Petition for Writ of Certiorari — Golay v. United States (No. 07-4)

Supreme Court, U.S.

FILED

07-4 JUN27 2007

OFFICE OF THE CLERK

In the

Supreme Court of the Anited States

HELEN GOLAY,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Roger Jon Diamond

Counsel of Record

2115 Main Street

Santa Monica, CA 90405

(310) 399-3259

Counsel for Petitioner

June 27, 2007

Becker Gallagher - Cincinnau, OH - Washington, D.C. - 800.890.5001

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QUESTIONS PRESENTED

1. Do the federai courts of appeals have appellate

jurisdiction over appeals filed by defendants in criminal cases

where the district courts, over the objections of the

defendants, dismiss indictments without prejudice when the

district court’s dismissals are made without affording the

defendants hearings on the question of whether the dismissals

should be without prejudice?

2. Does a defendant in a federal criminal case have the

right to be heard by a federal district court on the issue of

whether the indictment should be dismissed with or without

prejudice?

3. If a federal district court dismisses an indictment

without prejudice over the objection of a defendant who is

deprived of a hearing on the issue (and who was arrested and

detained for 90 days and whose request for a speedy trial was

rejected when the district court previously postponed the

scheduled trial over the defendant’s objection), may the

defendant appeal the dismissal without prejudice to a court of

appeal?

4. Does this Court’s 5 to 4 decision in Parr v. United

States, 351 U.S. 513, 76 S. Ct. 912 (1956), which upheld the

Court of Appeal’s order dismissing an appeal from a district

court’s dismissal without prejudice, apply to a case where

there is no second, parallel] indictment which the Government

desires to pursue?

5. Is this Court’s 5 to 4 decision in Parr v. United States,

351 U.S. 513, 76 S.C. 92 (1956), still valid in light of this

Court’s subsequent decision in Abney v. United States, 431

U.S. 651, 97 S. Ct. 2034 (1977), which allowed a defendant

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to appeal prior to a final sentence, which this Court

previously said in Parr was a jurisdictional prerequite to an

appeal?

ill

PARTIES TO THE PROCEEDINGS

Petitioner: | Helen Louise Golay is the Petitioner. She was

a defendant in a pending criminal case in the

United States District Court for the Central

District of California. Although her federal

case was dismissed she is currently in custody

awaiting trial in the Los Angeles County

Superior Court.

Respondent: United States of America

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TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

PARTIES TO THE PROCEEDINGS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

TABLE OF APPENDICES

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

STATEMENT OF JURISDICTION

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CERTIORARI SHOULD BE GRANTED TO

DETERMINE WHETHER THIS COURT’S FIVE

TO FOUR DECISION IN PARR v. UNITED STATES,

331 U.S. S13, 7 5S. Ct.. 912: (1956) D STILL

VALID IN LIGHT OF ABNEY v. UNITED STATES,

431 U.S. 651, 97S. Ct. 2034, 52 L.Ed.2d 651 (1977)

AND IF IT IS STILL VALID, WHETHER IT

APPLIES TO FINAL DISMISSALS WHERE

THERE IS NO ADDITIONAL PENDING

FEDERAL CASE AND WHERE THE STATUTE

OF LIMITATIONS HAS NOT RUN

CONCLUSION

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TABLE OF AUTHORITIES

Federal Cases

Abney v. United States,

431 U.S. 651, 97 S. Ct. 2034 (1977) passim

Bowles v. Russell,

551 U.S. (2007) a5 key Ae a

Gonzales v. O Centro Esp. Benef. Uniao Do Vege,

_._ US. __, 1226S. Ct.1211 (2006)

Jones v. Flowers,

__US. __, 126 S. Ct. 1708 (2006)

Lewis v. United States,

216 U.S. 611, 30 S. Ct. 438, [54 L.Ed.637] (1910) . 13

Parr v. United States,

351 U.S. 513, 76 S. Ct.912 (1956)

Will v. Hallock,

_ US. _, 126.8. Ct. 95262006)

