Flanagan v. United States

• Decision Date: 21 February 1984
• Docket Number: No. 82-374,82-374
• Citation: 79 L.Ed.2d 288,465 U.S. 259,104 S.Ct. 1051
• Parties: Robert FLANAGAN, James Keweshan, Joseph Landis and Thomas McNamee, Petitioners v. UNITED STATES
• Court: U.S. Supreme Court

465 U.S. 259

104 S.Ct. 1051

79 L.Ed.2d 288

Robert FLANAGAN, James Keweshan, Joseph Landis and Thomas McNamee, Petitioners

v UNITED STATES.

No. 82-374.

Argued Nov. 30, 1983.

Decided Feb. 21, 1984.

Syllabus

Petitioners, four Philadelphia police officers, were indicted by a federal grand jury for conspiring to deprive citizens of their civil rights and for committing substantive civil rights offenses. Prior to the return of the indictment, petitioners had retained a certain law firm to act as joint counsel, and continued the joint representation after the indictment, even though the indictment did not make the same allegations against all petitioners. After three of the petitioners moved to sever their case from the fourth petitioner's and after petitioners moved to dismiss the conspiracy count, the District Court granted the Government's motion to disqualify the law firm from its multiple representation. The Court of Appeals affirmed, noting that it had jurisdiction under 28 U.S.C. § 1291, because the disqualification order was appealable prior to trial as a collateral order.

Held: The disqualification order was not immediately appealable under § 1291, and hence the Court of Appeals had no jurisdiction to review the order prior to entry of final judgment in the case. Pp. 263-270.

(a) The policy embodied in § 1291, which limits the jurisdiction of the courts of appeals to appeals from "final decisions of the district court," is inimical to piecemeal appellate review of trial court decisions that do not terminate the litigation. This policy is at its strongest in the field of criminal law. Pp. 263-265.

(b) To come within the "collateral order" exception to the final judgment rule, a trial court 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." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351. A counsel disqualification order is not analogous to any of the three types of interlocutory orders—orders denying motions to reduce bail or to dismiss an indictment on double jeopardy or speech or debate grounds—that this Court has found immediately appealable in criminal cases as collateral-order exceptions. Nothing about a counsel disqualification order distinguishes it from the run of pretrial decisions that affect the rights of criminal defendants yet must await completion of trial court proceedings for review. Such an order fails to satisfy the stringent Coopers & Lybrand conditions for qualification as an immediately appealable collateral order, and the overriding policies against interlocutory review in criminal cases apply in full. Pp. 265-270.

679 F.2d 1072 (CA3 1982), reversed.

Edward H. Rubenstone, Philadelphia, Pa., for petitioners.

Andrew L. Frey, Washington, D.C., for respondent.

Justice O'CONNOR delivered the opinion of the Court.

In Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct 669, 66 L.Ed.2d 571 (1981), the Court held that a pretrial denial of a motion to disqualify counsel in a civil case is not appealable prior to trial under 28 U.S.C. § 1291 as a final collateral order. The Court reserved the questions of the immediate appealability of pretrial denials of disqualification motions in criminal cases and of pretrial grants of disqualification motions in both criminal and civil cases. Id., at 372, n. 8, 101 S.Ct., at 672 n. 8. We decide today that a District Court's pretrial disqualification of defense counsel in a criminal prosecution is not immediately appealable under 28 U.S.C. § 1291.

I

Petitioners are four police officers who formed a "grandpop" decoy squad in the Philadelphia Police Department. Petitioner Flanagan would pose as an aged derelict, a likely target for street criminals. When Flanagan gave the standard alarm, the other members of the decoy team would move in to make an arrest.

A federal grand jury in the Eastern District of Pennsylvania indicted petitioners in September 1981. The indictment alleged that petitioners had conspired to make arrests without probable cause and had unlawfully arrested and abused eight people. One count of the indictment charged petitioners with conspiring to deprive citizens of their civil rights in violation of 18 U.S.C. § 241. The remaining 12 counts charged petitioners, in various combinations, with committing substantive civil rights offenses in violation of 18 U.S.C. § 242.

