Degeorge v. U.S. Dist. Court, No. 99-71446
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | WALLACE |
| Citation | 219 F.3d 930 |
| Parties | (9th Cir. 2000) REX K. DEGEORGE, Petitioner, v. UNITED STATES DISTRICT COURT FORTHE CENTRAL DISTRICT OF CALIFORNIA, Respondent, UNITED STATES OF AMERICA, Real Party in Interest. Office of the Circuit Executive |
| Docket Number | No. 99-71446 |
| Decision Date | 06 March 2000 |
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v.
UNITED STATES DISTRICT COURT FORTHE CENTRAL DISTRICT OF CALIFORNIA, Respondent, UNITED STATES OF AMERICA, Real Party in Interest.
Filed July 18, 2000
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Richard Marmaro, McCambridge, Deixler & Marmaro, LLP, Los Angeles, California, for the petitioner.
David C. Marcus and Eileen M. Decker, Assistant United States Attorneys, Criminal Division, Los Angeles, California, for the real party in interest.
Appeal from the United States District Court for the Central District of California, Lourdes G. Baird, District Judge, Presiding; D.C. No. CR-99-38-LGB
Before: J. Clifford Wallace, Harry Pregerson, and Sidney R. Thomas, Circuit Judges.
WALLACE, Circuit Judge:
Rex K. DeGeorge petitions this court for a writ of mandamus commanding the United States District Court for the Central District of California to (1) vacate its order denying DeGeorge's motion to dismiss certain counts for which he has been indicted as time barred, and (2) enter an order dismissing those counts. We have jurisdiction pursuant to the All Writs Act, 28 U.S.C. S 1651. Because DeGeorge's case does not meet the strict prerequisites for extraordinary relief, we deny his petition.
In January 1999, a federal grand jury returned a fourteen-count indictment charging DeGeorge with various federal crimes related to his participation in an alleged insurance fraud scheme. In late 1992 and early 1993, DeGeorge and a partner purportedly purchased a 76-foot motor yacht in Italy, artificially inflated its value through sham sales and purchases, insured it at the inflated value, and attempted to collect insurance proceeds after scuttling it on its maiden voyage from Italy. In April 1993, the insurer filed a declaratory relief action in the Central District Court of California seeking to rescind the policy and avoid payment. After extensive discovery, the district court alerted the United States Attorney about a possible perjury investigation. Eventually, the district court rescinded the policy and entered judgment for the insurer. Cigna Prop. & Cas. Ins. Co. v. Polaris Pictures Corp., 1997 WL 382108 (C.D. Cal. Feb. 20, 1997), aff'd, 159 F.3d 412 (9th Cir. 1998), cert. denied, 120 S. Ct. 53 (1999).
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An Assistant United States Attorney investigated the perjury claim for a brief time before resigning. The matter was reassigned in April 1997 to another Assistant United States Attorney, who investigated the perjury claim as well as the alleged conduct surrounding the yacht's sinking. On August 18, 1997, as part of his investigation, the Assistant United States Attorney made a formal request to the Italian government for relevant documentary evidence and for assistance in obtaining interviews with eight witnesses in Italy who allegedly had first-hand information. A grand jury subpoena was issued on August 25, 1997, to one of the insurer's attorneys, ordering all documents from the civil case to be provided to the government by October 7, 1997. Most critical to DeGeorge's petition for a writ of mandamus, on August 26, 1997, the Assistant United States Attorney filed an ex parte, in camera application, pursuant to 18 U.S.C. S 3292, for an order suspending the running of the statute of limitations for any federal offenses related to DeGeorge's alleged conduct pending the government's foreign evidence request. A district court judge granted the section 3292 request on September 3, 1997, suspending the statute of limitations period as of August 18, 1997, the date of the foreign evidence request.
After DeGeorge was indicted, his case was assigned to a different district court judge than the one who made the section 3292 order. DeGeorge filed a motion to dismiss, arguing that the section 3292 order was invalid, that counts one through twelve of the indictment were time barred or otherwise defective, and that they should therefore be dismissed. The district court denied the motion. It is the district court's denial of DeGeorge's motion to dismiss that he challenges in this petition for a writ of mandamus.