Constitution and Statutes

Sixth Amendment to the U.S. Constitution

Eighth Amendment to the U.S. Constitution

28 U.S.C. §1254 (1)

Title 28, United States Code, Section 1291

California Pena] Code §4005

Rules

Rule 13 of the Supreme Court Rules

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TABLE OF APPENDICES

Appendix A

Court of Appeals Judgment, dated 4/6/076

Appendix B

Court of Appeals Order, filed 4/6/07

Appendix C

District Court Order Dismissing Indictment Without

Prejudice, filed 8/16/06

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PETITION FOR WRIT OF CERTIORARI

Petitioner Helen Louise Golay (“Golay”) respectfully

prays that a Writ of Certiorari issue to review the judgment of

the United States Court of Appeals for the Ninth Circuit filed

and entered on April 6, 2007 dismissing Golay’s appeal from

an Order of the United States District Court for the Central

District of California filed August 16, 2006 which dismissed

a federal indictment against Golay without prejudice.

OPINIONS BELOW

The unpublished order of the United States District Court

for the Central District of California dismissing the Indictment

without prejudice on August 16, 2006 is not reported. It is

Appendix C.

The unpublished Order of the Ninth Circuit Court of

Appeals filed April 6, 2007 dismissing the appeal is not

reported. It is Appendix B.

The unpublished judgment of the United States Court of

Appeals for the Ninth Circuit filed and entered April 6, 2007

dismissing the appeal is not reported. It is Appendix A.

STATEMENT OF JURISDICTION

On August 16, 2006 the United States District Court for

the Central District of California filed its “Order Dismissing

Indictment Without Prejudice.” (Appendix C) The United

States District Court had jurisdiction under Title 18, United

States Code Section 3231.

Golay filed a timely Notice of Appeal on Monday, August

28, 2006. The Notice of Appeal was timely filed because the

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tenth day after the Order of Dismissal was Saturday, August

26, 2006. Golay had the right to file her Notice of Appeal on

the Monday following the expiration of the tenth day. In

filing her Notice of Appeal Golay invoked the jurisdiction of

the United States Court of Appeals for the Ninth Circuit by

referring to Title 28, United States Code, Section 1291.

On April 6, 2007 the United States Court of Appeals for

the Ninth Circuit filed its Order (Appendix B) and its

judgment (Appendix A) dismissing the appeal for lack of

jurisdiction.

Golay is invoking the certiorari jurisdiction of this Court

by filing this Petition within 90 days of April 6, 2007. The

90" day is July 5, 2007. This Court has certiorari jurisdiction

to decide whether the Court of Appeals properly dismissed the

appeal pending before it for alleged lack of jurisdiction. See

28 U.S.C. §1254 (1) and see Bowles v. Russell, 551 U.S.

(2007) (decided June 14, 2007). This Petition is being filed

pursuant to Rule 13 of the Supreme Court Rules.

STATUTORY PROVISION INVOLVED

Title 28, United States Code, Section 1291 provides, in

part, as follows:

“The courts of appeals . . . shall have jurisdiction of

appeals from all final decisions of the district courts of

the United States... .”

STATEMENT OF THE CASE

In September 2005 the Los Angeles Police Department

was investigating the deaths of two persons, Paul Vados and

Ken McDavid (Excerpt of Record filed with the United States

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Court of Appeals for the Ninth Circuit, pp. 20-21,

hereinafter “ER”). Specifically, Paul Vados was killed by an

apparent hit and run driver in an alley in Hollywood in 1999

and Ken McDavid was apparenily killed by a hit and run

driver in an alley in Westwood in 2005. The Los Angeles

Police Department investigated these deaths and tied them

together because both Mr. Vados and Mr. McDavid had a

number of life insurance policies wherein Golay and co

defendant Olga Rutterschmidt were named as beneficiaries.

