U.S. v. Wood, 91-2007

Citation950 F.2d 638
Decision Date20 November 1991
Docket Number91-2008,Nos. 90-2184,No. 91-2007,91-2007,s. 90-2184
PartiesUNITED STATES of America, Plaintiff-Appellant and Cross-Appellee, v. Paul D. WOOD, Defendant-Appellee and Cross-Appellant. Related
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Patty Merkamp Stemler, U.S. Dept. of Justice, Appellate Section, Crim. Div., Washington D.C., for plaintiff cross-appellee.

Wallace Kleindienst, Sp. Asst. U.S. Atty., Phoenix, Ariz. (William Lutz, U.S. Atty., Albuquerque, N.M., with him, on the brief) for plaintiff-appellant on related appeal no. 90-2184.

Linda A. Akers, U.S. Atty., Phoenix, Ariz. (William Lutz, U.S. Atty., Albuquerque, N.M., and Wallace Kleindienst, Sp. Asst. U.S. Atty., Phoenix, Ariz., with her, on the brief) for plaintiff-appellant on related appeal no. 91-2008.

David L. Norvell, Albuquerque, N.M., for defendant cross-appellant and appellee in related appeals.

Before McWILLIAMS, BALDOCK and EBEL, Circuit Judges.

PER CURIAM.

Defendant was indicted on two counts relating to statements he made to F.B.I. agents. Count one charged defendant with false statements, 18 U.S.C. § 1001, and count two charged defendant with obstruction of justice. 18 U.S.C. § 1503. At the close of the government's case, the district court dismissed count two for failure to state an offense. The government's appeal of the dismissal of count two is the subject of a related appeal (no. 90-2184). The jury found defendant guilty on count one. Subsequently, defendant moved for a judgment of acquittal due to insufficient evidence and for a new trial due to the jury's exposure to extraneous material during its deliberations. The district court denied defendant's motion for a judgment of acquittal and granted defendant's motion for a new trial. The government's appeal of the district court's order granting defendant a new trial is also the subject of a related appeal (no. 91-2008). Defendant's appeal from the district court's order denying his motion for a judgment of acquittal (no. 91-2007) has been designated as a cross-appeal. See Fed.R.App.P. 28(h). In his cross-appeal, defendant contends that there was insufficient evidence for the jury to convict, and that because the special verdict was based on only one of six false statements alleged in the count, the Double Jeopardy Clause precludes his retrial on the remaining five false statements. The government moves to dismiss the cross-appeal for lack of jurisdiction. 1 10th Cir.R. 27.2.1.

"The courts of appeals ... have jurisdiction of appeals from all final decisions of the district courts of the United States...." 28 U.S.C. § 1291 (emphasis added). The policies underlying the jurisdictional prerequisite of a final decision "reflect a determination that, on balance, postponing appeal until a final judgment is reached both conserves judicial resources and protects the interests of the litigants in a fair and accessible process." 3 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure, § 26.2, at 184 (1984). "The purpose of the finality requirement is to avoid piecemeal disposition of the basic controversy in a single case 'where the result of review will be to halt in the orderly progress of a cause and consider incidentally a question which has happened to cross the path of such litigation....' " Stack v. Boyle, 342 U.S. 1, 12, 72 S.Ct. 1, 7, 96 L.Ed. 3 (1951) (quoting Cobbledick v. United States, 309 U.S. 323, 326, 60 S.Ct. 540, 542, 84 L.Ed. 783 (1940)). "Adherence to this rule of finality has been particularly stringent in criminal prosecutions because 'the delays and disruptions attendant upon intermediate appeal,' which the rule is designed to avoid, 'are especially inimical to the effective and fair administration of the criminal law.' " Abney v. United States, 431 U.S. 651, 657, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977) (quoting DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 658, 7 L.Ed.2d 614 (1962)). See also Cobbledick, 309 U.S. at 325, 60 S.Ct. at 541.

Generally, "[i]n criminal cases ... the judgment is final for the purpose of appeal when it terminates the litigation on the merits and leaves nothing to be done but to enforce by execution what has been determined." Berman v. United States, 302 U.S. 211, 212-13, 58 S.Ct. 164, 165-66, 82 L.Ed. 204 (1937) (internal quotations and citations omitted). See also Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 1053, 79 L.Ed.2d 288 (1984); Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L.Ed. 1377 (1956); United States v. Thompson, 814 F.2d 1472, 1474 (10th Cir.), cert. denied, 484 U.S. 830, 108 S.Ct. 101, 98 L.Ed.2d 61 (1987). However, 28 U.S.C. § 1291 does not limit our jurisdiction to "those final judgments which terminate an action." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). "[I]t is a final decision that Congress has made reviewable. While a final judgment is always a final decision, there are instances in which a final decision is not a final judgment." Stack, 342 U.S. at 12, 72 S.Ct. at 7.

