In Re: Kevin Flood , 254 F. App'x 139 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
11-9-2007
In Re: Kevin Flood
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3561
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Recommended Citation
"In Re: Kevin Flood " (2007). 2007 Decisions. Paper 224.
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DLD-37 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3561
___________
IN RE: KEVIN PATRICK FLOOD,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Western District of Pennsylvania
(Related to W.D. Civ. No. 06-cv-00082J)
District Judge: The Honorable Kim R. Gibson
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
October 25, 2007
Before: BARRY, CHAGARES AND VAN ANTWERPEN, CIRCUIT JUDGES.
(Opinion filed November 9, 2007)
_________
OPINION
_________
PER CURIAM
Kevin Flood was tried before a jury in May 2007 on charges of conspiracy to
possess and distribute marijuana, possession with intent to distribute marijuana, and
possession of a firearm by a felon. Before the trial, Flood filed a motion in which he
moved for the audiotapes to be tested to confirm their authenticity. The district court
found that Flood had missed the deadline for filing pretrial motions and that he had
otherwise not raised any basis for requiring such testing. The court denied the motion.
Months later, after the trial, the jury convicted him on all charges.
Flood has now filed a petition for writ of mandamus and for other relief, alleging a
conspiracy to tamper with, delete or destroy certain audio surveillance tapes made by
police in their investigation of him on the drug charges. He requests that certain officials
named by him be ordered to investigate and file appropriate criminal charges against
those responsible. We will deny the petition.
A writ of mandamus will only issue under extraordinary circumstances. See
Sporck v. Peil, 759 F.2d 312, 314 (3d Cir. 1985). A petitioner must establish that there is
no alternative remedy or other adequate means to obtain the desired relief, and the
petitioner must demonstrate a clear and indisputable right to the relief sought. Kerr v.
United States District Court, 426 U.S. 394, 403 (1976).
Flood does not meet the stringent requirements for relief here. He maintains that
the audiotapes contained favorable evidence to his defense to the criminal charges. But
Flood has not demonstrated that he has no alternative remedy or other adequate means of
relief. Indeed, as he previously filed a motion challenging the tapes’ authenticity during
the course of his criminal case, the proper course would be for him to raise the issue in his
direct criminal appeal. A writ of mandamus is not a substitute for an appeal. See In re
Ford Motor Co., 110 F.3d 954, 957 (1997). Furthermore, Flood contends that he has
filed a civil action in which he has now included claims of audiotape tampering in his
supplemental complaint. There are no “extraordinary circumstances” meriting mandamus
relief here, particularly where Flood is already attempting to otherwise litigate his claims
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of tampering in a civil action.
For these reasons, we will deny the petition for mandamus relief. The “Motion
Requesting Rule 48 Masters” and his motion seeking appointment of counsel are denied.
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