BOYCE F. MARTIN, JR., Circuit Judge.
In December 2009, the United States charged Defendant-Appellant Rigoberto Gomez-Gomez, a Mexican citizen, in a superseding indictment with drug trafficking, money laundering, and operating a continuing criminal enterprise. Gomez-Gomez claimed to be a juvenile and moved to dismiss the indictment on the grounds that he had not been brought before the district court pursuant to the provisions of the Juvenile Delinquency Act. The district court found that he was an adult and denied the motion. Thirty days later, Gomez-Gomez moved the court: (1) to reconsider; (2) for an order to depose witnesses in Mexico; and (3) to enlarge his time to appeal the earlier denial. The district court denied all three motions. Gomez-Gomez appeals the denial of these three motions, and petitions this Court for a writ of mandamus directing the district court to authorize the proposed depositions and to reconsider its prior ruling. We lack jurisdiction to consider Gomez-Gomez's appeals from the denials of his three pre-trial motions. In addition, we deny Gomez-Gomez's petition for a writ of mandamus.
On December 3, 2009, the United States issued a superseding indictment charging Gomez-Gomez with three drug conspiracy counts, five drug distribution counts, four substantive money laundering counts, one money laundering conspiracy count, and one count of operating a continuing criminal enterprise. On December 7, Gomez-Gomez filed a motion to dismiss the indictment for lack of jurisdiction because he was a juvenile who had not been brought before the district court pursuant to the provisions of the Juvenile Delinquency Act, 18 U.S.C. § 5032. He asserted that he was born on October 1, 1992, and was therefore less than seventeen years old at the time that he allegedly committed the offenses at issue. For the purposes of proceeding under the Act, a juvenile is defined as a person who has not yet attained the age of twenty-one. See id.
The government presented the following evidence that Gomez-Gomez was an adult at the time of the offenses: (1) documents indicating that Gomez-Gomez had provided seven different dates of birth ranging from 1977 to 1985 under various names during his time in the United States; (2) two driver's licenses; (3) a dental receipt; (4) two applications for a marriage license; (5) documents appearing to be Mexican birth certificates bearing the names of Gomez-Gomez, his mother, and his father;
Gomez-Gomez presented the following evidence that he was a juvenile at the time of the offenses: (1) a certified copy of a birth certificate from Mexico containing the Apostille certification required by the Hague Convention establishing his birthdate as October 1, 1992;
On February 12, Gomez-Gomez filed three motions. The first asked the court to reconsider its order denying the motion to dismiss. The second was a renewed motion to take depositions in Mexico of five witnesses: his second-grade teacher, a physician who administered his vaccinations, a priest from the church where he was baptized, his sister, and his father. The third, in the alternative, asked the court to extend the time for him to appeal the earlier denial of his motion to dismiss. On February 24, the district court denied all three motions. Gomez-Gomez appeals.
A court of appeals "must determine its own jurisdiction and is bound to do so in every instance." Dickerson v. McClellan, 37 F.3d 251, 252 (6th Cir.1994). Thus, we first must determine whether we have interlocutory appellate jurisdiction to consider the district court's denials of Gomez-Gomez's motions to reconsider, to take depositions in Mexico, and to enlarge his time to appeal. Our jurisdiction is limited to "appeals from [] final decisions of the district courts." 28 U.S.C. § 1291. In criminal cases, the final judgment rule generally "prohibits appellate review until conviction and imposition of sentence." Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). Whether Gomez-Gomez is a juvenile or an adult affects the district court's subject matter jurisdiction. Cf. United States v. Chambers, 944 F.2d 1253, 1259 (6th Cir. 1991) (stating that "the certification requirement [of the Federal Juvenile Delinquency Act] is a prerequisite to the district court's subject-matter jurisdiction in cases where the government proceeds against juveniles accused of performing acts which would be federal crimes if committed by adults"). However, typically, "denial of a motion to dismiss, even when the motion is based upon jurisdictional grounds, is not immediately reviewable." Catlin v. United States, 324 U.S. 229, 236, 65 S.Ct. 631, 89 L.Ed. 911 (1945).
The Supreme Court carved out a narrow exception to the final judgment rule in Cohen v. Beneficial Industries Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Under the collateral order doctrine, an order may be immediately appealable if it: (1) "conclusively determine[s] the disputed question"; (2) "resolve[s] an important issue completely separate from the merits of the action"; and (3) "[is] effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). These three requirements must be interpreted "with the utmost strictness in criminal cases." Flanagan, 465 U.S. at 265, 104 S.Ct. 1051.
