966 F.2d 1357 (10th Cir. 1992), 91-2210, United States v. Tsosie

Docket Nº:91-2210.
Citation:966 F.2d 1357
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. George TSOSIE, Defendant-Appellant.
Case Date:June 12, 1992
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1357

966 F.2d 1357 (10th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,


George TSOSIE, Defendant-Appellant.

No. 91-2210.

United States Court of Appeals, Tenth Circuit

June 12, 1992

Page 1358

Mary L. Higgins, Asst. U.S. Atty. (Don J. Svet, U.S. Atty., with her on the brief), Albuquerque, N.M., for plaintiff-appellee.

Stephen P. McCue, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant.

Before MCKAY, Chief Circuit Judge, MOORE, Circuit Judge, and EISELE, District Judge. [*]

JOHN P. MOORE, Circuit Judge.

Defendant George Tsosie appeals the dismissal without prejudice under the Speedy Trial Act of his indictment for aggravated sexual abuse of a child. Because dismissal without prejudice under the Speedy Trial Act is not a final decision under either 28 U.S.C. § 1291 or the collateral order doctrine, we dismiss the appeal for lack of jurisdiction.


On April 11, 1991, Mr. Tsosie was charged with committing aggravated sexual abuse of a girl under the age of twelve in Iyanbito in Indian Country, New Mexico, on June 23, 1989. 18 U.S.C. §§ 1153, 2241(c), 2245(2)(B). Under the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, if trial is not commenced within seventy days of the filing of the indictment, 18 U.S.C. §§ 3161(c)(1), 3161(h), the indictment shall be dismissed either with or without prejudice. 18 U.S.C. § 3162(a)(2). Defendant's Speedy Trial Act period expired July 27, 1991, and he filed a motion to dismiss some three weeks later.

The government did not contest Mr. Tsosie's Speedy Trial Act claim, and the district court for New Mexico dismissed the indictment without prejudice. Defendant argues his case should have been dismissed with prejudice and appeals the order. The government contests our jurisdiction to take the appeal.

Federal law allows appeals from final decisions of the district courts. 28 U.S.C. *1359s 1291. In Parr v. United States, 351 U.S. 513, 76 S.Ct. 912, 100 L.Ed. 1377 (1956), the Supreme Court held dismissal without prejudice is not a final order. " 'Final judgment in a criminal case means sentence. The sentence is the judgment.' " Id. at 518 (quoting Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937)). See also United States v. Thompson, 814 F.2d 1472, 1474-75 (10th Cir.), cert. denied, 484 U.S. 830, 108 S.Ct. 101, 98 L.Ed.2d 61 (1987). Adherence to the rule of finality is particularly strict in criminal cases because delays associated with intermediate appeals are inimical to the effective operation of criminal law. Abney v. United States, 431 U.S. 651, 657, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977) (citing DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 658, 7 L.Ed.2d 614 (1962)). To accept an interlocutory appeal in this case, we would have to hold Speedy Trial Act claims either fall within the collateral order doctrine, or jurisdiction is implied by the language of the statute. If we have jurisdiction, we review decisions of the trial court under the Speedy Trial Act for abuse of discretion. United States v. Taylor, 487 U.S. 326, 335, 108 S.Ct. 2413, 2419, 101 L.Ed.2d 297 (1988).


The requirements for appealing collateral orders are set out in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949), and Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978). The order must: "(1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment." 437 U.S. at 468-69, 98 S.Ct. at 2458 (citing Abney, 431 U.S. at 658, 97 S.Ct. at 2039; United States v. MacDonald, 435 U.S. 850, 855, 98 S.Ct. 1547, 1550, 56 L.Ed.2d 18 (1978)).

The Supreme Court has applied the collateral order doctrine to four categories of criminal cases to date: (1) motions to reduce bail, Stack v. Boyle, 342 U.S. 1, 6, 72 S.Ct. 1, 4, 96 L.Ed. 3 (1951); (2) pretrial orders denying motions to dismiss on double jeopardy grounds, Abney, 431 U.S. at 658-59, 97 S.Ct. at 2040; (3) rejection of Speech and Debate Clause immunity, Helstoski v. Meanor, 442 U.S. 500, 506-07, 99 S.Ct. 2445, 2448, 61 L.Ed.2d 30 (1979); and (4) denial of a qualified immunity defense, Mitchell v. Forsyth, 472 U.S. 511, 528-29, 105 S.Ct. 2806, 2816-17, 86 L.Ed.2d 411 (1985). We have extended the collateral order exception in United States v. P.H.E., Inc., 965 F.2d 848 (10th Cir.1992). In P.H.E., we held appellants presented a First Amendment "right not to be tried," 965 F.2d at 853, which would be " 'lost, probably irreparably,' " if review had to await final judgment. Id. (citing Abney, 431 U.S. at 658, 97 S.Ct. at 2039, quoting Cohen, 337 U.S. at 546, 69 S.Ct. at 1225).

The collateral order doctrine is an interpretive rule for courts to construe statutory jurisdictional requirements by weighing the interests involved on the merits. A collateral order thus may be considered on appeal if it is " '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.' " United States v. Thompson, 814 F.2d at 1475 (citing Cohen, 337 U.S. at 546, 69 S.Ct. at 1226). In criminal cases, collateral orders have only been taken on appeal when the interest has reached the level of a constitutional "right not to be tried." See Abney, 431 U.S. at 659, 97 S.Ct. at 2040 ("Rather, he is contesting the very authority of the Government to hale him into court to face trial on the charge against him." (citations omitted)); see also MacDonald, 435 U.S. at 860 n. 7, 861, 98 S.Ct. at 1552 n. 7, 1553 (describing "right not to be tried").

Defendant Tsosie asserts the vindication of his speedy trial rights implicates a right not to be tried. The first two components of the Cohen collateral order test, that the order conclusively determine the disputed question and the issue be separate from

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the merits, would be met by an order to dismiss with prejudice. Defendant concedes the third Cohen requirement, that the right be effectively lost without interlocutory appeal, is not met. He urges a more flexible interpretation of the third Cohen requirement, using the reasoning of the dissent in United States v. Bratcher, 833 F.2d 69, 72 (6th Cir.1987), cert. denied, 484 U.S. 1030, 108 S.Ct. 760, 98 L.Ed.2d 772 (1988).

Mr. Tsosie raises only the Speedy Trial Act issues and does not assert a constitutional claim. Defendant argues there is a high likelihood prejudice...

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