In October 2005 the Los Angeles Police Department

detectives investigating the two deaths contacted the Federal

Bureau of Investigation (“FBI”). At that time according to

the government, the LAPD’s investigation indicated that

Golay and Rutterschmidt appeared to have fraudulently

obtained numerous life insurance policies on McDavid and

Vados. Beginning in October 2005 the LAPD and the FBI

jointly investigated both the insurance fraud aspect of the case

and the murder aspect of the case. See Declaration of Jason

P. Gonzales, Assistant U.S. Attorney, attached to the

Government’s motion to dismiss the indictment (ER 20-24).

On May 16, 2006 the FBI obtained a federal complaint

against Golay and Rutterschmidt (ER 55). Essentially they

were accused of violating Title 18, Untied States Code,

Section 1341. Both Golay and Rutterschmidt were arrested

on May 18, 2006 and taken into federal custody. Both were

detained without bail (ER 55-56).

On May 30, 2006 both Golay and Rutterschmidt were

indicted jointly by a federal Grand Jury and formally charged

with mail fraud (ER 1). Essentially it was alleged that both of

them engaged in a fraudulent scheme to obtain life insurance

on Ken McDavid. On June 5, 2006 both of them were

arraigned post indictment (ER 57-58).

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The jury trial was set at the arraignment for July 25, 2006

(ER 58).

Golay was held in custody at the county jail in San

Bernardino. Rutterschmidt was kept at the Metropolitan

Detention Center in downtown Los Angeles (ER 42-44; 57-

60).

On June 8, 2006 Golay filed a motion for order setting

bail. The hearing was to be conducted on July 10, 2006 (ER

58).

Golay also requested that if her motion for bail should be

denied she should still be moved from the county jail in San

Bernardino to the Metropolitan Detention Center in downtown

Los Angeles (ER 58).

The bail hearing was advanced to July 5, 2006 and on that

day the Court denied the request for bail (ER 58-59). The

Court did order Golay transferred from the county jail in San

Bernardino to the Metropolitan Detention Center. At that

time Golay’s trial was still scheduled for July 25, 2006 (ER

58-60).

However, on July 18, 2006 at the request of the

Government a Status Conference was held by District Judge

R. Gary Klausner. Over the objection of Golay, the trial was

continued from July 25 to October 24, 2006 (ER 60).

On July 31, 2006 the District Attorney of the County of

Los Angeles filed state court murder charges against Golay

and Rutterschmidt in the Los Angeles County Superior Court

(ER 25). The charges were based upon the same investigation

being jointly conducted by the FBI and the Los Angeles

Police Department. On the following day, August |, 2006 the

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United States Government filed an ex parte application to

dismiss the federal indictment without prejudice on the stated

ground that the federal government wanted to allow the state

to proceed first with the murder charges against Golay and

Rutterschmidt (ER 10-24).

On August 7, 2006 Golay filed Opposition to the

Government’s application to dismiss the indictment without

prejudice (ER 41). In her Opposition papers Golay requested

a hearing in Court on the issue of whether the Government

could dismiss the indictment without prejudice. Golay

indicated in her Opposition that she had no opposition to a

dismissal with prejudice. The basis for her Opposition was

that the Government was seeking to have the indictment

dismissed without prejudice. Golay was concerned that after

winning the state murder charges she would then be reindicted

by the federal government and be forced once again to defend

herself in the federal court. Golay was also concerned with

the fact that she would have spent 90 days in federal custody

with no credits and for no purpose (ER 41-49). Golay

believed, and wanted a hearing to prove, that the federal case

was a sham and that it was used for the sole purpose of taking

her and Rutterschmidt into custody to allow state murder

charges to be pursued while they remained in federal custody.

Golay wanted to demonstrate that the Government never

intended to pursue the federal case.

On August 16, 2006, without conducting a hearing and

without conducting oral argument, the District Court granted

the Government’s ex parte request to dismiss the indictment

without prejudice (ER 50). The District Court's order did not

even indicate whether the court read or considered Goiay’s

written opposition.

