U.S. v. Grabinski, 81-1812

• Decision Date: 26 February 1982
• Docket Number: No. 81-1812,81-1812
• Citation: 674 F.2d 677
• Parties: UNITED STATES of America, Appellee, v. John M. GRABINSKI, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 677

674 F.2d 677

UNITED STATES of America, Appellee, v. John M. GRABINSKI, Appellant.

No. 81-1812.

United States Court of Appeals,

Eighth Circuit.

Feb. 26, 1982.

Donald W. MacPherson, Phoenix, Ariz., for appellant.

Michael L. Paup and John F. Murray, Tax Div., Criminal Section, Dept. of Justice, Washington, D. C., for appellee.

Before LAY, Chief Judge, HEANEY, BRIGHT, ROSS, STEPHENSON, HENLEY, McMILLIAN and ARNOLD, Circuit Judges.

PER CURIAM.

In late 1980, defendant John M. Grabinski was indicted on a single count of failure to file income tax returns for the year 1976. The indictment was sought and returned in the Eastern District of Missouri. Grabinski moved for a change of venue to the District of Minnesota under Fed.R.Crim.P. 18 arguing that he was a resident of St. Paul, Minnesota at the time the returns at issue came due. The district court denied the motion. On March 23, 1981, however, the court, on its own motion, dismissed the case without prejudice for lack of jurisdiction.

On March 30, 1981, the government filed an information in the District of Minnesota charging defendant with two counts of failure to file, in 1975 and 1976. Defendant made various motions to dismiss among which were motions to dismiss based on the double jeopardy clause, allegations of vindictive prosecution, violation of The Speedy Trial Act, and lack of probable cause. These motions were denied.

The defendant filed a notice of appeal. This court dismissed the entire appeal for lack of jurisdiction on the ground that it was based on an interlocutory rather than a final order, 664 F.2d 293. Defendant then filed a petition for rehearing en banc. We grant the petition for rehearing en banc, but dismiss the appeal for lack of jurisdiction.

We hold that the orders denying defendant's motions to dismiss because of alleged vindictive prosecution, denial of a speedy trial, and lack of probable cause are not final and, therefore, are not appealable orders. We hold that a district court's order denying a defendant's motion to dismiss based on a claim of double jeopardy is appealable only if a colorable claim is made. In the present case, the order denying defendant's motion based on his claim of double jeopardy is not an appealable order because defendant failed to present a colorable claim of double jeopardy.

Title 28 U.S.C. § 1291 (1981) provides for appeal only "from all final decisions of the district courts." This statute and its judicial application reflect a strong policy against interlocutory or "piecemeal" appeals. This policy is particularly strong in criminal prosecutions. "(T)he delays and disruption 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, 657, 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 v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 541, 84 L.Ed.2d 783 (1940). ¹

The final judgment rule is, of course, subject to a "collateral order" exception established in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). ²

I. Double Jeopardy.

Categories of appealable orders under Cohen must be narrowly and sharply defined. The Supreme Court has upheld use of the "collateral order" exception in criminal prosecutions in three types of cases. It has permitted interlocutory appeal of the denial of a motion to reduce excessive bail, Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951); the denial of a motion to dismiss an indictment on double jeopardy grounds, Abney ; and the denial of a congressman's motion to dismiss a prosecution prohibited by the speech and debate clause, Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979).

In United States v. MacDonald, 435 U.S. 850, 862-63, 98 S.Ct. 1547, 1553-54, 56 L.Ed.2d 18 (1978), the Supreme Court noted that double jeopardy claims constitute a more appropriate category of appealable orders than speedy trial claims because the nature of a double jeopardy claim "inherently limits the availability of the claim." However, a defendant must make a colorable showing of previous jeopardy and the threat of repeated jeopardy in order to state a claim of double jeopardy. If a defendant does not make a colorable showing of the elements of double jeopardy, the filing of a notice of appeal from the denial of his or her motion to dismiss should not divest the district court of jurisdiction. See Riddle v. Hudgins, 58 F. 490 (8th Cir. 1893); United States v. Hitchmon, 602 F.2d 689, 691 (5th Cir. 1979) (en banc) (notice of appeal from a nonappealable order does not render void acts of district court taken before dismissal of appeal). The contrary rule would render the district courts powerless to prevent dilatory tactics.

