Fraser v. U.S.
| Decision Date | 21 December 1987 |
| Docket Number | No. 86-3710,86-3710 |
| Parties | Paul Sherwood FRASER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Manuel Socias, Bernard H. Dempsey, Jr., Dempsey & Goldsmith, Orlando, Fla., for petitioner-appellant.
Robert Merkle, Terry Flynn, Asst. U.S. Atty., Tampa, Fla., Mervyn Hamburg, Appellate Section, Crim. Div., Dept. of Justice, Washington, D.C., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before JOHNSON and EDMONDSON, Circuit Judges, and HOFFMAN *, Senior District Judge.
Paul Sherwood Fraser appeals from an order by the United States District Court for the Middle District of Florida requiring him to comply with 18 U.S.C.A. Sec. 3506(a). We conclude that Fraser has appealed from a nonfinal order. Because we find no reason to permit Fraser's interlocutory appeal, we lack jurisdiction and thus must dismiss this appeal.
Fraser, an attorney, had previously represented Larry Abraham. In connection with Abraham's arrest on April 18, 1986, Fraser's California home was searched. Police found documents linking Fraser to Swiss bank accounts. On April 21, the United States filed an official request with the Swiss government to obtain the Swiss bank records.
Bernard Dempsey, an attorney, was informed on May 3 that Fraser was a target of a grand jury investigation pending in Tampa. On May 26, Fraser, Dempsey, and government agents met in Tampa to discuss a preindictment plea agreement.
In July, the Swiss government informed the United States that an opposition had been filed against the release of the Swiss bank records. Until the opposition was resolved, the Swiss government would not release the records. The United States learned that Fraser had filed the opposition. Because Fraser had yet to serve the United States with a copy of his opposition as required by 18 U.S.C.A. Sec. 3506(a), 1 the government, on September 4, filed a motion in the miscellaneous docket requesting that the district court issue an order directing that "FRASER or his representative" serve the Attorney General with a copy of the opposition within five days. The government mailed a copy of the motion to Dempsey on September 4. The next day, the district court granted the government's motion and issued the government's requested order, filing the order in the miscellaneous docket.
On September 22, Fraser filed a motion to vacate. The district court denied the motion on October 6. Fraser filed a notice of appeal on October 16. 2
A colloquy during oral argument best demonstrates that before this Court can address the merits of Fraser's procedural due process and other claims, this Court must have jurisdiction:
There is no way in the world you could say that Fraser and Mr. Dempsey had due process under this arrangement of presenting it on the morning of September the fifth and her [Judge Kovachevich] stamping it granted?
MR. HAMBURG: I wish she didn't--she wouldn't have. I agree. I have no--I have no quarrel with that. It would have been the better practice for Judge Kovachevich to delay this until hearing from the other parties. I agree. 3
And that the case be remanded to the district court for further proceedings.
MR. HAMBURG: That's correct.
We conclude that Fraser must risk litigating his objections in contempt proceedings. Because a contempt citation has yet to issue, Fraser's appeal is premature. Consequently, we lack jurisdiction to determine whether Fraser's procedural due process rights were violated when the district court issued the order one day after the government had requested it and before Fraser had an opportunity to oppose it. Nor may we consider the merits of Fraser's other objections.
Initially, we must determine whether this case should be characterized as a civil or criminal proceeding. Fraser argues that Section 3506(a) does not establish an offense and carries no criminal penalty, but merely creates a civil duty to serve the Attorney General with copies of certain documents filed in foreign countries. The government argues that Section 3506(a)'s language and legislative history demonstrate that the order is part of a criminal case.
This is a question of first impression in the federal courts. We hold that the statute's language, position in the United States Code, and legislative history indicate that an order pursuant to Section 3506(a) is akin to a grant of a motion to compel discovery in a criminal proceeding.
