U.S. v. Chick

• Citation: 61 F.3d 682
• Decision Date: 14 July 1995
• Docket Number: No. 94-30395,94-30395
• Parties: , 95 Cal. Daily Op. Serv. 5461, 95 Daily Journal D.A.R. 9301 UNITED STATES of America, Plaintiff-Appellee, v. Ronald D. CHICK, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 682

61 F.3d 682

64 USLW 2069, 95 Cal. Daily Op. Serv. 5461,

95 Daily Journal D.A.R. 9301

UNITED STATES of America, Plaintiff-Appellee, v. Ronald D. CHICK, Defendant-Appellant.

No. 94-30395.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 1995.

Decided July 14, 1995.

Todd Maybrown, Allen, Hansen & Maybrown, Seattle, WA, for defendant-appellant.

Joseph Douglas Wilson, U.S. Dept. of Justice, Washington, DC, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before: BROWNING, WRIGHT, and NELSON, Circuit Judges.

T.G. NELSON, Circuit Judge:

Ronald Chick interlocutorily appeals the district court's denial of a motion to dismiss his criminal prosecution on the basis of double jeopardy. Chick is charged with one count of conspiring to sell illegally modified satellite descramblers in violation of 18 U.S.C. Sec. 371 and Sec. 2512(1)(b), and seventeen counts of selling descramblers in violation of 18 U.S.C. Sec. 2512(1)(b). Chick contends the criminal charges should be dismissed because he has already been subjected to punishment for the same offenses through a civil forfeiture action under 18 U.S.C. Sec. 2513, which ultimately resulted in the entry of a consent judgment. We have jurisdiction over this interlocutory appeal, and we affirm.

I. FACTS AND PRIOR PROCEEDINGS

Based on an FBI agent's affidavit alleging that Chick illegally modified and sold television "descrambler modules," which allowed users to receive cable and satellite television channels without payment, a magistrate issued warrants to search Chick's house and storage locker. The warrants were executed on April 1, 1993, and a vast array of items were seized, including more than fifty descramblers.

On November 19, 1993, the Government filed a civil complaint seeking forfeiture of equipment seized from Chick's residence. The complaint alleged that the seized equipment was subject to forfeiture under 18 U.S.C. Sec. 2513, because it was used to intercept electronic communications through satellite television descramblers and the unauthorized interception of private satellite video communications, either scrambled or encrypted, for financial gain in violation of 18 U.S.C. Sec. 2511. On August 30, 1994, Chick and the Government entered into a consent judgment to settle the forfeiture action, and on August 31, 1994, the case was dismissed.

On July 26, 1994, a grand jury returned an indictment charging Chick and his sister with engaging in a conspiracy to "assemble, possess, and sell" satellite descrambler modules that allowed the descrambling of certain television programming without payment of subscription fees. Chick was also charged with twelve substantive violations of 18 U.S.C. Sec. 2512, for selling illegal descrambler units. On October 18, 1994, the grand jury returned a superceding indictment which charged Chick with five more counts of selling illegal descrambler units.

Before trial, Chick moved to dismiss the criminal charges against him on the grounds that they violated the Double Jeopardy Clause. Chick argued that the prior civil forfeiture of some of the equipment seized from his home constituted punishment for the same offenses charged in the criminal indictment. The district court denied the motion, concluding that the civil forfeiture action and the impending prosecution were not based upon the same offenses.

Based on United States v. Castiglione, 876 F.2d 73, 75 (9th Cir.1988), cert. denied, 493 U.S. 954, 110 S.Ct. 365, 107 L.Ed.2d 351 (1989), together with a finding that Chick had raised a colorable double jeopardy claim, the district court certified the issue for an interlocutory appeal and Chick timely filed his Notice of Appeal with this court.

II. JURISDICTION

The Government contends that we lack jurisdiction over this interlocutory appeal because Chick has not been subjected to multiple criminal prosecutions, and because he has yet to be subjected to multiple punishments. In essence, the Government argues that exposure to multiple punishments cannot be interlocutorily appealed because the multiple punishments prong of the Double Jeopardy Clause is not violated until the subsequent punishment is actually imposed. We disagree.

