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United States v. Bilsky

United States Court of Appeals for the Sixth Circuit

June 12, 1981, Argued ; November 24, 1981, Decided

Nos. 81-5148, 81-5149

Opinion

 [*614]  The principal issue in this case is whether the district court's denial of a motion to dismiss the indictment for violation of the Speedy Trial Act is appealable prior to trial. We conclude that such a denial fails to fall within the "collateral order" exception pronounced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949), and is, therefore, not an appealable decision. Accordingly, we dismiss the appeal for lack of jurisdiction; we also reject the claim for mandamus relief.

On May 13, 1980, a federal grand jury in the Western District of Tennessee returned an indictment against the appellants, Robert Clyde Lovell, Joyce Elaine Lovell, Sidney Marvin Bilsky, and three other defendants, charging [**2]  them with conspiracy and transportation of stolen merchandise in excess of $ 5,000.00 in interstate commerce. See 18 U.S.C. Section 2314. A superseding indictment was returned on September 22, 1980, charging appellants with conspiracy and receiving stolen merchandise in excess of $ 5,000 in interstate commerce. See 18 U.S.C. Section 2315. The different charges arose from the same circumstances.

On November 18, 1980, the original indictment was dismissed on the government's motion and trial commenced on the September indictment. That trial was terminated and a mistrial declared on November 28, 1980. A written order declaring a mistrial was entered by the district court on December 4, 1980. A motion for a judgment of acquittal was filed on behalf of all defendants on December 5, 1980; the district court denied the motion on December 9, 1980.

On January 15, 1981, the district court denied the appellants' motions to dismiss the indictment for failure to grant a speedy trial. In their motion the Lovells had argued that more than 180 days had elapsed since the original indictment was returned on May 13, 1981, and that the date of the filing of the superseding indictment related back [**3]  to the date of the filing of the original indictment under 18 U.S.C. Section 3161(d)(1).

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664 F.2d 613 *; 1981 U.S. App. LEXIS 15738 **

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SIDNEY MARVIN BILSKY, ROBERT CLYDE LOVELL, JOYCE ELAINE LOVELL, Defendants-Appellants, (81-5148), SIDNEY MARVIN BILSKY, ROBERT CLYDE LOVELL AND JOYCE ELAINE LOVELL, Petitioners, v. UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE at MEMPHIS, (81-5149), Respondent

Prior History:  [**1]  ON APPEAL from the United States District Court for the Western District of Tennessee.

CORE TERMS

indictment, speedy trial, district court, retrial, time limit, mandamus, suspension, mistrial, jeopardy, double, denial of a motion, motion to dismiss, judicial council, collateral, speedy, pretrial, appellate review, deny a motion, sanctions, appeals, interlocutory appeal, original indictment, criminal case, superseding, timetable, grounds, rights

Criminal Law & Procedure, Appeals, Right to Appeal, Defendants, Appellate Jurisdiction, Final Judgment Rule, Interlocutory Appeals, Preliminary Proceedings, Pretrial Motions & Procedures, Dismissal, Reviewability, General Overview, Civil Procedure, Collateral Order Doctrine, Interlocutory Orders, Extraordinary Writs, Writs, Common Law Writs, Mandamus, Speedy Trial