Gomez-Gomez contends that because the underlying order denying his motion to dismiss would be appealable as a collateral order, the denial of his motion to file an appeal out of time from that order is immediately appealable as well. The United States concedes that there is authority supporting the proposition that where an underlying order is an appealable collateral order, the denial of a motion to file an appeal out of time from that order is also appealable. See Diamond v. U.S. Dist. Court for Cent. Dist. of Cal., 661 F.2d 1198, 1198 (9th Cir.1981) (stating that an order denying a motion to file a late notice of appeal is appealable if "the motion seeks leave to file a late appeal from. . . an order which falls within the collateral order exception"). However, in this case the collateral order doctrine does not apply to the underlying order denying the motion to dismiss.
We have held that an order transferring a juvenile for adult prosecution is immediately appealable as a collateral order. See United States v. One Juvenile Male, 40 F.3d 841, 844 (6th Cir.1994). Some of the reasoning in One Juvenile Male suggests that a defendant indicted as an adult might be able to immediately appeal a district court's rejection of a motion to dismiss that asserts that the defendant is in fact a juvenile. First, in both cases, "the court has determined that defendant will be tried as an adult." Id. at 844. Second, in both cases "this determination is independent of the merits of the criminal charges against defendant." Id. Third, in both cases the "defendant's right to the special protections afforded juveniles at trial would be lost if he were tried and convicted as an adult before being able to appeal the transfer order." Id.; see also Chambers, 944 F.2d at 1258 (assessing the special protection that the Juvenile Delinquency Act provides to juveniles from the adult criminal prosecution process).
However, One Juvenile Male is distinguishable from this case because it involved a legal rather than a factual dispute. The district court's rejection of a motion to dismiss based on the factual determination that Gomez-Gomez is not a juvenile is not immediately appealable under the collateral order doctrine. Several Supreme Court cases are instructive. In Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Supreme Court held that "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable `final decision' within the meaning of 28 U.S.C. § 1291." However, in Johnson v. Jones, 515 U.S. 304, 319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), the Supreme Court held that "a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial
One consideration cuts in favor of Gomez-Gomez's argument that the order denying the motion to dismiss is immediately appealable. The Supreme Court suggested that when a defendant wants to appeal a district court's decision that the record sets forth a genuine issue of fact for trial, "it will often prove difficult to find any [ ] `separate' question . . . that is significantly different from the fact-related legal issues that likely underlie the plaintiff's claim on the merits." Id. at 314, 115 S.Ct. 2151. As discussed above, the factual question of Gomez-Gomez's age is not directly related to the merits of the charges against him regarding drug trafficking, money laundering, and operating a continuing criminal enterprise.
However, the remainder of the Johnson Court's analysis cuts against Gomez-Gomez's argument that the denial of the motion to dismiss is immediately appealable. The Court noted that the Mitchell Court had "explicitly limited its holding to appeals challenging . . . the purely legal issue what law was `clearly established.'" Id. at 313, 115 S.Ct. 2151. The issue in One Juvenile Male, whether a juvenile should be transferred for adult prosecution, is a legal question regarding what is "in the interest of justice." See 18 U.S.C. § 5032. The issue in this case, whether Gomez-Gomez is an adult, is a factual question regarding age. In addition, the Johnson Court considered "the competing considerations that underlie questions of finality." 515 U.S. at 315, 115 S.Ct. 2151. First, like the existence of a triable issue of fact at stake in Johnson, a defendant's age is "the kind of issue that trial judges, not appellate judges, confront almost daily. Institutionally speaking, appellate judges enjoy no comparative expertise in such matters." Id. at 316, 115 S.Ct. 2151. Thus, "interlocutory appeals are less likely to bring important error-correcting benefits here than where purely legal matters are at issue." Id. Second, like the issue at stake in Johnson, the issue of a defendant's age, "if appealable, can consume inordinate amounts of appellate time." Id. Resolving such a factual controversy may require reviewing an extensive pretrial record and lead to greater delay than resolving a purely legal issue. Id. Finally, "the close connection between this kind of issue and the factual matter that will likely surface at trial means that the appellate court . . . may well be faced with approximately the same factual issue again." Id. Gomez-Gomez asserts that at trial, he "would be free to introduce evidence that he was a mere teenager in support of his defense that he was not a leader of a drug operation." (Merit Brief of Defendant-Appellant Rigoberto Gomez Gomez at 37). Therefore, an interlocutory appeal concerning a defendant's age in this type of case might force an appellate court to decide an issue identical to one that it will most likely have to decide in a later appeal. Johnson, 515 U.S. at 317, 115 S.Ct. 2151.
