U.S. v. Gregory, s. 80-7642

Citation656 F.2d 1132
Decision Date25 September 1981
Docket NumberNos. 80-7642,80-7644,s. 80-7642
PartiesUNITED STATES of America, Plaintiff-Appellee, v. E. A. GREGORY and Vonna Jo Gregory, G. W. Atkinson and Robert T. Spurlock, Jr., Defendants-Appellants. . Unit B
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Sonnenschein & Rosenthal, James F. Holderman, John I. Grossbart, Chicago, Ill., for E. A. Gregory and Vonna Jo Gregory.

Roger M. Sherman, Pensacola, Fla., for Atkinson and Spurlock, Jr.

W. A. Kimbrough, U. S. Atty., Mobile, Ala., Mervyn Hamburg, Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Alabama.

Before TUTTLE, RONEY and ANDERSON, Circuit Judges.

RONEY, Circuit Judge:

On this interlocutory appeal, defendants challenge the denial of two pretrial motions in which they sought first, the dismissal of the indictment on the ground of prosecutorial vindictiveness, and second, the disqualification of the trial judge because of bias, 508 F.Supp. 1218. Defendants petition in the alternative for a writ of mandamus ordering recusal of the trial judge. We hold that an interlocutory appeal does not lie from either of the rulings by the district court, and that defendants fail to show the exceptional circumstances necessary to support a writ of mandamus.

The appealability of the district court's denial of the two motions is governed by 28 U.S.C.A. § 1291. That statute adopts a rule of finality, by which Congress has provided the courts of appeals with jurisdiction to review only "final decisions of the district courts." See generally Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978); Catlin v. United States 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911 (1945).

Consistent with the congressional intent expressed in section 1291, a firm judicial policy exists against interlocutory or "piecemeal" appeals. As the Supreme Court stated:

This rule, that a party must ordinarily raise all claims of error in a single appeal following final judgment on the merits, serves a number of important purposes. It emphasizes the deference that appellate courts owe to the trial judge as the individual initially called upon to decide the many questions of law and fact that occur in the course of a trial. Permitting piecemeal appeals would undermine the independence of the District Judge, as well as the special role that individual plays in our judicial system. In addition, the rule is in accordance with the sensible policy of "avoid(ing) the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment." (citation omitted). The rule also serves the important purpose of promoting efficient judicial administration.

Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981). See also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). This rule of finality is particularly in force in criminal prosecutions because "encouragement of delay is fatal to the vindication of the criminal law." United States v. MacDonald, 435 U.S. 850, 854, 98 S.Ct. 1547, 1549, 56 L.Ed.2d 18 (1978) (quoting Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940)).

The Supreme Court, however, has recognized a narrow exception to the rule of finality, which it first articulated in the oft-cited case of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The Cohen exception was designed to permit the immediate appeal of collateral matters that could not be reviewed effectively on appeal from the final judgment.

The Court has held a pretrial order denying a motion to dismiss the indictment on double jeopardy grounds is appealable within the Cohen collateral-order exception. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). It reasoned the right against double jeopardy was not only to be free from subsequent convictions but also from successive prosecutions, and this right would be irreparably lost if the appeal from the order denying the claim awaited final judgment. The Court, however, expressly held its ruling did not extend to other claims presented in a motion to dismiss an indictment:

In determining that the courts of appeals may exercise jurisdiction over an appeal from a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds, we, of course, do not hold that other claims contained in the motion to dismiss are immediately appealable as well. Our conclusion that a defendant may seek immediate appellate review of a district court's rejection of his double jeopardy claim is based on the special considerations permeating claims of that nature which justify a departure from the normal rule of finality. Quite obviously, such considerations do not extend beyond the claim of former jeopardy and encompass other claims presented to, and rejected by, the district court in passing on the accused's motion to dismiss.

431 U.S. at 662-63, 97 S.Ct. at 2042 (citation omitted). To be appealable, then, the denial must infringe upon a right which, because of its unique nature, can only be protected by immediate review.

