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United States v. Thompson

United States District Court, D. Kansas

October 3, 2019



          Daniel D. Crabtree United States District Judge

         Currently, there are five pending motions in this case: Docs. 1370, 1371, 1372, 1373, and 1374. Defendant Anthony Thompson filed all five of them. But before it can reach any of these motions, the court must determine whether it has jurisdiction to decide them.

         This threshold question arose when Mr. Thompson filed a Notice of Appeal shortly after he filed his five motions. Compare Doc. 1376 (Notice of Appeal filed August 8, 2019) with Docs. 1370-74 (defendant's pro se motions, filed August 5 and 7, 2019). By filing his Notice of Appeal, Mr. Thompson created uncertainty about this court's jurisdiction to decide his motions. See, e.g., United States v. Jackson, 950 F.2d 633, 636 (10th Cir. 1991) (“[T]he district court and the court of appeals do not exercise jurisdiction over the same action at the same time.” (citing United States v. Green, 847 F. 622, 624 (10th Cir. 1988))).

         Below, in Part I of this Order, the court analyzes this threshold question. Concluding that it has jurisdiction over Mr. Thompson's motion to reconsider, Part II addresses all five of the pending pro se motions.

         I. Does this court have jurisdiction to decide Mr. Thompson's motion to reconsider?

         The court convened a hearing on August 15, 2019, to raise the jurisdictional concern with the parties. During the hearing, the court directed the United States to file a brief addressing this issue no later than August 29, 2019. See Doc. 1380, 1381. After a short extension, Doc. 1389, the government filed its brief on September 19, 2019. See Doc. 1390. It reported the following: “The parties agree that while Federal Rule of Appellate Procedure 4(b)(1)(A) does not specifically list a motion to reconsider as tolling [the] time to file a notice of appeal, the Tenth Circuit has established that this Court retains jurisdiction to rule on Mr. Thompson's motions to reconsider.” Id. at 1 (citing Jackson, 950 F.2d at 636). Mr. Thompson's counsel[1] has confirmed that defendant agrees with the government's jurisdictional position. Doc. 1392. And after reviewing Jackson, the court reaches the same conclusion as the parties. Mr. Thompson's Notice of Appeal does not deprive the court of jurisdiction to decide his motion to reconsider.

         In United States v. Jackson, the Circuit encountered a situation like the one Mr. Thompson has created here. The Jackson defendant pleaded guilty, then moved to withdraw his plea. The court denied the motion to withdraw plea and defendant filed a motion asking the court to reconsider that decision. While that motion was pending, defendant filed a Notice of Appeal. About two months after the defendant's notice of appeal, the district court denied defendant's reconsideration motion. The defendant did not file an additional Notice of Appeal. 950 F.2d at 634.

         On appeal, the government claimed that the Circuit lacked jurisdiction to consider the merits of defendant's appeal. Id. The government argued that defendant's notice of appeal was premature. After close analysis of Fed. R. App. P. 4(b), the Circuit disagreed. It reasoned, “[A] criminal defendant should not lose his right to appeal because of an ambiguous rule.” Id. at 635. Instead, the Circuit held, “[W]hen a defendant files a motion that tolls the time for appeal, the motion holds the notice of appeal in abeyance and the notice becomes effective upon the disposition of the motion.” Id. Also, Jackson held, the defendant's motion to reconsider-if not a successive motion to reconsider-qualified as a motion that “tolled the time for appeal.” Id. (citing United States v. Dieter, 429 U.S. 6 (1976)). Finally, Jackson ruled, the defendant's “notice of appeal became effective after the district court ruled on [the defendant's] motion, ” id., thus conferring jurisdiction on the Circuit to consider his appeal.

         Given the parties' report and Jackson's holding, the court concludes that it has jurisdiction to decide Mr. Thompson's motion to reconsider.[2]

         II. Mr. Thompson's Motions

         Mr. Thompson has filed a total of five motions. The court now turns to those motions.

         First, Doc. 1370 reports that Mr. Thompson “does not believe he can handle filings [in] his direct appeal” pro se. Id. At the August 15 hearing, the court inquired of Mr. Thompson who, at the time of that hearing, was still representing himself. The defendant confirmed that he wished to revoke his decision to represent himself and so, the court appointed the Office of the Federal Public Defender to represent him. Doc. 1382. Two members of that office now have entered appearances on the defendant's behalf. Docs. 1383 & 1384. Also, Mr. Thompson's new attorneys explicitly have confirmed that they plan to enter their appearances as his appellate counsel once the proceedings before this court have concluded. Doc. 1392. So, the portion of Doc. 1370 asking for appointed counsel is moot.

         This motion also asks, “[i]n the alternative, ” for the court to stay proceedings in Mr. Thompson's case until his co-defendant, Albert Banks, is resentenced. Id. at 2. One could read this phrasing to render this request for relief moot since the court has granted the motion's primary request. But if it's not moot, the court denies this portion of the motion.

         A stay, Mr. Thompson suggests, will permit the court to determine “whether there is a disparity which may have the potential to affect the application of the factors under 18 U.S.C. 3353(a)(6)” before his “prior sentencing.” Id. at 1. Rule 2 of the Federal Rules of Criminal Procedure mandates that federal courts interpret those rules “to provide for the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and delay.” The Indictment against Mr. Thompson is more than six years old. It has been to the Circuit twice, to the Supreme Court once, and now is back before this court. Undoubtedly, more appeals will follow. The court declines to add to the case's long lifespan. The court plans to ...

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