Certain collateral orders in criminal cases will be considered final decisions for the purpose of conferring appellate jurisdiction. See Richardson v. United States, 468 U.S. 317, 322, 104 S.Ct. 3081, 3084, 82 L.Ed.2d 242 (1984) (order denying motion for a judgment of acquittal and to bar subsequent prosecution on double jeopardy grounds); Abney, 431 U.S. at 662, 97 S.Ct. at 2041 (order denying motion to dismiss on double jeopardy grounds); Stack, 342 U.S. at 6, 72 S.Ct. at 6 (order denying motion to reduce bail). The collateral order doctrine permits an interlocutory appeal of an order that conclusively determines a disputed issue, is collateral to the merits of the case, and is effectively unreviewable on appeal from a final judgment. Abney, 431 U.S. at 658, 97 S.Ct. at 2039. See also Cohen, 337 U.S. at 546, 69 S.Ct. at 1225.

Applying the collateral order doctrine's three-part test to defendant's issues on cross-appeal as indicated by his response to the present motion, we hold that the district court's denial of defendant's motion for a judgment of acquittal is a final decision within the meaning of 28 U.S.C. § 1291. First, the district court's denial of defendant's motion "constitut[ed] a complete, formal, and, in the trial court, final rejection of a criminal defendant's double jeopardy claim." Abney, 431 U.S. at 659, 97 S.Ct. at 2040. Second, double jeopardy claims, by their "very nature ... [are] collateral to, and separable from, the principal issue ... [of] whether or not the accused is guilty of the offense charged." Id. "While consideration of [defendant's] double jeopardy claim would require the appellate court to canvass the sufficiency of the evidence at the first trial, this fact alone does not prevent the District Court's order denying [defendant's] double jeopardy claim from being appealable." Richardson, 468 U.S. at 322, 104 S.Ct. at 3084. Finally, our failure to exercise jurisdiction would effectively preclude review of defendant's claim that his double jeopardy "guarantee against being twice put to trial for the same offense" would be violated by a retrial. Abney, 431 U.S. at 661, 97 S.Ct. at 2041 (original emphasis). If defendant is denied appellate review of his double jeopardy claim until after the second trial, the possible violation his double jeopardy right not to be tried twice for the same offense could never be effectively remedied.

In addition to defendant's claim being based on a final decision by virtue of the collateral order doctrine, the policy underlying the final decision requirement of 28 U.S.C. § 1291 would not be advanced by denying defendant appellate review of his double jeopardy claim at this stage in the proceedings. The government has two appeals pending. Therefore, defendant's appeal will not lead to further delay in the administration of justice. Further, one of the government's appeals challenges the order granting defendant a new trial on the same count on which defendant's double jeopardy claim is based. Accordingly, the issues raised in defendant's cross-appeal are intertwined with the issues raised in the government's appeal. Our "practical rather than a technical construction" of 28 U.S.C. § 1291, Cohen, 337 U.S. at 546, 69 S.Ct. at 1225, in light of its underlying policy leads us to conclude that the order denying defendant's motion for a judgment of acquittal is a final decision for purposes of appellate jurisdiction.

In both Abney and Richardson, the government argued that permitting interlocutory appeals on double jeopardy claims would delay the administration of justice thereby contravening the policy underlying 28 U.S.C. § 1291 which is "especially inimical" to criminal cases. In Abney, the Court suggested that such a problem could be avoided through "summary procedures and calenders to weed out frivolous claims of former jeopardy." 431 U.S. at 662 n. 8, 97 S.Ct. at 2042 n. 8. In Richardson, the Court reaffirmed this practice and indicated that "the appealability of a double jeopardy claim depends upon its being at least 'colorable.' " 468 U.S. at 322, 104 S.Ct. at 3084 (quoting United States v. MacDonald, 435 U.S. 850, 862, 98 S.Ct. 1547, 1553, 56 L.Ed.2d 18 (1978)).

The crux of the government's argument is that we do not have appellate jurisdiction because defendant has not raised a colorable double jeopardy claim. The government's argument confuses our jurisdictional authority to hear an appeal with our supervisory power summarily to dismiss frivolous claims. Every district court order denying a double jeopardy claim is, by its nature, a final decision due to the collateral order doctrine. The summary determination of whether a defendant has raised a colorable claim is not necessary to our jurisdiction. Rather, it is a discretionary action within our "supervisory powers" to ensure that defendants do not engage in "dilatory appeals." Abney, 431 U.S....

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