U.S. v. Bilsky

• Decision Date: 24 November 1981
• Docket Number: 81-5149,Nos. 81-5148,s. 81-5148
• Citation: 664 F.2d 613
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sidney Marvin BILSKY, Robert Clyde Lovell, Joyce Elaine Lovell, Defendants-Appellants. Sidney Marvin BILSKY, Robert Clyde Lovell and Joyce Elaine Lovell, Petitioners, v. UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE AT MEMPHIS, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 613

664 F.2d 613

UNITED STATES of America, Plaintiff-Appellee, v. Sidney Marvin BILSKY, Robert Clyde Lovell, Joyce Elaine

Lovell, Defendants-Appellants.

Sidney Marvin BILSKY, Robert Clyde Lovell and Joyce Elaine

Lovell, Petitioners, v. UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE

AT MEMPHIS, Respondent.

Nos. 81-5148, 81-5149.

United States Court of Appeals Sixth Circuit.

Argued June 12, 1981.

Decided Nov. 24, 1981.

A. G. Burkhart, Jr., Kemper Durand, Rosenfield, Borod & Kremer, Memphis, Tenn., for defendants-appellants.

W. Hickman Ewing Jr., U. S. Atty., Devon Gosnell, Asst. U. S. Atty., Memphis, Tenn., for plaintiff-appellee.

Before EDWARDS, Chief Judge, ENGEL, Circuit Judge, and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

The principal issue in this case is whether the district court's denial of a motion to dismiss the indictment for violation of the Speedy Trial Act is appealable prior to trial. We conclude that such a denial fails to fall within the "collateral order" exception pronounced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and is, therefore, not an appealable decision. Accordingly, we dismiss the appeal for lack of jurisdiction; we also reject the claim for mandamus relief.

I.

On May 13, 1980, a federal grand jury in the Western District of Tennessee returned an indictment against the appellants, Robert Clyde Lovell, Joyce Elaine Lovell, Sidney Marvin Bilsky, and three other defendants, charging them with conspiracy and transportation of stolen merchandise in excess of $5,000.00 in interstate commerce. See 18 U.S.C. Section 2314. A superseding indictment was returned on September 22, 1980, charging appellants with conspiracy and receiving stolen merchandise in excess of $5,000 in interstate commerce. See 18 U.S.C. Section 2315. The different charges arose from the same circumstances.

On November 18, 1980, the original indictment was dismissed on the government's motion and trial commenced on the September indictment. That trial was terminated and a mistrial declared on November 28, 1980. A written order declaring a mistrial was entered by the district court on December 4, 1980. A motion for a judgment of acquittal was filed on behalf of all defendants on December 5, 1980; the district court denied the motion on December 9, 1980.

On January 15, 1981, the district court denied the appellants' motions to dismiss the indictment for failure to grant a speedy trial. In their motion the Lovells had argued that more than 180 days had elapsed since the original indictment was returned on May 13, 1981, and that the date of the filing of the superseding indictment related back to the date of the filing of the original indictment under 18 U.S.C. Section 3161(d)(1).

On February 17, 1981, the case was set for retrial on March 9, 1981. On February 26, 1981, the Lovells filed another motion to dismiss for failure to comply with the Speedy Trial Act. Bilsky filed a similar motion on February 27, 1981. In those motions the appellants argued, in contradiction to their earlier argument, that the September 22 superseding indictment was the only relevant indictment, and that since the case had not been set for retrial within 70 days of the date on which the order declaring the mistrial was entered as required by the Speedy Trial Act, dismissal of the indictment was mandated. The district court denied the motions to dismiss and entered a written order to that effect on March 3, 1981. First, the court concluded that the time of filing of the superseding indictment related back to the date of the original indictment of May 13, 1980. Since the sanctions to be imposed for failure to comply with the provisions of the Speedy Trial Act were applicable only to indictments returned "on or after July 1, 1980," they were not relevant to the present case. Second, the court held that the plan for "Suspension of Speedy Trial Limits" in the Western District of Tennessee as approved by the Judicial Council of the Sixth Circuit provided that a retrial after a mistrial could be held within 180 days of the mistrial, and therefore the retrial schedule for March 9, 1981 was timely. And third, Judge McCrae found that even if the retrial should have been held within 70 days of the mistrial, the confusion created in the Western District of Tennessee regarding the suspension of the Speedy Trial Act sanctions dictated that the "interests of justice" would best be served by determining the period between 70 days after the mistrial and March 9, 1981, to constitute excludable delay.

