U.S. v. Dior

• Decision Date: 15 March 1982
• Docket Number: No. 80-1497,80-1497
• Citation: 671 F.2d 351
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Maria Ann DIOR, Defendant-Appellee. UNITED STATES of America, Petitioner, v. UNITED STATES DISTRICT COURT FOR the WESTERN DISTRICT OF WASHINGTON, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 351

671 F.2d 351

UNITED STATES of America, Plaintiff-Appellant, v. Maria Ann DIOR, Defendant-Appellee.

UNITED STATES of America, Petitioner, v. UNITED STATES DISTRICT COURT FOR the WESTERN DISTRICT OF

WASHINGTON, Respondent.

No. 80-1497.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 8, 1981.

Decided March 15, 1982.

Christine McKenna Moore, Seattle, Wash., argued, for plaintiff-appellant; John C. Merkel, U. S. Atty., Seattle, Wash., on brief.

Irwin Schwartz, Federal Public Defender, Seattle, Wash., for defendant-appellee.

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

Before PREGERSON and POOLE, Circuit Judges, and KARLTON, ^* District judge.

PREGERSON, Circuit Judge:

The principal question this criminal case requires us to decide is whether an order granting a new trial, after a jury's verdict of guilty, is appealable before retrial.

On May 2, 1978, a federal grand jury returned a three count indictment against appellee, Maria Ann Dior. Count 1 charged her with knowingly smuggling four fur coats into the United States in violation of 18 U.S.C. § 545. ¹ Count 2 charged her with wilfully attempting to introduce imported merchandise by means of false statements in violation of 18 U.S.C. § 542. ² Count 3 charged her with knowingly transporting stolen merchandise with a value of $5,000 or more in interstate commerce in violation of 18 U.S.C. § 2314. ³

The jury acquitted Dior on count 2, but found her guilty on counts 1 and 3. She filed a post-trial motion for judgment of acquittal under Fed.R.Crim.P. 29(c) or for a new trial under Fed.R.Crim.P. 33. The district court granted a new trial on count 1 and entered a judgment of acquittal on count 3. The Government appeals both rulings and alternatively challenges the new trial order by writ of mandamus.

Count 1: Appealability of the New Trial Order

The district court determined that an incorrect instruction, submitted by the Government, had been read to the jury, and that because much of the evidence against Dior was circumstantial, the error could not be characterized as harmless. Accordingly, the court granted appellee's motion for a new trial on count 1. Because we hold that a new trial order in a criminal case is not appealable before retrial, we need not determine whether the instruction in question was correct.

The right to appeal and appellate jurisdiction are both creatures of statute. To prosecute its appeal before this court, appellant must show that it has the right to appeal and that the order appealed from comes within the terms of a statutory grant of appellate jurisdiction. See generally Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977). 28 U.S.C. § 1291 grants the courts of appeals jurisdiction to review all "final decisions of the district courts." ⁴ It is settled in this circuit that new trial orders in civil cases are not appealable until after retrial because such orders are interlocutory rather than final. DePinto v. Provident Security Life Insurance Co., 323 F.2d 826 (9th Cir. 1963); Gilliland v. Lyons, 278 F.2d 56 (9th Cir. 1960); United States v. Hayes, 172 F.2d 677 (9th Cir. 1949); Long v. Davis, 169 F.2d 982 (9th Cir. 1948). We have yet to decide whether new trial orders in criminal cases are appealable before retrial. ⁵ We conclude that they are not.

The consistent policy of the federal judiciary has been to avoid interlocutory or piecemeal appellate review. See, e.g., United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978); DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). This policy has particular force in criminal cases, where delay often would impair the proper functioning of our criminal justice system. Thus, the Supreme Court has reiterated the traditional requirement of a final judgment as a predicate to federal appellate jurisdiction. See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); see also United States v. Griffin, 617 F.2d 1342 (9th Cir. 1980). "In 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.' " Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L.Ed. 1377 (1956), quoting St. Louis, Iron Mountain & Southern R. Co. v. Southern Express Co., 108 U.S. 24, 28, 2 S.Ct. 6, 8, 27 L.Ed. 638 (1883); United States v. Carnes, 618 F.2d 68 (9th Cir. 1980). ⁶ This rule applies in criminal as well as civil cases. Parr v. United States, 351 U.S. at 518, 76 S.Ct. at 916. "Final judgment in a criminal case means sentence. The sentence is the judgment." Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 165, 82 L.Ed. 204 (1937), quoted in Parr v. United States, 351 U.S. at 518, 76 S.Ct. at 916.

