U.S. v. Bailey, 74-3370

• Citation: 512 F.2d 833
• Decision Date: 09 May 1975
• Docket Number: No. 74-3370,74-3370
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. F. Lee BAILEY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 833

512 F.2d 833

UNITED STATES of America, Plaintiff-Appellee, v. F. Lee BAILEY, Defendant-Appellant.

No. 74-3370.

United States Court of Appeals, Fifth Circuit.

May 9, 1975.

Henry Gonzalez, Tampa, Fla., Roger E. Zuckerman, Washington, D. C., for defendant-appellant.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Robert A. Leventhal, Asst. U. S. Atty., Orlando, Fla., Jay C. Johnson, U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before WISDOM and DYER, Circuit Judges, and KRAFT ^*, District Judge.

DYER, Circuit Judge:

This is an appeal under 28 U.S.C.A. § 1291 ¹ from the district court's denial of defendant Bailey's motion, based upon former jeopardy, to dismiss an indictment returned against him, and, alternatively, from the denial of his motion for a speedy trial. We dismiss for lack of appellate jurisdiction.

A brief statement of the posture of the case is necessary to focus on the narrow issue before us. Bailey, Bunting, and various other persons, both individual and corporate, were tried under a multicount indictment charging mail fraud and conspiracy to commit mail fraud. The trial began on September 17, 1973, the Government rested its case on January 30, 1974, and Bailey's motion for severance was granted on April 25, 1974. A mistrial as to the other defendants was declared on May 30, 1974. The Government insists upon a retrial.

The thrust of Bailey's former jeopardy argument is that Bunting was an essential defense witness in Bailey's behalf and that although he was willing, if severed, to testify for Bailey and waive his former jeopardy claim as to the severance alone, the court insisted upon the execution of a comprehensive waiver by Bunting requiring him to abandon all claims to alleged prior judicial error and misconduct. This Bunting refused to do. Although Bailey strongly objected to the nature of the waiver sought, he eventually moved for his own severance. Bailey insists that in these circumstances the court aborted his trial over his active objection or without his consent and that this constituted judicial overreaching, so as to cause jeopardy to attach to Bailey's severance. Alternatively, Bailey argues that the failure of the district court to set a retrial date for him for over eight months as a severed defendant has denied him his constitutional right to a speedy trial. The Government, or course, takes issue with these arguments.

The Government insists that neither the district court's order denying Bailey's motion to dismiss on former jeopardy grounds nor its order denying Bailey's alternative motion for a speed trial are final appealable orders vesting this Court with jurisdiction. We agree and therefore do not reach the merits in either instance.

Although considerable water has gone over the dam since Judge Brown, now Chief Judge, as organ for the Court, wrote Gilmore v. United States, 5 Cir. 1959, 264 F.2d 44, it is not only very much alive and well but is determinative in this appeal, both on the former jeopardy and the speedy trial issue. Gilmore was tried twice. His first conviction was reversed. The jury at his second trial could not agree and a mistrial was therefore entered. The district court denied Gilmore's motion under F.R.Crim.P. 29(a) to enter judgment of acquittal on the ground that the evidence was insufficient to sustain conviction, and an appeal ensued. Without considering the merits, this Court dismissed the appeal because it was not taken from a final decision. In reaching this conclusion it was assumed arguendo that the district court could have entered a judgment of acquittal. Judge Brown was careful to point out, however, that in criminal cases there is finality only when the decision terminates the litigation on the merits and sentence has been imposed. Gilmore argued, as does Bailey here, that the order should have been considered final because it disposed finally of the claimed right not to be twice tried for the same offense. In support of this argument Gilmore emphasized that there was no corrective action available if a direct appeal could not be prosecuted since a second trial would have to take place, but a subsequent appeal would review not the errors in the second trial, but the denial of the motion for acquittal at the end of the first trial. It follows, said Gilmore, that the second trial would be superfluous, but "(w)orse, this has all been required and done in defiance of the constitutional rights of an accused, since 'The prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted is equally put in jeopardy at the first trial.' " Id. at 46 (footnote omitted). The Court responded:

But even if it were assumed that the second trial was forbidden as double jeopardy, that does not invest us with jurisdiction to vindicate such right. The Constitution does not guarantee an appeal. That comes wholly from the statute. There are many instances in which it is ultimately determined that constitutional rights have been violated. But the nature of the asserted right, i. e., a constitutional one, does not distinguish appellate review of any such question from the assertion of other rights, whether statutory or common law, or from a procedural rule. At least so long as a criminal case is pending, review of such matters, as for example, unlawful search and seizure, unlawful arrest, unlawful detention, unlawful indictment, unlawful confession, must await the trial and its outcome. This is so even though, at the end of that trial, or an appeal from the judgment of conviction, it is ultimately determined that the violation of the constitutional right compels an acquittal. When that is the outcome, the individual accused may claim in a very real sense to have been subjected to a trial that ought never to have taken place.

The Constitutional right, or the asserted violation of it, does not bridge the gap of appellate statutory jurisdiction. Nor, for like reasons, does it, through some reverse process, expand the term "final decision" into something which, contrary to a long-settled Congressional policy, amounts in actuality to piecemeal review. (footnote omitted). Id. at 46-47.

The principles explicated in Gilmore are strongly rooted.

Finality as a condition of review is an historic characteristic of federal appellate procedure. It was written into the first Judiciary Act and has been departed from only when observance of it would practically defeat the right to any review at all.... The correctness of the trial court's rejection even of a constitutional claim made by the accused in the process of prosecution must await his conviction before its reconsideration by an appellate tribunal. Cobbledick v. United States, 1940, 309 U.S. 323, 324-26, 60 S.Ct. 540, 541, 84 L.Ed. 783.

Underscoring the need for finality, the Court in Parr v. United States, 1956, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L.Ed. 1377 pointed out that

(i)n general, a "judgment" or "decision" is final for the purpose of appeal only "when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined."

It further noted that "(f)inal judgment in a criminal case means sentence. The sentence is the judgment." Parr has challenged the Government's right to dismiss an indictment returned against him in the Corpus Christi division of the Southern District of Texas after it had obtained a new indictment against him in the Austin division of the Western District of Texas for the same offenses. Holding that Parr could have the Corpus Christi dismissal reviewed upon an appeal from a judgment of conviction under the Austin indictment, the Court dismissed his appeal in conformity with the long standing statutory policy against piecemeal appeals.

Bailey, relying on Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, and United States v. Lansdown, 4 Cir. 1972, 460 F.2d 164, strenuously insists that in the circumstances of this case, the district court's denial of his motion to dismiss the indictment was a final appealable order. He distinguishes Gilmore by arguing that the result would have been different if, were the jeopardy claim not reached, the defendant on remand would have to stand trial for nine months rather than stand trial for two weeks or two months. Furthermore, he seems to infer that since the Gilmore opinion...