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The federal government thereafter released Golay and

Rutterschmidt to the police for placement in state custody.

Golay and Rutterschmidt were then transferred to the custody

of the Sheriff of the County of Los Angeles where they have

remained in the county jail since August 17, 2006. The irony

is that the Los Angeles County jail is farther from the Los

Angeles County Court where they would be tried on state

murder charges than the Federal Metropolitan Detention

Center. It should also be noted that a person in a county jail

may still be tried for a federal crime in a federal court. See

California Penal Code §400S5.

Golay timely filed a Notice of Appeal on August 28, 2006

(ER 52) challenging the authority of the Government to

dismiss the case against her wishes without prejudice. Golay

justifably fears - another indictment and prolonged

incarceration without bail while she contests the re filed

charges. Golay challenged the conduct of the Government in

having her arrested in the first place. Golay asserted in her

appeal that the District Court violated her rights by not

conducting an evidentiary hearing with respect to the issue of

dismissal with or without prejudice. Also Golay asserted in

her appeal that the District Court erred by not even giving her

the chance to appear in open court to argue the matter.

Golay filed her Opening Brief with the United States

Court of Appeals with the Ninth Circuit on December 18,

2006. Instead of filing a Reply Brief, the Government on

February 26, 2007 filed a Motion to Dismiss Golay’s appeal

on the ground the Court of Appeals for the Ninth Circuit

lacked jurisdiction. Golay filed opposition to the

Government's motion to dismiss her appeal on March 5,2007.

On April 6, 2007 the United States Court of Appeals for

the Ninth Circuit filed its order and judgment dismissing the

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appeal for lack of jurisdiction. The Ninth Circuit did not

conduct a hearing on the Government’s motion.

REASONS FOR GRANTING THE WRIT

CERTIORARI SHOULD BE GRANTED TO

DETERMINE WHETHER THIS COURT’S FIVE TO

FOUR DECISION IN PARR yv. UNITED STATES, 351

U.S. 513, 76 S. Ct. 912 (1956) IS STILL VALID IN

LIGHT OF ABNEY v. UNITED STATES, 431 U.S. 651, 97

S. Ct. 2034, 52 L.Ed.2d 651 (1977)AND, IF IT IS STILL

VALID, WHETHER IT APPLIES TO FINAL

DISMISSALS WHERE THERE IS NO ADDITIONAL

PENDING FEDERAL CASE AND WHERE THE

STATUTE OF LIMITATIONS HAS NOT RUN

The United States Court of Appeals for the Ninth Circuit

dismissed Golay’s appeal for alleged lack of jurisdiction. The

Ninth Circuit cited this Court’s-decision in Parr v. United

States, 351 U.S. 513, 76 S. Ct. 912 (1956) to support its

dismissal of Golay’s appeal.

This Court’s five to four decision in Parr v. United States,

supra, bears only superficial similarity to the jurisdictional

issue resolved by the Ninth Circuit against Golay with respect

to her appeal from the dismissal by the District Court of the

indictment without prejudice.

In Parr v. United States, supra, the Government obtained

an indictment against Mr. Parr for income tax evasion. The

indictment was filed in the Corpus Christi Division of the

United States District Court for the Southern District of

Texas. The District Court in Corpus Christi granted Parr’s

motion to change venue to the Laredo Division of the

Southern District.

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The Government apparently did not want to try the case

against Mr. Parr in Laredo. Accordingly, the Government

obtained a new indictment against Parr in the Austin Division

of the Western District of Texas. The next day the

Government moved in the Corpus Christi Division for leave

to dismiss the first indictment. Over Parr’s objection, the

District Court granted the Government’s motion to dismiss.

Mr. Parr appealed the order of dismissal to the United

States Court of Appeals for the Fifth Circuit. On a two to one

vote, the Fifth Circuit granted the Government’s motion to

dismiss the appeal on the ground that the order was not

appealable. This Court granted certiorari to consider both the

merits of the appeal as well as the question of appealability.

