U.S. v. Brizendine

• Citation: 659 F.2d 215,212 U.S.App.D.C. 169
• Decision Date: 17 July 1981
• Docket Number: No. 81-1196,81-1196
• Parties: UNITED STATES of America, v. John C. BRIZENDINE, Charles M. Forsyth, James S. McDonnell, III, and Sherman Pruitt, Jr., Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 215

659 F.2d 215

212 U.S.App.D.C. 169

UNITED STATES of America, v. John C. BRIZENDINE, Charles M. Forsyth, James S. McDonnell III, and Sherman Pruitt, Jr., Appellants.

No. 81-1196.

United States Court of Appeals, District of Columbia Circuit.

Argued June 19, 1981.

Decided July 17, 1981.

Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 79-00516).

Peter E. Fleming, Jr., New York City, was on the brief and argued for all appellants.

James H. Rowe, III, New York City, Charles B. Rosenberg, and Miles N. Ruthberg, Los Angeles, Cal., were on the brief for appellant Brizendine.

Seymour Glanzer and Kenneth L. Adams, Washington, D. C., were on the brief for appellant Forsyth.

John W. Vardaman, Jr. and David E. Kendall, Washington, D. C., were on the brief for appellant McDonnell.

John M. Bray and David J. Curtin, Washington, D. C., were on the brief for appellant Pruitt.

Robert J. Erickson, Atty., Dept. of Justice, Washington, D.C., of the bar of the Supreme Court of North Dakota, pro hac vice, by special leave of court, with whom George J. Mendelson and Michael A. Lubin, Attys., Dept. of Justice, Washington, D. C., were on the brief for appellee.

Before WRIGHT, WALD and MIKVA, Circuit Judges.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

To avoid the delays and inefficiencies of piecemeal litigation, 28 U.S.C. § 1291 (1976) limits appellate jurisdiction to "final decisions" of the District Courts. Although the statute has been judicially construed to allow interlocutory review of a small class of cases in which post-judgment review would be too late, the exceptions must be narrowly defined to preserve the vitality of the rule. We hold today that we lack jurisdiction to review appeals by defendants in criminal cases from the District Court's denial of their motions to dismiss the indictment on due process grounds relating to the plea bargaining process. We therefore do not reach the merits of the appellants' due process contentions.

I. FACTS AND PROCEDURAL BACKGROUND

In October 1977, the Department of Justice initiated a grand jury investigation into the overseas sales practices of McDonnell Douglas Corporation (MDC). Preliminary plea negotiations between the government and counsel for MDC began in early 1979, while the investigation continued. Between January and May 1979, four individual officers of MDC, the appellants here, were informed that they were targets of the investigation. Counsel for MDC sought a settlement that would terminate the investigation with no indictments of individuals. The government expressed its willingness to discuss such a plea in April 1979, but at the end of that month suspended these negotiations in order to pursue a new development in the investigation. Plea negotiations resumed in August 1979. The line prosecutors prepared a proposed plea agreement, subject to the approval of Assistant Attorney General Philip Heymann. The proposed agreement provided that MDC would plead nolo contendere to one count of racketeering, 18 U.S.C. § 1962 (1976), plead guilty to four counts of making false statements to a federal agency, 18 U.S.C. § 1001 (1976), and incur a substantial forfeiture and monetary fines. In the proposed agreement, the government stated that, "based upon all information presently available," its "present intention" was to terminate the investigation and not to charge any past or present officers or employees of the corporation in connection with the matters under investigation.

On September 26, 1979, MDC Chairman J. S. McDonnell, accompanied by counsel, met with Justice Department attorneys to discuss Appellants filed a motion to dismiss the indictments. First, they contended that the government had violated the requirements of Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), by failing to disclose its intention to prosecute individuals if the corporation rejected the proposed plea agreement. Second, they asserted that the decision to indict individual officers, after the corporation had rejected the plea agreement, created an "impermissible appearance of prosecutorial vindictiveness" in violation of the Due Process Clause as construed in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). ¹ The motion was supported by an extensive memorandum of points and authorities, Joint Appendix (J.A.) at 24a-52a, five affidavits filed by counsel for the corporation and for individual defendants, J.A. at 53a-66a, and several documents relating to the proposed plea agreement, J.A. at 67a-81a.