An appeal from a pretrial order denying a motion to dismiss an indictment is typically considered interlocutory, and, therefore, not appealable as a final decision under 28 U.S.C. Sec. 1291. However, where judgment has been entered in a civil forfeiture proceeding, and a defendant moves to dismiss a subsequent criminal prosecution on double jeopardy grounds, we find the pretrial order denying the motion to dismiss appealable under the collateral order exception to the final judgment rule and Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). ¹

In Abney, the Supreme Court specifically held that "courts of appeals may exercise jurisdiction over an appeal from a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds." Id. at 662, 97 S.Ct. at 2042 (emphasis added). Unlike this case, where Chick seeks to avoid an impending criminal prosecution, Abney involved a defendant's challenge to a second criminal prosecution. Nevertheless, the basis for permitting an interlocutory appeal on double jeopardy grounds in this case is no less compelling than it was in Abney. As the Court acknowledged:

Although it is true that a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds lacks the finality traditionally considered indispensable to appellate review, we conclude that such orders fall within the "small class of cases" that Cohen has placed beyond the confines of the final-judgment rule. In the first place there can be no doubt that such orders constitute a complete, formal and, in the trial court, a final rejection of a criminal defendant's double jeopardy claim. There are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred by the Fifth Amendment's guarantee. Hence, Cohen's threshold requirement of a fully consummated decision is satisfied.

Moreover, the very nature of a double jeopardy claim is such that it is collateral to, and separable from, the principal issue at the accused's impending criminal trial, i.e., whether or not the accused is guilty of the offense charged. In arguing that the Double Jeopardy Clause of the Fifth Amendment bars his prosecution, the defendant makes no challenge whatsoever to the merits of the charge against him. Nor does he seek suppression of evidence which the Government plans to use in obtaining a conviction. Rather, he is contesting the very authority of the Government to hale him into court to face trial on the charge against him.

Id. at 659, 97 S.Ct. at 2040 (footnote omitted) (citations omitted) (emphasis added).

The constitutional right directly involved in Abney was the right to avoid a second trial. Here, Chick's claimed right is the right to avoid a second punishment. That punishment can only be imposed after a trial. The Government is arguing that it is constitutionally permissible to subject a defendant to a trial even though the district court could not constitutionally impose any sentence if the jury returned a guilty verdict. Whatever may be the merits of the Government's constitutional argument, it has no merit in a Cohen and Abney context, where the issue is one of appealability.

For purposes of our Cohen analysis, it is established that the double jeopardy issue is collateral to the question of guilt, and it was finally decided by the district court when it denied Chick's motion. The third Cohen question, whether the right would be irretrievably lost, calls for a facially different analysis than in an Abney situation. There, the commencement of the trial was itself a violation of the right not to be tried twice. Here, the trial itself would not violate the constitution. However, if the defendant is convicted, and punishment imposed, then the constitutional right not to be doubly punished is lost, even if vindicated on appeal. The only way to avoid that result is to allow an appeal before trial. Permitting an interlocutory appeal prevents the loss of a constitutional right and is thus supported by the analysis in Abney.

In light of the foregoing reasoning and the judgment previously entered in the civil forfeiture proceeding involving Chick's property, we hold that an appeal of the pretrial order rejecting Chick's claim of double jeopardy falls within the "small class of cases" that have been placed "beyond the confines of the final-judgment rule." Id. at 659, 97 S.Ct. at 2040. Chick should not be forced "to endure the personal strain, public embarrassment, and expense of a criminal trial" if there is a colorable claim that the Double Jeopardy Clause has been violated. Id. at 661, 97 S.Ct. at 2041. On the contrary, if a criminal defendant such as Chick is "to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs." Id. at 662, 97 S.Ct. at 2041.

Accordingly, under 28 U.S.C. Sec. 1291 and Abney, we have jurisdiction to hear Chick's interlocutory appeal of the pretrial order denying his motion to dismiss the indictment on double jeopardy grounds.

III. STANDARD OF REVIEW

A district court's denial of a motion to dismiss an indictment on double jeopardy grounds is reviewed de novo. United States v. Goland, 897 F.2d 405, 408 (9th Cir.1990).

IV. DISCUSSION

"[T]he Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). Here we focus...