Stein v. U.S., 86-776.

• Citation: 532 A.2d 641
• Decision Date: 15 October 1987
• Docket Number: No. 86-776.,86-776.
• Parties: Charles J. STEIN, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

532 A.2d 641

Charles J. STEIN, Jr., Appellant, v. UNITED STATES, Appellee.

No. 86-776.

District of Columbia Court of Appeals.

Argued April 14, 1987.

Decided October 15, 1987.

Stephen L. Braga, with whom Herbert J. Miller, Jr., and William W. Greenhalgh, Washington, D.C., were on the brief, for appellant.

Laura Ross Blumenfeld, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Kenneth W. Cowgill, and Silvia L. Gonzalez, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before MACK, TERRY and ROGERS, Associate Judges.

TERRY, Associate Judge:

Appellant Stein was charged with one count of carrying a pistol without a license,¹ two counts of possession of an unregistered firearm,² one count of possession of ammunition without a registration certificate,³ and two counts of possession of a prohibited weapon.⁴ Stein moved before trial to dismiss all of these charges, asserting inter alia that he was immune from prosecution under D.C.Code § 6-2375(a) (1981). The motion was denied after a hearing, and Stein noted this appeal. The government has moved to dismiss the appeal for lack of jurisdiction. We hold that we have jurisdiction to decide the immunity issue, and to that extent we deny the government's motion. We agree, however, that we lack jurisdiction in this pretrial appeal to consider the other issues which Stein raises. On the merits of the immunity question, we hold that Stein is not immune from prosecution, and thus we affirm the trial court's ruling.

I

Charles Stein, a retired police captain from California, now works as a security specialist and private investigator.⁵ On several occasions, beginning in the early 1970's, he has performed various professional services for Senator Edward M. Kennedy. In the latter part of 1985 he was asked to travel with Senator Kennedy on a thirteen-day tour of South America and to ensure the Senator's protection throughout the trip, beginning in January 1986.

On January 6 Stein flew from his home in California to Dulles International Airport in Virginia to meet with the Senator and his entourage in preparation for the South American trip. From the airport Stein went to Senator Kennedy's home in McLean, Virginia, where a briefing conference was to be held the next morning. Originally it had been expected that the traveling party would go directly to the airport from the Senator's home. However, because the Senator had some lastminute business to do at his office on Capitol Hill, the departure plans were changed; it was agreed that everyone would leave from the Senator's office in the District of Columbia.

On January 7 Stein went with one of the Senator's aides by car to Capitol Hill. Stein was carrying with him two guns which he intended to take with him to South America in his capacity as a bodyguard on the trip. The weapons were unloaded, separated, and secured in a small canvas bag, along with a quantity of ammunition. Before entering the Russell Senate Office Building, where Senator Kennedy's office was located, Stein and the Senator's aide discussed what should be done with the weapons. They both agreed that the best thing to do would be to bring the weapons and ammunition into the building and leave them at the guard's desk while the two of them visited the Senator's office.

Stein entered the building, approached the Capitol Police officer's desk just inside the entrance, and identified himself as a security officer for Senator Kennedy. He told the officer that he had two unloaded guns and some ammunition in the bag and asked permission to leave them at the officer's desk. The officer asked whether Stein had a license to carry his weapons in the District of Columbia. Stein replied that he did not have such a license for the District of Columbia⁶ and explained the limited purpose of his visit. Despite his explanation, he was placed under arrest by the Capitol Police for violating District of Columbia firearms laws.

After being arraigned, Stein was released on his own recognizance to accompany Senator Kennedy to South America. He later authorized his attorneys to inform the government that he "would formally relinquish" any interest he might have in the weapons.

II

At the outset we must decide whether we have jurisdiction to review, in a pre-trial appeal, the trial court's ruling that Stein was not immune from prosecution under D.C. Code § 6-2875(a) (1981). We hold that we do have such jurisdiction under a narrow but well recognized exception to the rule against appeals from non-final orders.

