transparently
invalid appeal constitutes no appeal at all. Because Mala's appeal was of this
sorry stripe, the district court retained the authority to try the case.

B.
The Right to a Speedy Trial
10

Appellant contends that the charges against him should have been dismissed
because of unpardonable delays in the proceedings. This contention must rise or
fall on appellant's claim that too long a period of time intervened between his
indictment and his arrest.2 This claim, in turn, implicates the Sixth
Amendment, for the Speedy Trial Act, 18 U.S.C. 3161-3174 (1988), is not
applicable to periods of delay antedating a defendant's arrest. See United States
v. Zandi, 769 F.2d 229, 233 (4th Cir.1985); United States v. Haiges, 688 F.2d
1273, 1274 (9th Cir.1982).

11

The Sixth Amendment provides in pertinent part that "in all criminal
prosecutions, the accused shall enjoy the right to a speedy ... trial." U.S. Const.,
Amend. VI. This right attaches upon indictment or arrest, whichever first
occurs. See United States v. MacDonald, 456 U.S. 1, 6-7, 102 S.Ct. 1497, 1500-

02, 71 L.Ed.2d 696 (1981); Dillingham v. United States, 423 U.S. 64, 64-65, 96
S.Ct. 303, 303-04, 46 L.Ed.2d 205 (1975) (per curiam). The constitutional
assurance serves many laudable purposes, chief of which is to limit the
possibility that memories will fade, witnesses disappear, and needless delay
impair an accused's ability to defend himself. See United States v. Ewell, 383
U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966).
12

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the
Supreme Court established a four-part balancing test to be used in determining
whether a defendant's constitutional right to a speedy trial has been abridged.
These four factors are (1) the length of the delay; (2) the reasons for the delay;
(3) the defendant's posture vis-a-vis the delay, especially in respect to assertions
of the speedy trial right; and (4) the prejudice stemming from the delay. Id. at
530, 92 S.Ct. at 2192. These factors cannot be plugged into a formula that
operates with scientific precision. Rather, they must be considered on a caseby-case basis "together with such other circumstances as may be relevant." Id.

13

Attempting to apply the Barker test in the circumstances at bar frustrates

meaningful appellate review. The devoir of persuasion rests with the appellant
to show error in the ruling below. Although he filed a motion to dismiss the
indictment on speedy trial grounds, he did not accompany it with affidavits or
other materials of evidentiary quality. What is more, he did not request an
evidentiary hearing. In the end, the district court denied the motion without
holding a hearing and without making specific findings. The briefs on appeal
evince that the facts relevant to the second, third, and fourth furculae of the
Barker test are hotly disputed. We have no reliable way of resolving these
factual disputes in the rarified atmosphere of an appellate bench. It follows
inexorably that appellant cannot carry his burden of demonstrating error in the
ruling below: without better factual insights, we can neither shrug off the
possible existence of a scenario completely supportive of the district court's
ruling nor measure the relative probabilities as among competing scenarios.
Consequently, Mala's assignment of error cannot prevail.

14

To illustrate our dilemma, it might well be, as the government suggests, that
appellant eluded arrest; or, knowing about the indictment, failed to assert his
speedy trial right for a protracted period of time; or, having had the good
fortune to observe a dress rehearsal of the government's case, suffered no
cognizable prejudice through the delay. If an evidentiary hearing shows any
such scenario to be true--and we do not suggest that this will (or will not) prove
to be the case--the facts might well defeat appellant's speedy trial claim,
notwithstanding the extremely long period of pre-arraignment delay.3 See, e.g.,
Doggett v. United States, --- U.S. ----, ----, 112 S.Ct. 2686, 2691, 120 L.Ed.2d

520 (1992); United States v. Brock, 782 F.2d 1442, 1447 (7th Cir.1986). On
this inscrutable record, we simply cannot tell.
15

Nor is it unbefitting to decide the point based on a burden-of-proof rule where,

as here, appellant can fairly be held accountable for the opacity of the record.
Under federal motion practice, no automatic entitlement to an evidentiary
hearing exists. See Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1120 (1st
Cir.1989) (explaining that pretrial motions "do not usually culminate in
evidentiary hearings"). Thus, a litigant who believes that evidence should be
taken in order to put a motion into proper perspective must, at the very least,
call the need for a hearing to the court's attention and ask that a hearing be
convened. A party who fails to meet this precondition cannot then complain
that the court did not hold a hearing that it was never asked to hold. See United
States v. Tardiff, 969 F.2d 1283, 1286 (1st Cir.1992); Teamsters, Etc., Local
No. 59 v. Superline Transp. Co., 953 F.2d 17, 20 n. 4 (1st Cir.1992). District
judges are not expected to be mind readers.