A writ of mandamus is "an extraordinary or drastic remedy," Calderon v. United States Dist. Court , 163 F.3d 530, 534 (9th Cir. 1998) (en banc) (internal quotation omitted), used "only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Will v. United States, 389 U.S. 90, 95 (1967) (internal quotation omitted). The petitioner has the burden to establish "that its right to issuance of the writ is clear and indisputable." Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384 (1953) (internal quotation omitted). We typically examine five factors, first enumerated in Bauman v. United States District Court, 557 F.2d 650 (9th Cir. 1977), to evaluate whether a petitioner carries its burden:
(1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires. (2) The petitioner will be damaged or prejudiced in a way not correctable on appeal . . . . (3) The district court's order is clearly erroneous as a matter of law. (4) The district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules. (5) The district court's order raises new and important problems, or issues of law of first impression.
Id. at 654-55 (citations omitted). The Bauman factors are "guidelines," id. at 655, to be "weighed together, as is appropriate, based on the facts of the individual case. " Calderon, 163 F.3d at 534. Usually, "the absence of factor three -clear error as a matter of law -will always defeat a petition for mandamus. . . . [F]actors one and two usually travel together, while factors four and five seldom do." Id. (citations omitted).
A.
We first examine whether DeGeorge has any other adequate means, such as direct appeal, to attain the relief he seeks, which is the dismissal of counts one through twelve of his indictment as time barred. We are guided in this issue
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by United States v. Rossman, 940 F.2d 535, 536 (9th Cir. 1991) (per curiam), which held that the denial of a motion to dismiss an indictment as time barred was not a final order appealable pursuant to 28 U.S.C. S 1291, or an interlocutory order appropriate for immediate review pursuant to Abney v. United States, 431 U.S. 651, 656-58 (1977). It is implicit in Rossman, and the decisions of the Third and Sixth Circuits upon which it relies, that the denial of a motion to dismiss an indictment as time barred may be reviewed on direct appeal after trial. See Rossman, 940 F.2d at 536, citing United States v. Davis, 873 F.2d 900, 908-09 (6th Cir. 1989), and United States v. Levine, 658 F.2d 113, 126 (3d Cir. 1981). Since direct appeal is available to DeGeorge for obtaining the relief he seeks, this factor weighs against granting mandamus.
DeGeorge, citing Credit Suisse v. United States District Court, 130 F.3d 1342, 1345-46 (9th Cir. 1997), argues that since the denial of his motion to dismiss is not immediately appealable, he is entitled to mandamus relief. In that case, we issued a writ of mandamus compelling the district court to vacate its denial of a motion to dismiss and also to dismiss the action. In so doing, we did state that "immediate review of the denial of the[ ] motion to dismiss" was not available. Id. at 1346. However, a careful reading of Credit Suisse confirms that we granted the writ only after consideration of other relevant Bauman factors that weighed heavily in favor of granting the writ -specifically, "severe prejudice that could not be remedied on direct appeal," id., and a clear error of law. Id. at 1346-48. A careful reading of Credit Suisse demonstrates that it does not stand for the proposition that the first Bauman factor is always satisfied when a motion to dismiss is denied because that order is not immediately appealable. The Credit Suisse analysis of the first Bauman test is the exception, not the rule, because direct appeal after trial, as opposed to immediate review, is the typically adequate means of review. Bauman, 557 F.2d at 654, 656. If writs of mandamus could be obtained merely because an order was not immediately appealable, as DeGeorge argues, mandamus would eviscerate the statutory scheme established by Congress to "strictly circumscrib[e] piecemeal appeal," Bankers Life, 346 U.S. at 383, citing 28 U.S.C. SS 1291, 1292, and mandamus would "become a substitute for the normal appellate process. " Calderon, 163 F.3d at 534, citing Kerr v. United States District Court, 426 U.S. 394, 402 (1976), and Bankers Life, 346 U.S. at 383. We therefore disagree with DeGeorge's argument, and hold that direct appeal is an adequate means for him to obtain the relief he seeks. Thus, the first Bauman factor weighs against DeGeorge.
B.
We next address whether DeGeorge will suffer damage or prejudice that cannot be corrected on direct appeal. This factor is closely related to the preceding one. Bauman, 557 F.2d at 654. A mandamus petitioner "must demonstrate some burden . . . other than the mere cost and delay that are the regrettable, yet normal, features of our imperfect legal system." Calderon, 163 F.3d at 535. Prejudicial harm serious enough to require mandamus relief includes situations in which one's "claim will obviously be moot by the time an appeal is possible," or in which one "will not have the ability to appeal." Id.
DeGeorge's prejudice argument involves his detention pending trial, without bail, because the district court found him to be "a substantial flight risk." DeGeorge argues, without citing any supporting legal authority, that the district court's denial...
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