The Supreme Court has considered the issue of immediate review in two later criminal cases. In Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979), the Court held a Congressman was entitled to an interlocutory appeal of the refusal to dismiss an indictment on the ground it violated the Speech or Debate Clause, because that clause protected the right to be free from litigation arising out of conduct on the floor of Congress. In United States v. MacDonald 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978), on the other hand, the Court held that where the motion to dismiss the indictment rests on a speedy trial claim, there is no right to an immediate appeal. The Court reasoned that unlike the double jeopardy claim in Abney, the speedy trial claim was not a right "the legal and practical value of which would be destroyed if it were not vindicated before trial." Id. at 860, 98 S.Ct. at 1552.

With these Supreme Court principles in mind, we turn to the particular claims presented in the instant case.

1. Motion to Dismiss the Indictment

Defendants, G. W. Atkinson, Robert Spurlock, E. A. Gregory and his wife, Vonna Jo, were indicted in May 1980 by a federal grand jury for conspiracy, wire fraud and willful misapplication of bank funds. 18 U.S.C.A. §§ 371, 656, 1343. The charges arose out of the 1978 financial collapse of the Wilcox County Bank of Camden, Alabama, of which defendants were officers and directors.

In a motion to dismiss the indictment, defendants claimed "prosecutorial vindictiveness," indicated by comments the prosecutor allegedly made to them to the effect he was "after" them, by the continuing efforts of agents of the Federal Deposit Insurance Corporation (FDIC) to obtain state and federal indictments against them, and by various pretrial legal maneuvers taken by the prosecutor. The district court denied their motion to dismiss without an evidentiary hearing.

Defendants' claim of prosecutorial vindictiveness does not seek to protect a right the special nature of which presents a compelling need for immediate review, and therefore does not fall within the Cohen exception. Defendants fail to establish how "the legal and practical value" of their rights would be destroyed if their challenge to the denial of the motion must await final appeal. Such claims can be and are often heard on appeal from a conviction. See, e. g., United States v. Hanna, 639 F.2d 192 (5th Cir. 1980); United States v. Thomas, 617 F.2d 436 (5th Cir. 1980), cert. denied, 449 U.S. 841, 101 S.Ct. 120, 66 L.Ed.2d 48 (1980); United States v. Lichenstein, 610 F.2d 1272 (5th Cir. 1980), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 856 (1980); United States v. Johnson, 577 F.2d 1304 (5th Cir. 1978); United States v. Smith, 523 F.2d 771 (5th Cir. 1975), cert. denied, 429 U.S. 817, 97 S.Ct. 59, 50 L.Ed.2d 76 (1976). Cf. United States v. Wright, 622 F.2d 792 (5th Cir. 1980), cert. denied, 449 U.S. 961, 101 S.Ct. 376, 66 L.Ed.2d 229 (1980) (none of defendant's specific claims of prosecutorial misconduct fall within the Cohen exception because they may be cured at retrial or effectively reviewed on appeal). Moreover, to the extent defendants focus their objection on the court's failure to hold an evidentiary hearing on their claims, there is even less basis for appellate intrusion at this point. It is well established a district court has discretion to deny a hearing where defendants present mere conclusory allegations of prosecutorial vindictiveness. See, e. g., United States v. Duncan, 598 F.2d 839, 869 (4th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979); United States v. Brown, 591 F.2d 307, 311-12 (5th Cir.), cert. denied, 442 U.S. 913, 99 S.Ct. 2831, 61 L.Ed.2d 280 (1979); United States v. Bourque, 541 F.2d 290, 292-93 (1st Cir. 1976). Cf. In re Grand Jury Proceedings, 632 F.2d 1033, 1038-40 (3d Cir. 1980) (district court order denying evidentiary hearing on unauthorized grand jury disclosures is not immediately appealable).

The Court of Appeals for the District of Columbia recently considered the identical issue of appealability in United States v. Brizendine, 659 F.2d 215 (D.C.Cir. 1981). In that case defendants, who were corporate officers, moved for the dismissal of their indictments on the ground of prosecutorial vindictiveness. They alleged the prosecutor improperly sought the indictments in retaliation for their rejection of a plea bargaining arrangement for the corporation,...

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