This Court concluded on a five to four vote that Mr. Parr

could not appeal the dismissal order to the Fifth Circuit.

Chief Justice Earl Warren and Justices Black, Douglas, and

Clark dissented. The majority of this Court in Parr v. United

States, supra, stated that Mr. Parr could not pursue his appeal

to the Fifth Circuit because he was not “aggrieved.”

The majority reasoned that even if the dismissal left Mr.

Parr open for further prosecution he could only test the effect

of the dismissal order if he should be convicted .

The majority opinion did not deal with the a case where

the defendant is in custody with no bail being set and where

her speedy trial right has been violated. Nor did the majority

deal with a dismissal that was opposed where the defendant

was deprived of a hearing to contest the dismissal without

prejudice.

The majority stated that should Parr be convicted he could

raise On appeal from such a conviction the validity of the

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dismissal order even though that dismissal order would have

occurred in a case with a different case number. The majority

did not seem to be impressed with the contention that Mr.

Parr would suffer injury simply by having to endure a trial.

The majority’s conclusion that enduring a trial itself is not an

injury that would otherwise justify appellate jurisdiction was

undermined 21 years later by this Court in Abney v. United

States, 431 U.S. 651, 97S. Ct. 2034, 52 L.Ed.2d 651 (1977).

In the Abney case this Court held (with Chief Justice Burger

writing the opinion) that enduring an unnecessary trial itself

is a form of an injury for which the courts provide a remedy.

This Court in the Abney case held that an order denying a

motion to dismiss an indictment is appealable when the

defendant seeking to appeal the denial of the motion to

dismiss contends that the Double Jeopardy clause of the

Constitution would be violated. This Court specifically

rejected the argument of the Government that the remedy for

a violation of the Double Jeopardy clause would be an appeal

from any conviction. Thus, having to endure an unnecessary

and unjustified trial makes the defendant aggrieved sufficient

to allow her to appeal. If a defendant in a criminal case has

the right to appeal the denial of a motion to dismiss, where

the appeal would cause delay in the proceedings, then clearly

one should be able to appeal a dismissal order. This Court at

footnote 8 acknowledged that its decision could encourage

some defendants to engage in dilatory appeals. The Solicitor

General expressed those fears to this Court. This Court said

that perhaps that problem could be mitigated or avoided by

providing expedited treatment for those appeals. However, an

appeal from an order denying a motion to dismiss does disrupt

the trial calendar and does cause some delay. In contrast, an

appeal by a defendant for whom a case has been dismissed

creates no delay problems. By definition, there is no longer

any case pending in the District Court when the appeal is

pursued. Moreover, the instant case differs from Parr v.

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United States because in that case the Government wanted to

pursue the same indictment in a different division or district

of the Court. Accordingly, the same disruption and delay

about which this Court expressed some concern in the Abney

case would have existed in the Parr case had the appeal been

permitted. That is so because the Government instituted a

parallel case at the time it obtained the dismissal.

Here, in contrast, there is no parallel federal case pending

against Ms. Golay. In the Parr case had the appeal been

permitted, the other District Court wherein the Government

sought and obtained the indictment would have had to await

the outcome of the appeal. Here, in contrast, there is no

comparable interference with the proceedings of another

District Court.

Here, based upon the undisputed record in this case, there

is no question but that Golay could have been brought to trial

in October 2006. There is no reason why Golay could not

have been brought to trial prior to the commencement of the

preliminary hearing in the state court.

The Government may try to distinguish the Abney case

from the instant case by pointing out that Abney involved the

application of a constitutional right under the Double Jeopardy

clause. In response, Golay respectfully points out that she,

too, has constitutional rights involved in this proceeding.

Specifically, she has a right to a speedy trial under the Sixth

Amendment and a right not to be detained indefinitely without

bail, a right granted to her under the Eighth Amendment to

the U.S. Constitution.