Prior to the return of the indictment, petitioners had retained the law firm of Sprague and Rubenstone to act as joint counsel. Petitioners decided to continue the joint representation after the indictment was handed down, even though the indictment did not make the same allegations against all petitioners. Petitioners Keweshan, Landis, and McNamee, however, moved to sever their case from petitioner Flanagan's, arguing that the government's evidence against Flanagan alone was so much greater than the evidence against them that severance was necessary to avoid prejudicial spillover. In addition, based on the asserted differences in their involvement in the activities alleged in the substantive counts of the indictment, petitioners moved to dismiss the conspiracy count. The Government responded by moving to disqualify Sprague and Rubenstone from its multiple representation of petitioners and by asking the court to inquire into the representation as required by Federal Rule of Criminal Procedure 44(c).¹

In early December 1981, following a hearing and briefing on the Government's motion, the District Court 527 F.Supp. 902 (D.C.1981) disqualified the law firm from participation in the case. The court found that no actual conflict of interest had yet developed but that there was a clear potential for conflict. Most notably, the severance motion and supporting papers showed that petitioner Flanagan's interests were likely to diverge from the other petitioners' interests. The District Court also found that petitioners had voluntarily, knowingly, and intelligently waived their right to conflict-free representation. The court concluded, however, that it had the authority and, indeed, the obligation under Rule 44(c) to disqualify counsel when "the likelihood is great that a potential conflict may escalate into an actual conflict." App. to Pet. for Cert. A-27. The court presumed that Sprague and Rubenstone had obtained privileged information from each of the petitioners and therefore disqualified the law firm from representing any of them.

Petitioners appealed to the United States Court of Appeals for the Third Circuit, which affirmed the decision of the District Court in June 1982. 679 F.2d 1072 (CA3 1982). Although jurisdiction was not challenged, the Court of Appeals noted that it had jurisdiction under 28 U.S.C. § 1291 because the disqualification order was appealable prior to trial as a collateral order within the meaning of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The court went on to hold that the disqualification order was proper because an actual conflict of interest was very likely to arise. In July 1982 the court denied rehearing but stayed issuance of the mandate to permit filing of a petition for a writ of certiorari in this Court.

Petitioners filed their petition in September 1982, one year after the grand jury had returned the indictment against them. They contended that disqualification of counsel of their choice after they had knowingly waived conflict-free representation deprived them of their Sixth Amendment right to assistance of counsel and of their Fifth Amendment due process right to present a common defense through joint counsel. We granted certiorari in January 1983. 459 U.S. ----, 103 S.Ct. 721, 74 L.Ed.2d 948. The parties briefed and argued both the merits and the jurisdictional question—whether the disqualification order was immediately appealable under 28 U.S.C. § 1291. We now reverse the judgment of the Court of Appeals because we conclude that the court had no jurisdiction to review the disqualification order prior to entry of final judgment in the criminal case.²

II

"Finality as a condition of review is an historic characteristic of federal appellate procedure." Cobbledick v. United States, 309 U.S. 323, 324, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940). Thus, the jurisdictional statute applicable to this case limits the jurisdiction of the Courts of Appeals to appeals from "final decisions of the district court." 28 U.S.C. § 1291. This final judgment rule requires "that a party must ordinarily raise all claims of error in a single appeal following final judgment on the merits." Firestone Tire & Rubber Co. v. Risjord, supra, 449 U.S., at 374, 101 S.Ct., at 673. In a criminal case the rule prohibits appellate review until conviction and imposition of sentence. Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937).

The final judgment rule serves several important interests. It helps preserve the respect due trial judges by minimizing appellate-court interference with the numerous decisions they must make in the pre-judgment stages of litigation. It reduces the ability of litigants to harass opponents and to clog the courts through a succession of costly and time-consuming appeals. It is crucial to the efficient administration of justice. Firestone Tire & Rubber Co. v. Risjord, supra, 449 U.S., at 374, 101 S.Ct., at 673. For these reasons, "[t]his Court has long held that the policy of Congress embodied in [section 1291] is inimical to piecemeal appellate review of trial court decisions which do not terminate the litigation. . . ." United States v. Hollywood Motor Car Co., 458 U.S. 263, 265, 102 S.Ct. 3081, 3083, 73 L.Ed.2d 754 (1982).

The Court has also long held that "this policy is at its strongest in the field of criminal law." Ibid. More than 40 years...