U.S. v. Barletta

• Decision Date: 17 March 1981
• Docket Number: 80-1456,Nos. 80-1220,s. 80-1220
• Citation: 644 F.2d 50
• Parties: 7 Fed. R. Evid. Serv. 1473 UNITED STATES of America, Appellant, v. John R. BARLETTA, Defendant, Appellee. In re UNITED STATES of America, Petitioner.
• Court: U.S. Court of Appeals — First Circuit

Page 50

644 F.2d 50

7 Fed. R. Evid. Serv. 1473

UNITED STATES of America, Appellant, v. John R. BARLETTA, Defendant, Appellee In re UNITED STATES of America, Petitioner.

Nos. 80-1220, 80-1456.

United States Court of Appeals First Circuit.

Argued and Submitted Dec. 4, 1980.

Decided March 17, 1981.

Amos Hugh Scott, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on briefs, for appellant.

Marshall D. Stein, Boston, Mass., with whom Julian Soshnick, Boston, Mass., was on briefs, for appellee.

Before COFFIN, Chief Judge, ALDRICH and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

The government seeks in this case to compel a district court to rule prior to the retrial of a criminal prosecution on a government motion to admit certain evidence at that retrial. The central issue raised by this effort, arising out of the complex interplay of 18 U.S.C. § 3731 and Rule 12 of the Federal Rules of Criminal Procedure, is whether and under what circumstances a district court may defer such a ruling until trial under Rule 12 without "adversely affecting" the government's right to appeal an adverse ruling under § 3731 a question that, although of potential significance in a broad range of cases, is apparently put directly in issue for the first time in these proceedings. We view this issue somewhat differently than did either the parties or the district court, and we remand the case to that court with instructions to enter the requested pretrial ruling.

Because this appeal presents a complex issue of first impression, involving a tension between the government's statutorily recognized right to appellate review of certain evidentiary rulings and the dictates of judicial economy, we have felt impelled to consider a number of alternative resolutions. For the guidance of readers, we indicate the following outline of our opinion. Part I sets forth the history of proceedings and rulings in this case to date. Part II addresses an issue of appellate jurisdiction. Part III contains our wide-ranging exploration of various alternatives and the basis for the resolution that seems to us appropriate. Part IV sets forth both the principles and their application that govern the instant case.

I

The prosecution that has given rise to this dispute was at the outset relatively straightforward. The government indicted the defendant Barletta, a Massachusetts state tax examiner, on seventeen counts of conspiracy and mail fraud in connection with an alleged tax underpayment scheme. On the day before the trial was to begin, the defendant moved to suppress a tape recording of a conversation between Barletta and a government witness; with the consent of both parties, the district court deferred a ruling until trial in order to allow an accurate transcript to be prepared. The government offered the tape recording into evidence on the second day of trial, and after an in camera hearing the district court ordered it excluded. The court advanced two grounds for its ruling: first that the tape represented essentially an unsuccessful attempt by an informant to elicit an admission from the defendant, and second that despite its exculpatory character the tape contained certain references whose potential prejudice substantially outweighed any probative value the tape might have. The government filed a motion for reconsideration of that ruling at the close of its case, arguing that the court had erred as to matters of both fact and law; the district court denied the motion without elaboration. The trial subsequently ended in a mistrial when the jury was unable to reach a unanimous verdict.

