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United States v. David Caldwell , 929 F.2d 702 ( 1991 )


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  • 929 F.2d 702

    Unpublished Disposition
    NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
    UNITED STATES of America, Plaintiff-Appellee,
    v.
    David CALDWELL, Defendant-Appellant.

    No. 91-5153.

    United States Court of Appeals, Sixth Circuit.

    April 3, 1991.

    W.D.Ky., No. 86-00092; Allen, J.

    1

    W.D.Ky.

    2

    DISMISSED.

    3

    Before NATHANIEL R. JONES and SUHRHEINRICH, Circuit Judges, and JOINER, Senior District Judge*.

    ORDER

    4

    The defendant was indicted with several other defendants for various drug offenses involving the importation and distribution of cocaine and marijuana. By order of January 29, 1991, the district court disqualified defendant's retained counsel on grounds of an actual conflict of interests. The defendant appealed from that order. He now moves to hold his appeal in abeyance on grounds the conflict of interests may have been resolved. The plaintiff has no objection to the motion.

    5

    This court has a duty to consider sua sponte its appellate jurisdiction in appeals brought before it. Liberty Mutual Insurance Co. v. Wetzel, 424 F.2d 737, 740 (1976); Baker v. Raulie, 879 F.2d 1396, 1398 (6th Cir.1989) (per curiam). It is well-settled that pretrial orders disqualifying counsel in criminal actions are not immediately appealable as a final order under 28 U.S.C. Sec. 1291. Flanagan v. United States, 465 U.S. 259 (1984); United States v. Tosh, 733 F.2d 422 (6th Cir.1984).

    6

    It therefore is ORDERED that this appeal is dismissed sua sponte for lack of appellate jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit. The motion to hold the appeal in abeyance is denied as moot. We express no opinion on the district court's finding of an actual conflict of interest or the defendant's belief that conflict may have been resolved.

    *

    The Honorable Charles W. Joiner, Senior District Judge for the Eastern District of Michigan, sitting by designation