the proposed agreement. Objecting strongly to the racketeering count, Chairman McDonnell rejected the agreement. Shortly thereafter, the four appellants, individual officers of MDC, were notified that the prosecutors would recommend indictments against them. After several weeks of further discussions between Justice Department attorneys and counsel for MDC and individual officers, the grand jury indicted the corporation and the four individuals on three counts of mail fraud, 18 U.S.C. § 1341 (1976), and two counts of wire fraud, 18 U.S.C. § 1343 (1976). In addition, the individuals were charged with one count of conspiracy, 18 U.S.C. § 371 (1976), and the corporation was charged with five counts of false statements to a government agency, 18 U.S.C. § 1001 (1976).

In response, the government filed a detailed memorandum of factual and legal contentions, J.A. at 84a-131a, three affidavits by attorneys in the Justice Department, J.A. at 133a-138a, and materials related to plea negotiations in two partially analogous cases, J.A. at 139a-169a. The government described defendant's motion as "a one-sided, substantially incomplete and misleading history of the investigation and plea negotiations." J.A. at 84a. It also took issue with the defendants' interpretations of governing case law. J.A. at 108a-122a. The defendants submitted a reply memorandum. J.A. at 170a-188a.

After studying the submissions of the parties, the District Court denied the defendants' motion to dismiss. J.A. at 189a-195a. Although it recognized the existence of factual disputes, the court found that, "(e)ven relying solely upon facts uncontroverted by defendants, there is no indication of prosecutorial misconduct warranting dismissal of the indictment." J.A. at 191a. Rejecting the contention of "vindictive prosecution," the court held that in the "arm's-length give and take" of the plea bargaining process, the prosecutor was free to indict on a more serious offense after the rejection of a proposed agreement, providing that the charge was supported by probable cause. J.A. at 192a. It noted that the defendants had not previously been indicted on any lesser charge, and that the indictments "unquestionably emerged logically from the grand jury investigation, which had long ago targeted (appellants)." Id.

Turning to the defendants' contention that Bordenkircher v. Hayes, supra, established a constitutional requirement that the government explicitly inform a defendant of the consequences of rejecting a plea, the court found no indication that such notice was required in all cases. Bordenkircher could be distinguished, the court reasoned, because the defendant there had already been indicted and had no reason to expect that the government would bring more serious charges based on the same conduct. In contrast, in this case, "defendants at the very least knew that indictment of individuals was a possibility, since they had been targeted for several months." J.A. at 193a. In addition, the court accepted the government's argument that the defendants were This appeal seeks interlocutory review of the District Court's pretrial order. Appellants contend that "vindictive prosecution" claims belong in the small class of cases which may be appealed before final judgment. We conclude that interlocutory appeal in this case is neither permitted by statute nor mandated by the decisions of the Supreme Court, and that such appeals would seriously disrupt the efficient functioning of the criminal justice system. We therefore hold that these appellants must await final judgment before challenging their indictments on due process grounds relating to the plea negotiation process, and we do not reach the merits of their claims.

in effect, asking for specific performance of an unconsummated plea agreement. J.A. at 193a-194a. ²

II. INTERLOCUTORY APPEALS IN CRIMINAL CASES

Congress has limited the jurisdiction of the Courts of Appeal over the District Courts of the United States to "all final decisions." 28 U.S.C. § 1291 (1976). As Justice Frankfurter wrote in Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940), "Congress from the very beginning has, by forbidding piecemeal disposition on appeal of what for practical purposes is a single controversy, set itself against enfeebling judicial administration. * * * To be effective, judicial administration must not be leaden-footed." In the area of criminal justice, the Supreme Court has repeatedly emphasized the special importance of adhering to the final judgment rule. "(T)he delays and disruptions attendant upon intermediate appeal are especially inimical to the effective and fair administration of the criminal law." DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 658, 7 L.Ed.2d 614 (1962), quoted in Abney v. United States, 431 U.S. 651, 657, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977); see Cobbledick, supra, 309 U.S. at 325, 60 S.Ct. at 541.

One of the principal reasons for the Court's strict adherence to the doctrine of finality in criminal cases is the Sixth Amendment's guarantee of a speedy trial. "Fulfillment of this guarantee would be impossible if every pretrial order were appealable." United States v. MacDonald, 435...