Filed: Mar. 11, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 3-11-2008 In Re: Albert Leo Be Precedential or Non-Precedential: Non-Precedential Docket No. 08-1573 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "In Re: Albert Leo Be " (2008). 2008 Decisions. Paper 1457. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1457 This decision is brought to you for free and open access by the Opinions of
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 3-11-2008 In Re: Albert Leo Be Precedential or Non-Precedential: Non-Precedential Docket No. 08-1573 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "In Re: Albert Leo Be " (2008). 2008 Decisions. Paper 1457. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1457 This decision is brought to you for free and open access by the Opinions of t..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-11-2008
In Re: Albert Leo Be
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1573
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"In Re: Albert Leo Be " (2008). 2008 Decisions. Paper 1457.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1457
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
ELD-20-E
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1573
___________
IN RE: ALBERT LEO BERRETTINI, JR.
and MARY ANN BERRETTINI,
Petitioners
______________________
Petition for Writ of Mandamus from the
United States District Court for the
Middle District of Pennsylvania
(Related to MD/PA Criminal No. 07-cr-00422)
______________________
Submitted Under Rule 21, Fed. R. App. P.
February 29, 2008
Before: RENDELL, AMBRO and STAPLETON, Circuit Judges
(Filed: March 11, 2008)
______________
OPINION OF THE COURT
_______________
PER CURIAM
Albert Leo Berrettini Jr., and Mary Ann Berrettini, currently representing
themselves in federal court against tax-related criminal charges, have filed a petition for a
writ of mandamus. The Berrittinis have not clearly identified the relief they seek. As
best we can tell, they want this Court to direct the District Court to adjudicate the
government’s motion for a psychiatric and/or psychological examination, to reconsider its
rejection of certain “Demands” and “Affidavits,” and to dismiss the charges for lack of
jurisdiction. For the reasons set forth below, we conclude that mandamus relief is not
warranted.
Issuance of a writ of mandamus is an appropriate remedy in extraordinary
circumstances only. See Sporck v. Peil,
759 F.2d 312, 314 (3d Cir. 1985). Its main
purpose is “to confine an inferior court to a lawful exercise of its prescribed jurisdiction
or to compel it to exercise its authority when it is its duty to do so.” Roche v. Evaporated
Milk Ass’n,
319 U.S. 21, 26 (1943). To justify the Court’s use of this remedy, a
petitioner must demonstrate that he has a “clear and indisputable” right to the writ. Kerr
v. United States District Court,
426 U.S. 394, 403 (1976); DeMasi v. Weiss,
669 F.2d
114, 117 (3d Cir. 1982). A writ is not a substitute for an appeal; only if a direct appeal is
unavailable will the court determine whether a writ of mandamus will issue. See In Re
Ford Motor Co.,
110 F.3d 954, 957 (3d Cir. 1997).
The Berrettinis have not shown a “clear and indisputable right” to the writ. To the
extent that the Berrettinis seek an order directing the District Court to adjudicate the
government’s pending motion for a psychiatric and/or psychological examination, there
clearly has not been a delay that rises to the level of a denial of due process. See Madden
v. Myers,
102 F.3d 74, 79 (3rd Cir. 1996). Although an appellate court may issue a writ
of mandamus on the ground that undue delay is tantamount to a failure to exercise
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jurisdiction,
id., the manner in which a court controls its docket is discretionary. See In re
Fine Paper Antitrust Litigation,
685 F.2d 810, 817 (3d Cir. 1982). Here, the government
filed its motion on February 14, 2008, the Berrettinis submitted a brief in opposition on
February 25, 2008, and a reply brief is due by March 13, 2008. These circumstances do
not constitute undue delay.
The Berrettinis also emphasize that several of their “Demands” and “Affidavits”
were deemed withdrawn for failure to file supporting briefs and, alternatively, denied on
the merits by the District Court. Importantly, however, the Berrettinis have not
demonstrated that review of the District Court’s determinations will be unavailable on
direct appeal.
Finally, the Berrettinis appear to seek an order directing the District Court to
dismiss the charges for lack of jurisdiction, or to at least require the government to show
cause why the case should not be dismissed for lack of subject matter jurisdiction.
“When a mandamus petitioner challenges a district court’s subject-matter jurisdiction . . .
our issuance of the writ has traditionally been reserved to ‘restrain[ing] jurisdictional
excesses, particularly when a lower court has acted without authority to do so.’” In re
Briscoe,
448 F.3d 201, 216 (3d Cir. 2006) (quoting In re Sch. Asbestos Litig.,
921 F.2d
1310, 1314 (3d Cir. 1990) (citation omitted)). Thus, mandamus relief is justified “only if
the petitioners show that the district court’s lack of subject matter jurisdiction is ‘clear
and indisputable’ and that no other adequate means exists to attain relief.” In re Sch.
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Asbestos
Litig., 921 F.2d at 1314. The Berrettinis contend that the District Court lacks
federal jurisdiction over them because they are not “federal ‘taxpayers’ as defined in the
Federal Tax Code.” This type of “hackneyed tax protester refrain[]” is patently incorrect.
United States v. Chisum,
502 F.3d 1237, 1243 (10 th Cir. 2007).
For the foregoing reasons, we will deny the mandamus petition.
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