On March 4, 1981, the Lovells and Bilsky filed a notice of appeal from the order denying their motion to dismiss; the Lovells also filed a petition for a writ of mandamus. On March 5, 1981, the district court conducted a hearing on the status of the case and ruled that the trial would proceed on March 9, 1981. That same day the appellants filed a petition for a stay or extraordinary writ seeking to prevent the case from going to trial on March 9, 1981. This court granted the stay so that the district court would have an opportunity to rule on the motion for a stay. After a hearing on the motion, the district court denied the application for a stay on March 16, 1981. On April 3, 1981 we directed that the appeal in Case No. 81-5148 (Bilsky) and the appeal and mandamus petition in Case No. 81-5149 (Lovells) be presented to and considered by a panel of this court.

II.

As a threshold matter we must determine whether the order denying appellants' motions to dismiss the indictment because of a violation of the Speedy Trial Act is appealable prior to trial. The right of appeal in a criminal case "is purely a creature of statute," Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977), and the applicable statute in this case restricts this court's appellate jurisdiction to appeals taken from "all final decisions of the district courts ...." 28 U.S.C. Section 1291 (1976). The prerequisite of a "final decision" reflects a congressional policy to promote efficient judicial administration by avoiding the delays and disruptions inherent in interlocutory or "piecemeal" appeals. The finality requirements assumes special significance in criminal cases where swift and efficient administration of justice is in the interest of both society and accused. As the Supreme Court has emphasized, "the rule of finality has particular force in criminal prosecutions because encouragement of delay is fatal to the vindication of the criminal law." United States v. McDonald, 435 U.S. 850, 853-54, 98 S.Ct. 1547, 1548-49, 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). See also Abney v. United States, supra, 431 U.S. at 657, 97 S.Ct. at 2039; DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 657, 7 L.Ed.2d 614 (1962).

As a general rule, a pretrial order denying a defendant's motion to dismiss an indictment is not an appealable "final decision" under Section 1291. See e.g. United States v. Sisk, 629 F.2d 1174, 1180 (6th Cir. 1980). ¹ This rule, however, is easier stated than applied. Indeed, the Supreme Court has recognized the problems inherent in the operation of the finality requirement, stating in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974), that "(n)o verbal formula yet devised can explain prior finality decisions with unerring accuracy or provide an utterly reliable guide for the future."

On several occasions the Supreme Court has departed from the rule that finality is required as a predicate for federal appellate jurisdiction. In criminal cases those departures have involved fundamental rights where the order of the district court "finally determined claims of rights separate 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." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed.2d 1528 (1949). The Supreme Court in Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), summarized the three requirements of the Cohen collateral order doctrine. To be appealable, a district court's order must 1) conclusively decide the disputed issue; 2) resolve an important issue separate and independent from the merits of the action; and 3) be effectively unreviewable on appeal from a final judgment. Id. at 468-69, 98 S.Ct. at 2457-58. In Coopers & Lybrand, the Court applied these criteria and held a district court's order denying class certification to be non-appealable because 1) the district court could subsequently revise the order; 2) the class determination involved consideration of factors intertwined with the merits of the action; and 3) effective review after final judgment was available. Id. at 469, 98 S.Ct. at 2458.

Application of the Cohen criteria to a double jeopardy claim produced a different result in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). There the Court concluded that a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds was a collateral order that fell within the "small class of cases" that are exceptions to the finality requirement. First, the Court noted that a pretrial order denying the motion to dismiss was a complete and final rejection by the trial court of the claim. Second, a double jeopardy claim was collateral to and independent of the merits of the case, i. e., guilt to innocence. Most important, the Court emphasized that the double jeopardy claim involved an important right which would be irreparably lost if appellate review had to await adjudication on the merits. The rights conferred on an accused by the Double...