A district court's order granting a new trial in a criminal case is not a final decision; it does not resolve the ultimate question of the guilt or innocence of the accused of the crime charged in the indictment, much less determine a sentence. Thus authority to appeal under 28 U.S.C. § 1291 is lacking. The Government argues, however, that statutory authority to appeal can be found under the Criminal Appeals Act, 18 U.S.C. § 3731. ⁷ 18 U.S.C. § 3731 was originally enacted in the context of federal policy, deeply rooted in the common law, that the sovereign has no right to appeal an adverse criminal decision unless expressly authorized by statute to do so. See Arizona v. Manypenny, 451 U.S. 232, 246, 101 S.Ct. 1657, 1666, 68 L.Ed.2d 58 (1981). This policy had been so strictly applied that the appellate jurisdiction apparently conferred by section 1291 was insufficient, standing alone, to authorize a government appeal from a final decision. DiBella v. United States, 369 U.S. 121, 130, 82 S.Ct. 654, 659, 7 L.Ed.2d 614 (1962). The original version of section 3731, passed in 1907, narrowly circumscribed the Government's right to appeal, but the 1970 amendments to section 3731 significantly expanded its scope. In fact, the Supreme Court has stated that by amending section 3731, "Congress intended to remove all statutory barriers to government appeals and to allow appeals whenever the Constitution would permit." United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975). Based on this language in Wilson and the legislative history of the Criminal Appeals Act, the Government argues that section 3731 was intended to authorize government appeals from an order granting a new trial in a criminal prosecution.

We do not agree. Justice Stevens recently pointed out: "There is a distinction between a court's power to accept an appeal and an executive's power to prosecute an appeal." Arizona v. Manypenny, 451 U.S. 232, 247, 101 S.Ct. 1657, 1669, 68 L.Ed.2d 58 (1981) (Stevens, J., concurring). Thus there are two jurisdictional questions presented by any appeal prosecuted by the Government: (1) whether the Government is permitted by statute to take the appeal, and (2) whether the challenged order, decision, or judgment itself is appealable. Section 3731 as construed allows the Government to take an appeal when permitted by the Constitution. Section 3731, however, does not purport to eliminate section 1291's limitations on a court's power to accept an appeal. The legislative history of section 3731 does not reveal, and we cannot presume, that Congress intended to abolish the final judgment rule of section 1291 for criminal appeals prosecuted by the Government. To accept the Government's position would result in an unwarranted extension of section 3731. Although this court fully embraces the congressional mandate that section 3731 be liberally construed, see United States v. Hetrick, 644 F.2d 752 (9th Cir. 1981); United States v. Marubeni America Corp., 611 F.2d 763 (9th Cir. 1980), we cannot overlook the fact that section 3731 does not enlarge our power to accept an appeal under section 1291. In liberally construing section 3731, we recognize the Government's right to appeal only those orders that are final decisions under section 1291. ⁸

Apart from legislative history and the language of Wilson, the Government argues that there is evidence other than legislative history and the language of Wilson that Congress intended to encroach upon the final judgment rule when it amended section 3731. Pointing out that section 3731, as amended in 1970, permits an appeal from suppression orders, which are not final decisions under section 1291, the Government concludes that an order granting a new trial is similarly appealable.

The analogy is inapt. Section 3731 permits a government appeal from a suppression order only in limited circumstances. The United States Attorney must certify that the appeal is not taken for purposes of delay and that the evidence is substantial proof of a fact material to the proceedings. These restrictions demonstrate that Congress recognized the importance of minimizing appellate interference in the trial process-a factor supporting the nonappealability of the new trial order here. In light of this congressional concern, we should not extend Congress's limited waiver of the final judgment rule for suppression orders to new trial orders.

Moreover, the statutory history of the 1970 amendments to section 3731 indicates that the overriding purpose of the provision permitting immediate government appeals from suppression orders was to deal with the harm which the lack of government appeals worked on the development of the law of suppression. This harm included inconsistent rulings at the trial court level and the development of the law of suppression without the full benefit of appellate review. See generally United States v. Greely, 413 F.2d 1103, 1104 (D.C. Cir. 1969).

None of these purposes is served by permitting an...