675 F.2d 17 (2nd Cir. 1982), 597, United States v. Sam Goody, Inc.

Docket Nº:597, 903, Dockets 81-1336, 81-3087.
Citation:675 F.2d 17
Party Name:UNITED STATES of America, Appellant, v. SAM GOODY, INC., and Samuel Stolon, Defendants-Appellees. In re UNITED STATES of America, Petitioner.
Case Date:March 15, 1982
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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675 F.2d 17 (2nd Cir. 1982)

UNITED STATES of America, Appellant,


SAM GOODY, INC., and Samuel Stolon, Defendants-Appellees.

In re UNITED STATES of America, Petitioner.

Nos. 597, 903, Dockets 81-1336, 81-3087.

United States Court of Appeals, Second Circuit

March 15, 1982

Argued Jan. 19, 1982.

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Edward R. Korman, U. S. Atty., E. D. N. Y., Brooklyn (Thomas P. Puccio, Attorney-in-Charge, Organized Crime Strike Force, Lawrence H. Sharf, Sp. Counsel, Brooklyn, N. Y., on the brief), for appellant, petitioner.

William L. Warren, New York City (Dewey, Ballantine, Bushby, Palmer & Wood, New York City, on the brief), for defendant-appellee Sam Goody, Inc.

Martin R. Gold, New York City (Gold, Farrell & Marks, New York City, on the brief), for defendant-appellee Stolon.

Before FEINBERG, Chief Judge, MANSFIELD and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

The United States seeks to appeal pursuant to 28 U.S.C. § 1291 (1976) from an order of the United States District Court for the Eastern District of New York, Thomas C. Platt, Jr., Judge, granting the motions of defendants Sam Goody, Inc. ("Goody"), and Samuel Stolon for a new trial after jury verdicts of guilty on charges of interstate transportation of stolen property in violation of 18 U.S.C. § 2314 (1976) and copyright infringement in violation of 17 U.S.C. § 506(a) (1976). Alternatively, the United States petitions pursuant to 28 U.S.C. § 1651 (1976) for a writ of mandamus directing the district court to reinstate the jury verdicts, enter judgment, and impose sentence. Because neither 28 U.S.C. § 1291 nor any other statutory provision authorizes an appeal by the government from an order granting a new trial in a criminal case, we dismiss the appeal for lack of appellate jurisdiction. Because we conclude that the circumstances of this case do not justify the granting of the extraordinary writ of mandamus, we deny the petition.


The pertinent facts may be summarized briefly. Goody operates a large chain of retail record stores in the New York City area. Stolon was its vice president in charge of procurement. Between June and

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October, 1978, Goody purchased more than 100,000 counterfeit eight-track and cassette tapes, including thousands of copies of the original soundtracks from the films "Saturday Night Fever," "Grease," and "Thank God It's Friday," and of popular recordings such as "The Stranger" by Billy Joel, "Flowing Rivers" by Andy Gibb, and "Slowhand" by Eric Clapton. Most of these counterfeit tapes allegedly were shipped by Goody to an affiliate in Minnesota. On the basis of these events and allegations, Goody and Stolon, along with Goody's president, George Levy, were named as defendants in a sixteen-count indictment charging each of them with one count of racketeering in violation of 18 U.S.C. § 1962(c) (1976) (the "RICO count" 1), three counts of interstate transportation of stolen property in violation of 18 U.S.C. § 2314 (the "transportation counts"), and twelve counts of copyright infringement in violation of 17 U.S.C. § 506(a) (the "copyright counts").

The trial of the case lasted approximately one month. At the conclusion of the government's case, the court entered judgments of acquittal in favor of Goody on the RICO count and six of the copyright counts, in favor of Stolon on the same six copyright counts, and in favor of Levy on all counts. After the close of all the evidence, Goody and Stolon moved to dismiss the remaining counts; the court denied these motions, leaving for submission to the jury the three transportation counts and six copyright counts against Goody, and the same three transportation counts and six copyright counts, plus the RICO count, against Stolon. The jury found Goody guilty on two transportation counts and three copyright counts and acquitted it on the remaining transportation count and three copyright counts. The jury found Stolon guilty on one transportation count and one copyright count and acquitted him on the RICO count, two transportation counts, and five copyright counts.