16

To sum up, "[d]ue process does not entitle the defendant to an evidentiary
hearing where the defendant has failed to request one." Tardiff, 969 F.2d at
1286; accord United States v. Rigby, 896 F.2d 392, 395 (9th Cir.1990).
Because an evidentiary hearing was neither sought nor convened in this
instance, the assignment of error premised on the defendant's constitutional
right to a speedy trial succumbs for want of satisfactory proof.4

C.
Ineffective Assistance
17

The Sixth Amendment also provides that persons accused of crimes shall
receive the benefit of counsel for their defense. See U.S. Const., Amend. VI.
Appellant maintains that he was denied this safeguard because his trial counsel
performed below any acceptable standard of proficiency. While this suggestion
is not implausible on its face, we do not think it is ripe for our consideration.
We explain briefly.

18

We have held with a regularity bordering on the monotonous that fact-specific

claims of ineffective assistance cannot make their debut on direct review of
criminal convictions, but, rather, must originally be presented to, and acted
upon by, the trial court.5 See, e.g., United States v. McGill, 952 F.2d 16, 19 (1st
Cir.1991); United States v. Natanel, 938 F.2d 302, 309 (1st Cir.1991), cert.
denied, --- U.S. ----, 112 S.Ct. 986, 117 L.Ed.2d 148 (1992); United States v.
Hunnewell, 891 F.2d 955, 956 (1st Cir.1989); United States v. Costa, 890 F.2d

480, 482-83 (1st Cir.1989); United States v. Hoyos-Medina, 878 F.2d 21, 22
(1st Cir.1989); United States v. Carter, 815 F.2d 827, 829 (1st Cir.1987);
United States v. Kobrosky, 711 F.2d 449, 457 (1st Cir.1983). The rule has a
prudential aspect. Since claims of ineffective assistance involve a binary
analysis--the defendant must show, first, that counsel's performance was
constitutionally deficient and, second, that the deficient performance prejudiced
the defense, see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
2064, 80 L.Ed.2d 674 (1984)--such claims typically require the resolution of
factual issues that cannot efficaciously be addressed in the first instance by an
appellate tribunal. See Costa, 890 F.2d at 483; Hoyos-Medina, 878 F.2d at 22.
In addition, the trial judge, by reason of his familiarity with the case, is usually
in the best position to assess both the quality of the legal representation
afforded to the defendant in the district court and the impact of any shortfall in
that representation. Under ideal circumstances, the court of appeals should have
the benefit of this evaluation; elsewise, the court, in effect, may be playing
blindman's buff.
19

To be sure, we have occasionally undertaken review of ineffective assistance

claims on direct appeal, even without the advantage of the district court's views.
See, e.g., Natanel, 938 F.2d at 309. But we travel this route only when the
critical facts are not in dispute and the record is sufficiently developed to allow
reasoned consideration of the claim. See id.

20

Although appellant invokes the exception on the theory that any lawyer worth
his salt would have requested an evidentiary hearing, we think this case falls
well within the compass of the usual rule. Even if we assume arguendo that
trial counsel's performance was constitutionally deficient, appellant's thesis
runs afoul of the second prong of the Strickland test. Under that prong, a
criminal defendant must "show that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have
been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. On the sparse
record presently compiled, we cannot say whether, had the speedy trial claim
been litigated fully, it likely would (or would not) have led to a dismissal of the
indictment. See supra Part II(B). Thus, because the record does not furnish
proper illumination to enable us to assess probable outcomes, the issue of
ineffective assistance is prematurely before us.