By statute this court has jurisdiction of appeals from all final orders and judgments of the Superior Court. D.C.Code § 11-721(a)(1) (1981).⁷ The trial court's order in this case is obviously not final, since the charges against Stein are still pending, and no ultimate judgment on the merits has been entered. The Supreme Court, however, has created a narrow exception to the rule of finality as a predicate for appellate jurisdiction. In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), the Court recognized a "small class" of appealable, albeit non-final, orders "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 appellate consideration be deferred until the whole case is adjudicated." Id. at 546. The courts of the District of Columbia have long recognized this "collateral order" doctrine. See, e.g., United States v. Harrod, 428 A.2d 30 (D.C. 1981) (en banc); Choco v. United States, 383 A.2d 333 (D.C. 1978); United States v. Perkins, 140 U.S.App. D.C. 76, 433 F.2d 1182 (1970).

The requirements of the doctrine are stringent and difficult to meet. In criminal cases especially, the collateral order exception to the final judgment rule is strictly construed:

To come within this "narrow exception" . . . a trial court order must, at a minimum, meet three conditions. First, it "must conclusively determine the undisputed question"; second, it must "resolve an important issue completely separate from the merits of the action"; third, it must "be effectively unreviewable on appeal from a final judgment."

Flanagan v. United States, 465 U.S. 259, 265, 104 S.Ct. 1051, 1055, 79 L.Ed.2d 288 (1984) (citations omitted). We hold that the trial court's rejection of Stein's immunity claim meets all three of these tests.

The first requirement, whether a disputed question has been conclusively determined, has been satisfied in this case. The disputed question is whether Stein is immune from prosecution under D.C. Code § 6-2375(a). The trial court has conclusively ruled on that question, and its ruling has become the law of the case, not subject to reconsideration before final judgment (with certain limited exceptions not pertinent here). See Kaplan v. Pointer, 501 A.2d 1269, 1270 (D.C. 1985) (citing cases); United States v. Allen, 337 A.2d 512 (D.C. 1975). The second requirement has also been satisfied: the challenged ruling on the immunity issue is completely separate from the merits of the criminal prosecution. The Supreme Court "has recognized that a question of immunity is separate from the merits of the underlying action . . . even though a reviewing court must consider the plaintiff's factual allegations in resolving the immunity issue." Mitchell v. Forsyth, 472 U.S. 511, 528-529, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985) (footnote omitted).

The government argues that the immunity issue is not separate from the merits because the statute on which Stein relies, D.C.Code § 6-2375(a), provides a defense on the merits of the criminal charges. The government's brief states that the "essential protection" of the statute is "against conviction of one whose possession was solely in order to surrender the firearm to police custody. . . . Appellant's right to avoid prosecution under § 6-2375(a), if in fact that right is established, can be vindicated by an acquittal at trial or on appeal." [Emphasis in original.] This argument ignores the plain language of the statute. Section 6-2375(a) expressly provides that compliance with its provisions "shall preclude the arrest and prosecution" of persons who voluntarily surrender their firearms. This provision of the Code does not merely provide a defense to a criminal charge; rather, it "specifically prevents the arrest or prosecution" of anyone to whom it applies. Kuhn v. Cissel, 409 A.2d 182, 186 (D.C. 1979).⁸

This leads us directly to the third requirement of the collateral order doctrine, namely, that the ruling will be effectively unreviewable on appeal from a final judgment. It necessarily follows from what we have just said that this requirement is met here as well. Although it is too late to prevent Stein's arrest, his right to avoid prosecution (if he has such a right) cannot be "vindicated by an acquittal at trial or on appeal," as the government asserts. "When that time comes, it will be too late effectively to review the present order, and the rights conferred by the statute, if it is applicable, will have been lost, probably irreparably." Cohen v. Beneficial Industrial Loan Corp., supra, 337 U.S. at 546, 69 S.Ct. at 1225. The Supreme Court's holding in Mitchell v. Forsyth, supra, supports our conclusion:

The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Accordingly, the reasoning that underlies the immediate appealability of an order denying absolute immunity indicates to us that the denial of qualified immunity should be similarly appealable: in each case, the district court's decision is effectively unreviewable on appeal from a final judgment.

472 U.S. at 526-527, 105 S.Ct. at 2816 (emphasis in original).⁹ The question of whether Stein is immune is ...