U.S. v. Dunbar, Nos. 78-1602

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before COLEMAN, Chief Judge, BROWN, GOLDBERG, AINSWORTH, GODBOLD, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, and
• Citation: 611 F.2d 985
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William George DUNBAR, M. D., Defendant-Appellant.
• Docket Number: 78-5050,Nos. 78-1602
• Decision Date: 28 January 1980

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611 F.2d 985 UNITED STATES of America, Plaintiff-Appellee,
v.
William George DUNBAR, M. D., Defendant-Appellant. Nos. 78-1602, 78-5050. United States Court of Appeals,
Fifth Circuit. Jan. 28, 1980.

Page 986

Randall M. Clark, Brunswick, Ga., for defendant-appellant.

Wm. T. Moore, Jr., U. S. Atty., Katherine L. Henry, William H. McAbee, II, Asst. U. S. Attys., Savannah, Ga., Wade Livingston, William C. Bryson, Washington, D. C., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Georgia.

Before COLEMAN, Chief Judge, BROWN, GOLDBERG, AINSWORTH, GODBOLD, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, and THOMAS A. CLARK, Circuit Judges.

RONEY, Circuit Judge:

A panel of this Court vacated William George Dunbar's convictions on the ground that his filing of a notice of appeal from the district court's denial of a double jeopardy motion divested that court of jurisdiction to try him. United States v. Dunbar, 591 F.2d 1190 (5th Cir. 1979). This Court granted a petition for rehearing En banc, thus vacating the panel opinion. 600 F.2d 1192 (5th Cir. 1979); 5th Cir. R. 17.

Sitting En banc, we now reach a result contrary to the panel decision. In the exercise of our supervisory jurisdiction, we hold that an appeal from the denial of a frivolous double jeopardy motion does not divest the district court of jurisdiction to proceed with trial, if the district court has found the motion to be frivolous. Deciding that the convictions in this case should not be vacated on jurisdictional grounds, we affirm the denial of the double jeopardy plea and remand the case to the panel for determination of the other issues raised on appeal.

Dunbar was convicted by a jury on December 22, 1977 of conspiracy to possess Methaqualone with intent to distribute. 21 U.S.C.A. §§ 841(a)(1), 846. At the time of that trial, Dunbar had also been charged in another indictment with five counts of the substantive offense of distributing controlled substances, including Methaqualone and four other drugs, by means of prescriptions not in the usual course of professional practice. 21 U.S.C.A. § 841(a)(1).

On December 27, 1977, five days later, Dunbar pled the conspiracy trial as a double jeopardy bar to prosecution on the pending indictment, arguing that the same evidence used in the earlier trial would be used against him in the trial on the substantive offenses. Papers filed by Dunbar on December 30 indicated his intent to appeal a denial of his double jeopardy motion. The record does not, however, evidence that any ruling had yet been made by the district court.

At 8:30 a. m. on Tuesday, January 3, 1978, the date set for trial on the substantive offenses, Dunbar filed a motion to prevent the Government from using in the impending trial the evidence used in the previous conspiracy trial. At 9:00 a. m. the district court denied that motion and issued a written order overruling Dunbar's double jeopardy plea. Dunbar immediately filed notice of appeal from the order, but he did not seek a writ of mandamus or prohibition

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to halt the trial. The district court proceeded with the trial, which ended the following day when the jury returned a guilty verdict on each count. Those convictions are appealed here. The prior conviction for conspiracy has heretofore been affirmed by this Court. United States v. Dunbar, 590 F.2d 1340 (5th Cir. 1979).

The Supreme Court has held that the denial of a double jeopardy motion is an appealable order under 28 U.S.C.A. § 1291. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Historically, the filing of a notice of appeal has generally given the appellate court sole jurisdiction and divested the trial court of jurisdiction to proceed with the case. See Kirtland v. J. Ray McDermott & Co., 568 F.2d 1166 (5th Cir. 1978); Bush v. United Benefit Life Insurance Co., 311 F.2d 893 (5th Cir. 1963).

We recently held, however, in United States v. Hitchmon, 602 F.2d 689, 691 (5th Cir. 1979) (En banc ), that "the notice of appeal from a nonappealable order does not render void for lack of jurisdiction acts of the trial court taken in the interval between the filing of the notice and the dismissal of the appeal . . . ." The Government had filed a notice of appeal but could not properly appeal the trial court's grant of a new trial motion. United States v. Alberti, 568 F.2d 617, 621 (2d Cir. 1977); 18 U.S.C.A. § 3731; See Wiggs v. Courshon, 485 F.2d 1281, 1282 (5th Cir. 1973). We declined to reverse convictions rendered in a trial conducted during the pendency of the appeal. Hitchmon brought this Circuit in line with the First, Eighth, Ninth and Tenth Circuits on this issue. Hodgson v. Mahoney, 460 F.2d 326 (1st Cir.), Cert. denied, 409 U.S. 1039, 93 S.Ct. 519, 34 L.Ed.2d 488 (1972); Riddle v. Hudgins, 58 F. 490 (8th Cir. 1893); Ruby v. Secretary of U. S. Navy, 365 F.2d 385 (9th Cir. 1966), Cert. denied, 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442 (1967); Euziere v. United States, 266 F.2d 88 (10th Cir. 1959), Vacated on other grounds, 364 U.S. 282, 80 S.Ct. 1615, 4 L.Ed.2d 1720 (1960).

The case presently before us is significantly more difficult than Hitchmon. The order here was clearly appealable...