USA v. Steven Michael Marks

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13319
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN MICHAEL MARKS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:17-cr-00257-PGB-LRH-1
____________________
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2 Opinion of the Court 21-13319
Before G RANT, TJOFLAT, Circuit Judges, and H UFFAKER ,* District
Judge.
PER CURIAM:
In this criminal case, after the defendant, Steven Michael
Marks, provided notice of his intent to assert a defense of insanity
at the time of the alleged offense, his attorneys, representing that
Marks had become indigent, moved the District Court pursuant to
Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087 (1985), for funds to hire
a mental health expert to assist him in countering the testimony he
anticipated the prosecution’s mental health expert would present.
The District Court denied the motion on the theory that Marks
already had a mental health expert, Dr. Lynda Geller, the clinical
psychologist retained for the purpose of determining his compe-
tency to stand trial.
Marks, invoking our jurisdiction under 28 U.S.C. § 1291,
now appeals the District Court’s order denying his motion for
funds to hire a mental health expert.1 He asserts that we have
* The Honorable R. Austin Huffaker, Jr., United States District Judge for the
Middle District of Alabama, sitting by designation.
1 Marks asks us to order the District Court to provide him with funds pursuant
to 18 U.S.C. § 3006A(e)(1) necessary to pay for the services the mental health
expert performed prior to the presence of his motion to the District Court.
18 U.S.C. § 3006A(e)(1) states:
Counsel for a person who is financially unable to obtain inves-
tigative, expert, or other services necessary for adequate rep-
resentation may request them in an ex parte application. Upon
finding, after appropriate inquiry in an ex parte proceeding,
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21-13319 Opinion of the Court 3
jurisdiction under the collateral order doctrine, see Cohen v. Benefi-
cial Indus. Loan Corp., 337 U.S. 541, 69 S. Ct. 1221 (1949), represent-
ing that the order at issue could not be reviewed in the appeal of
an adverse judgment at the conclusion of his criminal case.
Before we entertained oral argument in this appeal, Marks
pleaded guilty to a felony alleged in the indictment in this case and
was sentenced. With the entry of the final judgment in this case,
Marks’s appeal became moot. We therefore dismiss this appeal
without prejudice.2
SO ORDERED.
that the services are necessary and that the person is financially
unable to obtain them, the court, or the United States magis-
trate judge if the services are required in connection with a
matter over which he has jurisdiction, shall authorize counsel
to obtain the services.
2 Under United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S. Ct. 104, 106
(1950), when an appeal becomes moot, we dismiss the appeal and instruct the
district court to vacate the decision giving rise to the appeal. In this case, that
is not necessary.
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21-13319 G RANT, J., Concurring in the Judgment 1
G RANT, Circuit Judge, concurring in the judgment:
The district court denied Steven Marks’s motion for funds
under the Criminal Justice Act, 18 U.S.C. § 3006A(e), to reimburse
his preferred psychiatric expert. The majority holds that we lack
jurisdiction over Marks’s interlocutory appeal of this order because
his subsequent guilty plea and the district court’s entry of final judg-
ment render this appeal moot.
I agree that we lack jurisdiction, but for a different reason.
The district court granted Marks CJA funds to retain one expert;
Marks challenges only the district court’s denial of funds for Marks
to reimburse the expert of his choice. I would hold that such a fee
determination under § 3006A(e) is an administrative, non-judicial
order that does not constitute a final appealable order under 28
U.S.C. § 1291. See United States v. Bloomer, 150 F.3d 146, 148–49 (2d
Cir. 1998); cf. United States v. Rodriguez, 833 F.2d 1536, 1537–38
(11th Cir. 1987) (18 U.S.C. § 3006A(d)); United States v. Griggs, 240
F.3d 974, 974 (11th Cir. 2001) (18 U.S.C. § 3006A(f)). And because
it is only an administrative order, it is also not a judicial interlocu-
tory order subject to the collateral order doctrine. United States v.
Stone, 53 F.3d 141, 143–44 (6th Cir. 1995); United States v. French, 556
F.3d 1091, 1094 (10th Cir. 2009).
The majority would instead characterize Marks’s motion as
arising under Ake v. Oklahoma, 470 U.S. 68 (1985). Maj. Op. at 1 &
n.1. Ake held that, “when a defendant has made a preliminary
showing that his sanity at the time of the offense is likely to be a
significant factor at trial, the Constitution requires that a State
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2 G RANT, J., Concurring in the Judgment 21-13319
provide access to a psychiatrist’s assistance on this issue if the de-
fendant cannot otherwise afford one.” Ake, 470 U.S. at 74. But Ake
guarantees a defendant a right only to an expert—not to “a psychi-
atrist of his personal liking.” Id. at 83; accord Gary v. Hall, 558 F.3d
1229, 1238 n.14 (11th Cir. 2009). Marks’s motion for funds to com-
pensate his preferred expert when he already had one thus did not
arise under Ake, at least in my view.
But even if Marks’s motion could be construed as an Ake mo-
tion, this appeal would still not be moot. In Ake itself, the Supreme
Court reviewed and reversed a criminal defendant’s final convic-
tion. Ake, 470 U.S. at 74. Our Circuit also routinely reviews the
merits of Ake claims from final judgments.1 See, e.g., United States
v. Brown, 441 F.3d 1330, 1337, 1365 (11th Cir. 2006); United States v.
Rodriguez, 799 F.2d 649, 651, 655 (11th Cir. 1986). This includes in
the habeas context, where a petitioner’s Ake claim was reviewed by
a state court of appeal from his or her final conviction. See, e.g.,
Blanco v. Sec’y, Florida Dep’t of Corr., 688 F.3d 1211, 1214–20, 1227–
30 (11th Cir. 2012); Hightower v. Schofield, 365 F.3d 1008, 1011–12,
1014–28 (11th Cir. 2004), vacated on other grounds, 545 U.S. 1124
(2005). Therefore, we would lack jurisdiction over this interlocu-
tory appeal because an order denying an Ake motion, like a denial
of funds to reimburse a preferred expert under § 3006A(e), is not a
collateral order. Nor would the subsequent entry of final judgment
1 Marks has also filed a separate appeal from his final judgment. See Case No.
23-10463. If Marks had actually made an Ake claim below, then he could have
raised it in his direct appeal.
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21-13319 G RANT, J., Concurring in the Judgment 3
cure our jurisdiction over Marks’s premature appeal. See Robinson
v. Tanner, 798 F.2d 1378, 1385 (11th Cir. 1986) (“A premature notice
of appeal filed from an interlocutory order that is not immediately
appealable is not cured by a subsequent final judgment.”).
Because I agree with the majority that we lack jurisdiction
over this interlocutory appeal but on a different ground, I respect-
fully concur only in the judgment.
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