The implementation of this rule requires a procedure which both respects the principal established in Abney and prevents its abuse. In Abney, the Supreme Court stated that courts of appeals have supervisory power to establish procedures sufficient to strike this balance. 431 U.S. at 662 n.8, 97 S.Ct. at 2042 n.8. The Fifth Circuit established such a procedure in United States v. Dunbar, 611 F.2d 985, 988-89 (5th Cir. 1980). We adopt substantially the same procedure.

Henceforth, we request a district court judge who denies a motion to dismiss based on double jeopardy to make a written finding of whether the motion is frivolous or nonfrivolous. If the motion is found to be frivolous, the filing of a notice of appeal will not divest the district court of jurisdiction. This court will then review the appeal on an expedited schedule. This court is already empowered to protect a defendant's rights by staying proceedings below pending disposal of an appeal. The written finding of lack of merit and the expedited review combined with existing power to issue stays should protect defendants' right not to be twice placed in jeopardy for the same crime.

In the present case, defendant argues that the filing of the two-count information in the District of Minnesota absent a written order dismissing the prior Missouri indictment subjected him to double jeopardy because the charge that he failed to file returns in 1976 was contained in both charging documents. ³ However, defendant concedes that jeopardy had not attached under either the indictment or the information. Jeopardy does not attach until a jury is empaneled and sworn or, in a bench trial, until the judge begins to receive evidence. United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977). This court has explicitly held that the government may obtain a second indictment prior to dismissal of a prior indictment "so long as jeopardy had not attached to any one of those indictments." DeMarrias v. United States, 487 F.2d 19, 21 (8th Cir. 1973), cert. denied, 415 U.S. 980, 94 S.Ct. 1570, 39 L.Ed.2d 877 (1974); accord United States v. Cerilli, 558 F.2d 697, 701 (3rd Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 507, 54 L.Ed.2d 452 (1977). We find the defendant's appeal based on the double jeopardy clause does not state a colorable claim. Therefore, we dismiss the appeal for lack of jurisdiction.

II. Vindictive Prosecution.

Defendant argues that the filing of an information containing charges of failure to file returns in both 1975 and 1976, after he successfully asserted his right to be tried in the district where the offense was committed, Fed.R.Crim.P. 18, constituted vindictive prosecution. He alleges that the prosecutor subjected him to an increased risk by adding the count covering 1975 in order to penalize him for seeking the change of venue.

We find denial of defendant's motion to dismiss based on this claim is an interlocutory ruling. See United States v. Brizendine, 659 F.2d 215 (D.C.Cir.1981). We hold the denial of a motion to dismiss based on a claim of vindictive prosecution cannot be appealed until a final judgment on the merits of the case is rendered.

III. Speedy Trial.

Defendant urges this court to review the denial of his motion to dismiss under The Speedy Trial Act, 18 U.S.C. § 3161 et seq. (1981). He acknowledges that the Supreme Court in MacDonald held that a speedy trial claim made under the sixth amendment was not an appealable collateral order under Cohen.

Although defendant's motion was based on The Speedy Trial Act rather than the sixth amendment, the Supreme Court's application of the Cohen criteria is still valid. The right to dismissal under the Act, like that under the sixth amendment, MacDonald, 435 U.S. at 860-61, 98 S.Ct. at 1552-53, does not embody a right not to be tried. Thus the right will not be irreparably lost if defendant cannot appeal his motion to dismiss before trial. United States v. Mehrmanesh, 652 F.2d 766 (9th Cir. 1981); United States v. Bilsky, 664 F.2d 613 (6th Cir. 1981). Although the Act reduces the initial determination of whether a violation exists to a calculation of the number of days between indictment and trial which is wholly collateral to a consideration of the merits, it also provides for the exclusion of certain periods of time based on considerations related to the character of the trial. See, e.g., 18 U.S.C. § 3161(h)(8)(A) (1981). To the extent that these exceptions are involved, the order is neither final nor wholly collateral and none of the Cohen criteria is present. Mehrmanesh, 652 F.2d at 770. Thus the denial of defendant's motion to dismiss under The Speedy Trial Act is not an appealable "collateral order."

IV. Due Process.

Defendant also seeks to appeal the denial of motions relating to allegations that the information was filed without an affidavit of probable cause and that he was denied a preliminary or probable cause hearing. These are precisely the type of pretrial rulings which the policy against...