Thus, this Court lacks interlocutory appellate jurisdiction to consider Gomez-Gomez's appeals from the denials of his three pre-trial motions. If Gomez-Gomez is convicted and sentenced, then he may challenge the district court's denial of his motion to dismiss at that time.
In addition to his direct appeal, Gomez-Gomez petitions for two alternative forms of relief in mandamus. He requests that this Court: (1) direct the district court to order the depositions of the five proposed Mexican witnesses and reconsider its jurisdiction;
"Mandamus is a drastic remedy that should be invoked only in extraordinary cases where there is a clear and indisputable right to the relief sought." United States v. Young, 424 F.3d 499, 504 (6th Cir.2005). This Court, In re Parker, 49 F.3d 204, 207 (6th Cir.1995), considers five factors in determining whether extraordinary circumstances warrant mandamus relief:
The balance of these factors weighs against mandamus relief. It is true that under the second factor, Gomez-Gomez may be prejudiced in a way not correctable on appeal if he is in fact a juvenile and is forced to go through trial without the protections of the Juvenile Delinquency Act. Cf. Chambers, 944 F.2d at 1258 (describing the special protections afforded juveniles by the Juvenile Delinquency Act). However, the other four factors weigh against mandamus relief.
Under the first factor, Gomez-Gomez may obtain review of the district court's decisions on direct appeal if he is convicted. See In re Ford, 987 F.2d 334, 342 (6th Cir.1992) (holding that petitioner failed to demonstrate that he had no adequate alternative means of relief when he could appeal from the final judgment).
Under the third factor, the district court's orders are not clearly erroneous as a matter of law. The district court's decision to deny Gomez-Gomez's motion for reconsideration is not clearly erroneous. The district court denied Gomez-Gomez's motion to dismiss on January 12, 2010, and Gomez-Gomez filed his motion to reconsider on February 12. The motion was untimely because it was filed more than fourteen days after entry of the district court's order.
The district court's decision denying Gomez-Gomez's request to depose witnesses also was not clearly erroneous. Rule 15 of the Federal Rules of Criminal Procedure provides that "[a] party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice." However, Gomez-Gomez's motion did not seek to depose the witnesses to preserve testimony for trial, but to provide further evidence in support of his motion to dismiss, which the district court had denied. The district court found that Gomez-Gomez did not provide sufficient information to indicate that the witnesses were unavailable, he failed to demonstrate how the testimony was material to the offenses charged, and he gave no consideration to the arrangements that the United States or his detained codefendants would need to make to attend depositions in Mexico. This decision is not clearly erroneous.
The district court's denial of Gomez-Gomez's motion to enlarge his time to appeal was also not clearly erroneous. Rule 4(b)(4) of the Federal Rules of Appellate Procedure provides that "[u]pon a finding of excusable neglect or good cause, the district court may . . . extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b)." Gomez-Gomez's motion made no mention of excusable neglect. He offered as "good cause" that "counsel completed additional research involving cases outside of the Sixth Circuit that might persuade the Sixth Circuit to entertain the appeal." However, researching appealability is within the control of counsel. Cf. Bishop v. Corsentino, 371 F.3d 1203, 1207 (10th Cir.2004) (explaining that "good cause" applies in situations in which there is no fault and the extension is necessary because of some factor not within the control of the movant); United States v. Hirsch, 207 F.3d 928, 929 (7th Cir.2000) (suggesting that a court "clerk's failure to perform a ministerial act whose omission could have serious consequences for a criminal defendant" would constitute "good cause"). Researching case law is a typical prefatory step common to the appeal process. Cf. Bishop, 371 F.3d at 1207 ("Counsel's need to review the record, consult with the client, and, where counsel deems it desirable to obtain an additional legal perspective, are typical prefatory steps common to the appeal process."). Gomez-Gomez failed to indicate to the district court why the additional research could not have been completed within the normal time to appeal. Thus, the district court did not clearly err in denying Gomez-Gomez's motion to enlarge his time to appeal. Therefore, the fact that none of the district court's decisions are clearly erroneous weighs against mandamus relief.
Under the fourth and fifth factors, the district court's orders are not oft-repeated errors, and they do not raise issues of law of first impression. It seems that this is the first time that a defendant has challenged
Because Gomez-Gomez's appeals from the denials of three pre-trial motions do not meet the requirements of the collateral order doctrine, we find that this Court lacks jurisdiction to consider them. Because Gomez-Gomez has not shown a clear and indisputable right to mandamus relief, we deny his petition for a writ of mandamus.
APPEAL DISMISSED.