From this point, however, the case took some rather unusual procedural twists. The government indicated its intent to seek a retrial, and simultaneously moved for a pretrial ruling on the admissibility of the contested recording. The government's motion, the exact wording of which was to become significant, was phrased as two distinct requests: "that the tape recording be admitted into evidence at the retrial of the case; and, further that the Court's ruling on this motion be made in advance of trial". As it had with the earlier motion for reconsideration, the district court endorsed the motion with the single word "Denied". The government then filed a notice of appeal, construing the court's order as a decision on the merits of its motion and seeking review of that decision. The defendant, finding the order ambiguous, moved in the district court for a "clarification" of whether the order denied the motion on the merits or merely deferred decision on it until trial. The government responded that in its view the court's order had to be construed as a denial on the merits for three reasons: first because the court's twice refusing to admit the recording at the first trial dictated such an inference; second because the very fact of a ruling on the motion suggested a grant of the request for a pretrial ruling; and third and most importantly for this appeal because Fed.R.Crim.P. 12(e) required the court to rule prior to trial. The district court subsequently issued an opinion in response to the motion for clarification, asserting that it had in its earlier order merely refused to issue a pretrial ruling and setting forth at length its reasons for concluding that it had authority to do so; the court's opinion has been reported at 492 F.Supp. 910. The government views that order as an impermissible attempt to divest this court of jurisdiction that had already properly attached, and maintains that the earlier order must still be viewed as a denial on the merits.

The parties have in the wake of these developments arrived at a rather curious posture before us. The government seeks to take a direct appeal from what it continues to deem an order excluding evidence, and has presented arguments in support of both the appealability of the district court's orders and the merits of its motion to admit. In the alternative, the government has argued that if the district court's order is not construed as a ruling on the merits of its motion, a writ of mandamus is appropriate to compel such a ruling prior to the pending retrial. The defendant asserts that the order must be construed as the district court subsequently indicated it should, and argues that an order deferring decision is not appealable; the defendant has also presented its arguments for exclusion of the evidence in the event that an appeal is held to lie. As to the mandamus petition, however defendant's counsel have changed position: after arguing to the district court that it was not required to rule prior to trial, they have concluded on appeal that such a ruling is required, and agree with the government that mandamus is therefore appropriate. We remanded the case to the district court to allow it to take account of the defendant's change of position, whereupon that court, in another full opinion, reaffirmed its earlier decision. 500 F.Supp. 739.

II

In light of these tangled proceedings, it is useful to restate the questions before us and clarify the relationship among them. The first question we face is whether an appeal lies from the district court's orders. If it does we must consider the merits of the motion to admit, while if it does not we must consider whether a writ of mandamus lies to compel the district court to rule prior to trial; each branch of the inquiry precludes the other. The parties, the district court and we are in agreement that no double jeopardy obstacles are presented by the prior mistrial, and that the government has complied with all other requirements for taking of an appeal. See 18 U.S.C. § 3731. ¹

We think the answer to the first question to be clear. The potentially applicable source of appellate jurisdiction, 18 U.S.C. § 3731, confers jurisdiction over "a decision or order of a district courts (court) suppressing or excluding evidence." The government contends that three orders provide the requisite evidentiary ruling, in combination if not separately: the two issued during the first trial, excluding the evidence and denying reconsideration, plus the one issued in response to the government's motion for a ruling prior to retrial. We think it plain that the rulings issued during the first trial, whatever their significance as informal indicators of a likely ruling on retrial, are now moot and of no legal force or effect. Nor are we persuaded by the government's attempt to construe the court's decision on the motion for a pretrial ruling as a decision on the merits of the motion to admit. The order as initially issued was completely ambiguous the government's motion requested two separate and distinct actions, and the court's succinct endorsement gave no clue as to which it addressed. Moreover, neither the fact that the court had ruled against admissibility in the prior trial nor the bare fact that it acted on the motion prior to retrial serves to constitute a decision as to admissibility on retrial. Finally, the government's effort to construe the district court's clarification order as an invalid attempt to divest us of jurisdiction seems entirely misguided. Precisely because the question of our jurisdiction over its initial order turned on the proper interpretation of that order, the district court's clarification of its own prior action was appropriately "in aid of the appeal", 9 Moore's Federal Practice P 203.11 at 734 (2d ed. 1973), and was in accordance with Fed.R.App.P. 10(e). As a result, we conclude that no order suppressing or excluding evidence has been entered, that nothing warrants our "construing" the district court's actions so as to dictate such an order, and that no appeal may be taken.

III

Thus we do not consider the merits of the government's motion to admit the evidence, but come instead to the important question posed by its mandamus petition: where the government has requested a pretrial ruling on such a motion,...