617 F.2d 1342 (9th Cir. 1980), 79-1513, United States v. Griffin

Docket Nº:79-1513.
Citation:617 F.2d 1342
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Douglas GRIFFIN, Defendant-Appellant.
Case Date:March 06, 1980
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1342

617 F.2d 1342 (9th Cir. 1980)

UNITED STATES of America, Plaintiff-Appellee,


James Douglas GRIFFIN, Defendant-Appellant.

No. 79-1513.

United States Court of Appeals, Ninth Circuit

March 6, 1980

Rehearing Denied May 22, 1980.

Page 1343

David M. Heller, Phoenix, Ariz., for defendant-appellant.

D. Danneman, Asst. U. S. Atty., Phoenix, Ariz., for the U. S.

Appeal from the United States District Court for the District of Arizona.

Before TRASK and KENNEDY, Circuit Judges, and KELLEHER [*], District Judge.

KELLEHER, District Judge:

Griffin appeals the District Court's order denying his motion to dismiss the indictment on the grounds of vindictive prosecution. We must determine if such an order may be appealed, before trial, as a final decision within the meaning of 28 U.S.C. § 1291. If it is subject to an interlocutory appeal, we must then decide whether the trial court erred in refusing to dismiss the indictment.

In September, 1976, the Labor-Management Services Administration learned of evidence that the defendant may have embezzled funds during his tenure as the Financial Secretary for the Roofer's Union Local 135, and the Coordinator for the Phoenix Roofing Industry Joint Apprenticeship Committee (hereinafter referred to as "JAC"). Thereafter, an intensive investigation by officers of the Department of Labor culminated in an indictment on March 22, 1979, charging Griffin with 35 counts of embezzlement in violation of 18 U.S.C. § 664 and 29 U.S.C. § 501(c). United States v. James Douglas Griffin, CR 79-77-PHX-WPC (D.Ariz.) (hereinafter referred to as "Griffin I ").

During the period of the initial investigation in Griffin I, investigators of the Department of Labor discovered evidence that Griffin may also have defrauded the Veterans Administration by falsely certifying that one Casey was receiving full-time JAC training. Finding itself without jurisdiction over the matter, the Department of Labor reported these findings to the United States Attorney in November of 1978. At the request of the United States Attorney, the FBI conducted an investigation into the alleged Veterans Administration fraud, and summarized its findings in a report sent to the prosecutor on April 11, 1979.

On April 27, 1979, the defendant learned that handwritten notes of government agents taken during interviews with witnesses in Griffin I had been destroyed. These notes had been requested as possible Jencks Act material, pursuant to United States v. Harris, 543 F.2d 1247 (9th Cir. 1976), and Rule 16 of the Federal Rules of Criminal Procedure. On May 4, 1979, the defendant filed four motions in Griffin I relating to the destruction of the government notes, including a motion to dismiss the indictment.

On May 9, 1979, five days after Griffin filed his motions in Griffin I, the indictment in this case was returned, which charged the defendant with twelve counts of mail fraud in violation of 18 U.S.C. § 1341, and one count of false statements in violation of 18 U.S.C. § 1001. United States v. James Douglas Griffin, CR 79-128-PHX-WPC (D.Ariz.) (hereinafter referred to as "Griffin II "). The indictment stemmed from the investigation into Griffin's alleged fraud on the Veterans Administration.

On May 15, 1979, the trial judge entered an order dismissing the indictment in Griffin I because of the failure of the government to preserve handwritten notes. Thereafter, the defendant filed a motion to dismiss the indictment in Griffin II on the grounds of vindictive prosecution. The motion was denied by the district judge and is before us on this appeal.

Page 1344

Interlocutory Appeal under 28 U.S.C. § 1291

The threshold inquiry in this case is whether the District Court's denial of the defendant's motion to dismiss the indictment on the grounds of vindictive prosecution is immediately appealable under 28 U.S.C. § 1291. That statute grants the Courts of Appeal jurisdiction to review all "final decisions of the district courts," both civil and criminal. 1

The consistent and long-standing policy of the federal judiciary has been to avoid the practice of interlocutory or piecemeal appellate review. See, e. g., United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978); Di Bella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). This policy has particular force in criminal cases, in which the absence of delay is often essential to the proper functioning of the justice system. Thus, the Supreme Court has frequently reiterated the traditional requirement of a final judgment as a predicate to federal appellate jurisdiction. See, Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977); Di Bella v. United States, 369 U.S. at 126, 82 S.Ct. at 658 (1962). The statutory basis for federal appellate jurisdiction, 28 U.S.C. § 1291, clearly encompasses the rule of finality in both language and purpose. In certain cases, however, the "final decision" requirement of that statute has been held not to require a final judgment which actually terminates the entire proceeding. The basis for this departure from the traditional rule has been the so-called "collateral-order" exception first articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

Cohen was a stockholders derivative suit in which the question arose whether a newly-enacted state statute which required the posting of security applied in federal court. The order of the district court that the posting of security was not required was held to be immediately appealable as a final decision within the meaning of 28 U.S.C. § 1291.

The Court established essentially three requirements for application of the "collateral-order" exception. First, there had to be a complete and final determination of the issue in the district court. No appeal may be taken if the matter was left "open, unfinished or inconclusive." 337 U.S. at 546, 69 S.Ct. at 1225. Second, the decision could not be simply a "step toward final disposition of the merits of the case (that would) be merged in final judgment"; rather, it must resolve an...

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