21

When faced with similar situations in comparable cases, we have routinely

dismissed the relevant portion of the appeal without prejudice to the defendant's
right to litigate his ineffective assistance claim through the medium of an
application for post-conviction relief. See, e.g., McGill, 952 F.2d at 19 n. 5
(dismissing assignment of error without prejudice to the filing of a petition in

the district court under 28 U.S.C. 2255); Hunnewell, 891 F.2d at 956 n. 1
(same). We follow this sound practice today--but with an added wrinkle.
22

Three things coalesce here: (1) appellant has shown a fair likelihood of success
on the constitutional claim,6 (2) that claim is factually complex and legally
intricate, and (3) the facts are largely undeveloped and appellant (who is both
incarcerated and indigent) is severely hampered in his ability to investigate
them. This seems, therefore, to be the rare section 2255 case in which the
appointment of counsel is warranted. See 18 U.S.C. 3006A(a)(2)(B) (1993
Supp.) (stipulating that, if "the interests of justice so require, representation
may be provided [under the Criminal Justice Act] for any financially eligible
person who ... is seeking relief under section ... 2255 of title 28"); see also
Battle v. Armontrout, 902 F.2d 701, 702 (8th Cir.1990) (holding that the
district court abused its discretion in failing to appoint counsel for habeas
corpus petitioner); Richardson v. Miller, 721 F.Supp. 1087 (W.D.Mo.1989)
(finding, on particular facts, that the interests of justice dictated appointment of
counsel in a 2255 case). We thus direct the district court, if appellant petitions
for section 2255 relief and demonstrates continued financial eligibility, to
appoint counsel for him under 18 U.S.C. 3006A(a)(2)(B).7

III.
Conclusion
23

We need go no further. We affirm the judgment below, without prejudice,

however, to appellant's right to raise his claim of ineffective assistance in a
proceeding brought pursuant to 28 U.S.C. 2255. As stipulated herein, the
district court shall, subject to the strictures of the Criminal Justice Act, appoint
counsel for appellant should such a proceeding eventuate.

24

It is so ordered.

We affirmed the convictions. See United States v. Valencia Lucena, 925 F.2d
506 (1st Cir.1991). Although the facts surrounding appellant's alleged crimes
are, for the most part, unimportant to the disposition of this appeal, the factual
predicate of his case is substantially the same as that undergirding the other
defendants' convictions. Accordingly, we refer the reader who thirsts for
additional detail to our earlier opinion. See id. at 509-10, 512-13

Appellant also asserts that the 75-day delay between March 8 and May 23
violated the statutory requirement that trial commence within 70 days following

arraignment. See 18 U.S.C. 3161(c)(1) (1988). This assertion need not detain
us. Delay "resulting from any pretrial motion, from the filing of the motion
through the conclusion of the hearing on, or other prompt disposition of, such
motion," is excludable for purposes of determining compliance vel non with the
statutory mandate. Id. at 3161(h)(1)(F). Since appellant filed several pretrial
motions, including the April 22 motion (which was not disposed of until May
17, see supra Part I), the thrust of his Speedy Trial Act claim misses the mark
3

Although a 25-month period of delay is "presumptively prejudicial," Barker,

407 U.S. at 530, 92 S.Ct. at 2192, it is nevertheless essential to inquire into the
remaining components of the test. The length of the delay is merely "a
triggering mechanism," id., and courts frequently have found presumptively
prejudicial periods of delay to be fully justified after examining the complete
set of Barker factors. See, e.g., Robinson v. Whitley, 2 F.3d 562, 569 (5th
Cir.1993); United States v. Aquirre, 994 F.2d 1454, 1457 (9th Cir.1993);
United States v. Colombo, 852 F.2d 19, 26 (1st Cir.1988); Flowers v. Fair, 680
F.2d 261, 262 (1st Cir.1982)

Of course, trial counsel's failure properly to pursue this Sixth Amendment issue
raises effectiveness of counsel concerns that appellant may wish to explore in
future proceedings, see infra Part II(C); but those concerns do not, at this
juncture, constitute grounds for reversal on direct appeal

Mala did file a motion in the district court seeking to raise the question of
ineffective assistance. See supra p. 1060. Nonetheless, the district court
dismissed the motion on procedural grounds without reaching the question of
trial counsel's effectiveness, and appellant has not assigned error to that ruling.
For our purposes, then, the motion is a nullity

Our belief that there is some likelihood of success is not a finding, but merely
an acknowledgment that appellant has limned a colorable claim. We take no
view of the appropriate resolution of future proceedings

Appellant's present counsel advised us at oral argument that, if we found the

ineffective assistance claim unripe, appellant would promptly file a petition in
the district court under section 2255. Counsel also asked us to consider
appointing an attorney to represent Mala in such an endeavor and volunteered
so to serve. The selection of appointed counsel is a matter best left to the court
in which such counsel is to appear and, accordingly, we defer to the district
court in this regard