Golay has been in custody since May 18, 2006 and has yet

to have a trial in the federal court or a trial in the state court.

If the Government is right, when she prevails in the state

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court and obtains an acquittal, whenever that should occur,

she would not be free to leave the court by the front door

entrance. Rather, after the jury acquits her, she will be most

assuredly retransferred to federal custody where the clock

would begin again. Apparently she would have no right

under the Double Jeopardy clause to seek a dismissal and,

should the motion be denied, seek an immediate appeal.

Rather, according to the Government she would have to go to

trial (in custody) and then appeal any conviction. Ms. Golay

was 75 years old when arrested on May 18, 2006 and she has

already celebrated one birthday in custody. She is now 76

years old.

Just when does the Government believe Ms. Golay would

finally obtain appellate review of any conviction in a federal

court after a reindictment following an acquittal in the state

court. Without a final conviction upheld by an appellate court

the Government could effectively keep Golay in custody for

the rest of her life. This is something she adamantly opposes.

She is not guilty of the charges and wishes to have her day in

Court. She is entitled to a trial and meaningful appellate

review. She spent 90 days in federal custody for no reason

and has no credit for it.

\

Abney v. United States, decided 21 years after Parr v.

United States, has undermined the rationale of the Parr case

which, as the analysis herein has demonstrated, does not

control this case in any event.

Congress seems to have spoken quite explicitly in this

particular case. Title 28, United States Code, Section 1291,

provides, in part, as follows:

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“The courts of appeals . . . shall have jurisdiction of

appeals from all final decisions of the district courts of

the United States... .”

It would appear that the language in Section 1291 should

govern this case. We have a final decision of a district court.

Golay has filed a timely appeal from that final decision. In

Parr v. United States, supra, there was a second indictment

before the first indictment was dismissed. Therefore,

arguably the decision of the district court to dismiss the first

indictment might not be considered to be a final decision.

That is so because the record indicated that there already was

a second indictment on file. Here, in contrast, there has been

no second indictment. Thus, the dismissal of the indictment

in this case is a final decision. Section 1291 does not provide

for any exceptions.

In Bowles v. Russell, 551 U.S. ___ (2007) the five

member majority of this Court stated that Congress had

created no exceptions to the requirement that a notice of

appeal had to be filed within 14 days of the order of the

district court reopening the time in which to file a notice of

appeal pursuant to 28 U.S.C. §2107(c). In that particular

case this Court’s slender five member majority refused to find

an equitable exception to the 14 day rule of Section 2107(c)

even though the attorney for the habeas corpus petitioner in

that case, who was challenging a state court. murder

conviction, relied upon an erroneous determination by the

district court judge that the attorney would have 17 days to

file the notice of appeal whereas the statute limited him to 14

days. In Bowles v. Russell, the majority expressed no concern

in defeating the appellate right of the particular state court

defendant who had been convicted of a crime in the state

court. Chief Justice John Roberts seems to have ignored his

distaste for bureaucratic refusals to find exceptions in order to

13

do justice. See his decisions for the Court in Gonzales v. O

Centro Esp. Benef. Uniao Do Vege, _U.S. __, 126S. Ct.

1211 (2006) and Jones v. Flowers, _U.S._, 126 SS. Ct.

1708 (2006).

Justice Thomas, who wrote the unbelievable opinion in

Bowies v. Russell, seems in footnote 4 not to care that

adherence to a technical rule actually resulted in the execution

of a defendant whose case was awaiting review by this Court

( the clerk returned the cert petition as being untimely).

One wonders whether the five member majority of this

Court only refuses to find equitable exceptions when to do so

would help a defendant in a criminal case. Here in order to

defeat appellate jurisdiction by the Ninth Circuit this Court

would have to read an exception into Section 1291. By

granting certiorari this Court would show cynics that its

refusai to Carve exceptions in statutes applies equally to the

Government as well as criminal defendants.

This court in Parr v. United States, supra, cited Lewis v.