Congress passed Section 3506(a) as part of the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, tit. II, Sec. 1217(a), 98 Stat. 1837, 2165-66. Section 3506(a) was designed to assist government investigation and prosecution of criminal offenses when the government has requested foreign records:
It is not unknown ... for a defendant to seek to block compliance with the request for the records by initiating, without notice to the United States, an action in the courts or another official forum of the other country. In such a circumstance, the United States prosecutor may be unable to respond to the foreign action in a timely manner, forced to delay seeking an indictment, or compelled to seek a continuance in a pending criminal case.
H.R.Rep. No. 907, 98th Cong., 2d Sess. 2, reprinted in 1984 U.S.Code Cong. & Admin. News 3578-79.
New section 3506 requires that United States prosecutors be notified of certain steps taken in another country to oppose an official request made by the United States for evidence located in that country. Subsection (a) requires such notification when the steps are taken in response to an official request made during the investigation of an offense....
Id. at 6, reprinted in 1984 U.S.C.C.A.N. at 3582. 4
In addition, Section 3506(a) was placed in title 18 (Crimes and Criminal Procedure), part II (Criminal Procedure), chapter 223 (Witnesses and Evidence) of the United States Code. From this placement and Section 3506(a)'s legislative history, we discern that Congress intended Section 3506(a) to function as an evidence-gathering, discovery device in a criminal case. As such, a motion for an order compelling compliance with Section 3506(a) is akin to a motion for an order compelling compliance with a discovery request. See Fed.R.Crim.P. 16(d)(2).
The present posture of this case (i.e., preindictment) does not require that we characterize the district court's order as part of a civil proceeding. Indeed, this Court has recognized that "[a] pending criminal investigation, even in the absence of a formal charge, may be sufficient to show that the motion is tied to an existing criminal prosecution." In re Grand Jury Proceedings (Berry), 730 F.2d 716 (11th Cir.1984) (per curiam). Here, Fraser is the subject of a grand jury investigation and Congress specifically passed Section 3506(a) so prosecutors need not delay seeking indictments.
For this Court to have jurisdiction of Fraser's appeal, the decision being challenged must constitute a "final judgment" within the meaning of 28 U.S.C.A. Sec. 1291, which provides that courts of appeals "shall have jurisdiction of appeals from all final decisions of the district courts."
We hold that Fraser seeks review of an interlocutory nonappealable order. " " Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L.Ed. 1377 (1956) (quoting Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937)). Two analogies support our conclusion. First, orders compelling discovery pursuant to Fed.R.Crim.P. 16 are interlocutory and not appealable; a defendant may seek review of adverse orders after conviction. 2 C. Wright, Federal Practice and Procedure Sec. 261, at 126 (2d ed. 1982). Second, orders denying return of seized property are nonappealable when the property is tied to a pending criminal investigation. Grand Jury Proceedings, 730 F.2d at 717 (citations omitted), provides a guiding analogy for the present case:
[U]nless the motion is in no way tied to an ongoing criminal prosecution, an order denying the return of property is considered to be merely a step in the criminal case preliminary to the trial and is an interlocutory non-appealable order. The mere circumstance of a preindictment, rather than postindictment, motion does not make the order denying the motion final and appealable. A pending criminal investigation, even in the absence of a formal charge, may be sufficient to show that the motion is tied to an existing criminal prosecution. 5
Likewise, the district court's order at issue here is "merely a step in the criminal case." The legislative history also indicates that Congress did not intend for interlocutory appeal, because Section 3506(a) was designed...
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In re Grand Jury Investigation, CIV. A. 98-10048.
...See United States v. Bischel, 61 F.3d 1429 (9th Cir.1995); United States v. Roshko, 969 F.2d 9 (2d Cir.1992); Fraser v. United States, 834 F.2d 911 (11th Cir.1987); United States v. Miller, 830 F.2d 1073 (9th Cir. 1987); United States v. Davis, 767 F.2d 1025 (2nd Cir.1985); United States v.......