Each defendant moved, pursuant to Fed.R.Crim.P. 29, for a judgment of acquittal on the counts on which he or it had been found guilty, and moved alternatively, pursuant to Fed.R.Crim.P. 33, for a new trial. In an opinion reported at 518 F.Supp. 1223, familiarity with which is assumed, the court denied the motions for acquittal on the ground that the evidence, viewed in the light most favorable to the government, was sufficient to allow reasonable jurors to find each defendant guilty beyond a reasonable doubt. Id. at 1224. Nevertheless, the court granted the motions for a new trial "in the interest of justice," Fed.R.Crim.P. 33, because of the cumulative effect of three factors. First, the court found that the evidence of interstate transportation of the stolen goods was "slim" and that there was a "distinct risk" that the jury had been improperly influenced by the allegations of the RICO count. 518 F.Supp. at 1225. Second, the court accused the government of improperly delaying the correction of what the court characterized as the "false testimony" of an FBI agent who appeared as a government witness, id. at 1225-26, and found that there was a strong possibility that this "false testimony," which was "before the jury for a long period of time," might have influenced the jury's consideration of the rest of the evidence, id. at 1226. 2

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Third, the court thought it possible that the various unproven charges might have had a "cumulative adverse (e)ffect ... upon the jurors' deliberations." Id. at 1225. The court "believe(d) that there was substantial prejudice suffered by the defendants here as a result of the factors enumerated above," id. at 1226, and concluded that it must "exercise its discretion to order a new trial in the interests of justice," id. at 1225.

The government filed its notice of appeal under 28 U.S.C. § 1291, seeking reversal of the order granting a new trial. Thereafter, recognizing that § 1291 may be inapplicable, the government petitioned for a writ of mandamus under 28 U.S.C. § 1651, ordering the district court to reinstate the guilty verdicts and to enter judgments thereon. We conclude that § 1291 does not authorize the present appeal and that the circumstances do not warrant issuance of mandamus.


Section 1291 provides, in relevant part, that "(t)he courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States...." A final judgment or order is one that conclusively determines the rights of the parties to the litigation, leaving nothing for the court to do but execute the order. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978). " '(T)he final judgment rule is the dominant rule in federal appellate practice,' " DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 657, 7 L.Ed.2d 614 (1962), quoting 6 Moore, Federal Practice 113 (2d ed. 1953), and is designed to prevent the parties from taking piecemeal appeals, leading to judicial inefficiency and unnecessary delay of the conclusion of the litigation.

An order granting a new trial has none of the earmarks of a final decision. It settles no rights between the parties, but instead initiates a new proceeding to determine those rights. Accordingly, such orders have almost uniformly been held interlocutory, 3 and hence nonappealable, both in civil cases, see, e.g., Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980), and in criminal cases, United States v. Hitchmon, 602 F.2d 689,

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692-93 (5th Cir. 1979) (en banc); United States v. Taylor, 544 F.2d 347, 349 (8th Cir. 1976) ("(C)ourts of appeal will entertain appeals only from final judgment and ... an order granting a new trial is not a final judgment."); 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3919, at 331 (Supp.1982) ("An order that merely grants a new trial ... is not subject to appeal by the government ....").

The final judgment requirement is not entirely inflexible, having been tempered by certain exceptions. The principal judge-made exception, articulated by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), is known as the "collateral order" doctrine. Under that doctrine, a small class of orders "which finally determine claims of right separable from, and collateral to, rights asserted in the action," and which are too important and too independent of the cause itself to be denied immediate review, may be appealed under § 1291 before final judgment is entered. Id. at 546, 69 S.Ct. at 1225. The government contends that the new-trial order in the present case is a collateral order within the meaning of the Cohen doctrine.

The Cohen doctrine does have some applicability to criminal cases, Carroll v. United States, 354 U.S. 394, 403-04, 77 S.Ct. 1332, 1338, 1 L.Ed.2d 1442 (1957) (dictum), for although Cohen itself was a civil case, it construed § 1291, which by its terms applies to "all final decisions of the district courts" without differentiation between civil cases and criminal prosecutions. See Arizona v. Manypenny, 451 U.S. 232, 244-45, 101 S.Ct. 1657, 1665-66, 68 L.Ed.2d 58 (1981); Abney v. United States, 431 U.S. 651, 659 n.4, 97 S.Ct. 2034, 2040 n.4, 52 L.Ed.2d 651 (1977). The teaching of the Supreme Court, however, is that interlocutory orders "relating to a criminal case (that) may be found to possess sufficient independence from the main course of the prosecution to warrant treatment as plenary orders .... are very few." Carroll v. United States, supra, 354 U.S. at 403, 77 S.Ct. at 1338. Thus, the Carroll Court noted only one prior Supreme Court decision expressly applying the Cohen reasoning to a criminal case, to wit,...

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