United States, 216 U.S. 611, 30 S. Ct. 438, 54 L.Ed.637

(1910), but that case is distinguishable because there the

statute of limitations had run and Mr. Lewis was therefore not

subject to any refiling. Here, in contrast, Ms. Golay is

definitely subject to another indictment, which would then

result in her being deprived of her liberty for a significant

amount of time while the issue might be resolved. If there

were a second indictment, the Government would argue res

judicata if Golay argued her first indictment should have been

dismissed with prejudice.

In Parr v. United States, supra, the five Justices of this

Court stated that a final judgment in a criminal case means

the sentence. The Court stated that “the sentence is the

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judgment.” The Court concluded that unless there was a

sentence there could be no appeal by a defendant in a criminal

case. As stated earlier, this theory was rejected in Abney v.

United States where this Court dispensed with the final

judgment rule. In short, Abney v. United States, supra,

modifies Parr v. United States, supra. In any event, the Parr

case is not controlling because it is factually different.

This Court in the Abney case emphasized that routine

rulings and orders by district courts are not directly

appealable. This is so because the district courts should not

be interrupted with piecemeal appeals. Thus, the routine

matters cannot be heard by the courts of appeals prior to

conviction and sentence. This Court stated in Abney v. United

States, supra, 431 U.S. at 663, 97S. Ct. at 2042:

* . Any other rule would encourage criminal

defendants to seek review of, or assert, frivolous

double jeopardy claims in order to bring more serious,

but otherwise non appealable questions to the attention

of the Courts of Appeals prior to conviction and

sentence.”

That factor militating against appeals does not exist here

because there can be no conviction and sentence in the instant

case. There is no on-going federal proceeding which is being

interrupted by the appeal that Golay has filed. Thus, unlike

the ordinary run of the mill order denying a pretrial motion,

which should not be appealed because it would interfere with

the pendency of on-going federal proceedings, the instant case

should have allowed the Ninth Circuit to review the order of

the District Court since the order is final. The case has been

terminated. Title 28, United States Code, Section 1291 says

appeals may be filed “from all final decisions. .. .” We have

a final decision here. Section 1291 does not say

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“convictions.” It says “final decisions.” So, Golay should

be able to appeal from the final decision. There should be no

exceptions to this Congressional enactment. See Bowles v.

Russell (no exceptions said a majority of this Court).

Clearly there is a case or controversy under Article III of

the Constitution. Golay is attempting to prevent future harm.

See Abney v. United States, supra. She is currently

aggrieved. Even in cases where there is no final decision this

Court has allowed appeals because standing trial would be the

injury. See generally Will v. Hallock, _US. __, 126

S. Ct. 952 (2006). Here there is no need to find that standing

trial is a sufficient injury to justify dispensing with the finality

requirement of Section 1291. There is no need to grant an

exception to the finality requirement because here there is a

final decision.

if Golay cannot appeal, no one could appeal repeated

dismissals without prejudice. What would happen if the

Government repeatedly indicted and then dismissed without

prejudice. What if the Government did so 10 times in a row

to keep the defendant in custody with no trial. There must be

appellate jurisdiciion lo prevent such misconduct.

Perhaps if the Government inadvertently indicts and

quickly dismisses a case in good faith, where the defendant is

not in custody, we might have a different case. Here Golay

was not even given a hearing.

We do not even know if the district court read or

considered Golay’s opposition. The dismissal order does not

say.

This Court should not look at the merits of the appeal.

Golay was deprived by the district court of making an

16

adequate record for appeal. Indeed, that was one of her

grounds for appeal.

CONCLUSION

For the foregoing reasons, petitioner Golay respectfully

asks this Court to issue a writ of certiorari to review the

judgment of the Ninth Circuit and to reverse it with

instructions to reinstate Golay’s appeal

Respectfully submitted,

ROGER JON DIAMOND

Counsel of Record

2115 Main Street

Santa Monica, CA 90405

(310)399-3259

Attorney for Petitioner