## F I L E D United States Court of Appeals Tenth Circuit 

### November 29, 2005
Clerk of Court UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. JIMMY C. CHISUM,

Defendant-Appellant. No. 05-7124 (D.C. No. 05-CR-43-W) (E.D. Okla.)

ORDER AND JUDGMENT
Before KELLY, LUCERO, and TYMKOVICH , Circuit Judges.
Jimmy C. Chisum moves for an emergency stay of his criminal trial for income tax evasion, which was set to begin on November 28, 2005. The motion was not filed in this court until November 28. The basis of his motion is that the Tenth Circuit should resolve before trial his inter locutory appeal from the district court’s orders denying his pretrial motions. Notwi thstanding the untimeliness of his motion, because we conclude that we have no jur isdiction over the underlying appeal, we dismiss the appeal and deny the emergenc y motion for stay. Mr. Chisum’s notice of appeal asserts that the district court’s denial of his pre-trial motion to dismiss the case for failure to allege a crime, to state a charge,-2-

or to issue a target letter violates his right to f reely exercise his religion and his right to due process, and subjects him to involuntary servitude under the Thirteenth Amendment. Appellate jurisdiction over the underlying appeal i s a prerequisite for this court’s consideration of a stay pending appeal. Desktop Direct, Inc. v. Digital Equip. Corp., 993 F.2d 755, 756-57 (10th Cir. 1993). This courthas an independent duty to examine its own jurisdiction inthe first instance. Maier v. EPA, 114 F.3d 1032, 1036 (10th Cir. 1997). We have jur isdiction over “appeals from all final decisions of the district courts of the United States.” 28 U.S.C. § 1291. A decision is considered final under this section when it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Gray v. Baker, 399 F.3d 1241, 1244 (10th Cir. 2005) (quotation marks omitted). Clearly, the district court’s orde rs have not ended the litigation and are not final. Interlocutory review of non-final decisions is warr anted for a “small class [of cases] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that app ellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541, 546 (1949). “To establish jurisdicti on under the collateral order-3-

doctrine, defendants must establish that the distri ct court’s order (1) conclusively determined the disputed question, (2) resolved an i mportant issue completely separate from the merits of the case, and (3) is ef fectively unreviewable on appeal from a final judgment.” Gray, 399 F.3d at 1245. It does not appear that the district court’s order in this case concerned issue s separate from the merits of the criminal trial, thus it is not a reviewable interlo cutory order. We need not reach the other two prongs of the collateral order test. See Magic Circle Energy 1981-A Drilling Program v. Lindsey (In re Magic Circle Ene rgy Corp. ), 889 F.2d 950, 954 (10th Cir. 1989) (noting that this court need n ot address all prongs of the test if any one is not satisfied). Because we conclude that the district court’s denia l of Mr. Chisum’s motion is not a final decision nor an appealable co llateral order, we must dismiss this appeal for lack of jurisdiction. We therefore deny the emergency motion for stay. The appeal is DISMISSED and the motion for emergency stay is DENIED.

Entered for the Court PER CURIAM