U.S. v. Greger

• Decision Date: 19 November 1981
• Docket Number: No. 80-1818,80-1818
• Citation: 657 F.2d 1109
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Victor GREGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1109

657 F.2d 1109

UNITED STATES of America, Plaintiff-Appellee, v. Victor GREGER, Defendant-Appellant.

No. 80-1818.

United States Court of Appeals, Ninth Circuit.

Argued March 12, 1981.

Submitted Sept. 15, 1981.

Decided Oct. 1, 1981.

Rehearing and Rehearing In Banc Denied Nov. 19, 1981.

William B. Terry, Goodman, Oshins, Brown & Singer, Las Vegas, Nev., for defendant-appellant.

C. Stanley Hunterton, Special Atty., Dept. of Justice, Las Vegas, Nev., for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before DUNIWAY and NORRIS, Circuit Judges, and HANSON, ^* District Judge.

DUNIWAY, Circuit Judge:

Greger appeals from a post-indictment, pre-trial order disqualifying his counsel. The order was entered after a hearing at which Greger refused to waive his Sixth Amendment right to conflict-free representation and at which Greger's counsel stated that he would not ask his other clients and former clients potential witnesses against Greger to waive their attorney-client privileges. Because we conclude that the district court's order is not appealable under 28 U.S.C. § 1291 and because the case does not present exceptional circumstances warranting issuance of a writ of mandamus, we dismiss the appeal without deciding the merits of the disqualification order.

I. Jurisdiction under 28 U.S.C. § 1291.

In Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, the Supreme Court held that a "small class" (Id. at 546, 69 S.Ct. at 1225) of orders are final and appealable under § 1291, even though they do not end the litigation. The Court has defined the attributes of such orders as follows: "(T)he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 1978, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351. The Court has included within this small class, inter alia, an order denying a defendant's claim that his impending trial puts him twice in jeopardy, Abney v. United States, 1977, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651, and an order denying a motion to reduce bail, Stack v. Boyle, 1951, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3. On the other hand, a pre-trial discovery order has been excluded from the Cohen category, United States v. Ryan, 1971, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85, as has a pre-trial order denying a defendant's motion to dismiss an indictment because of an alleged violation of his right to a speedy trial. United States v. MacDonald, 1978, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18. For further discussion of Cohen and the collateral order rule, see Firestone Tire & Rubber Co. v. Risjord, 1981, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571; United States v. Garner, 9 Cir., 1980, 632 F.2d 758, 761-66.

The question we confront here is whether a pre-trial order in a criminal case disqualifying defense counsel is a "final decision" within the collateral order doctrine of Cohen, supra, and therefore appealable under 28 U.S.C. § 1291. There is considerable case law on the appealability of pre-trial orders denying motions to disqualify counsel, but there is comparatively little on the same question where the order is granted.

In Cord v. Smith, 9 Cir., 1964, 338 F.2d 516, 521, clarified, 1966, 370 F.2d 418, we held, in the context of a civil suit, that an order denying a motion to disqualify counsel was not an appealable order. We approved the position then taken by the Second Circuit in Fleischer v. Phillips, 2 Cir., 1959, 264 F.2d 515, that an order denying a motion to disqualify did not fall within the "small class" of collateral orders made appealable by Cohen. However, we held further that "where a party attempts to appeal from an unappealable order, and the circumstances justify our doing so, we can, in our discretion, treat the proceedings as a petition under the All Writs Act, 28 U.S.C. § 1651." Id. at 521. Following Cord, in civil proceedings, we have treated appeals from orders denying motions to disqualify counsel as petitions for a writ of mandamus in some cases. See Unified Sewerage Agency v. Jelco Inc., 9 Cir., 1981, 646 F.2d 1339, 1343-1344; Trone v. Smith, 9 Cir., 1980, 621 F.2d 994, 996 & n.1; Chugach Electric Ass'n v. U.S.D.C. for the District of Alaska, 9 Cir., 1966, 370 F.2d 441, 442. See also United States v. State of Washington, 9 Cir., 1978, 573 F.2d 1121.

The appealability of pre-trial orders denying motions to disqualify has had a far more checkered history in other circuits. The Second Circuit, for example, in Harmar Drive-In Theatre, Inc. v. Warner Bros. Pictures, 2 Cir., 1956, 239 F.2d 555, concluded that both an order denying and an order granting a motion to disqualify are appealable under Cohen. It then reversed itself, at least as to an order denying a disqualification motion, in Fleischer v. Phillips, supra, only to return to Harmar in Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 2 Cir., 1974, in banc, 496 F.2d 800.

In part because of the influence of Silver Chrysler, a majority of the circuits came to hold that an order denying a disqualification motion is appealable. See, e. g., Akerley v. Red Barn System, Inc., 3 Cir., 1977, 551 F.2d 539; Aetna Casualty and Surety Company v. United States, 4 Cir., 1978, 570 F.2d 1197; Woods v. Covington County Bank, 5 Cir., 1976, 537 F.2d 804; Melamed v. ITT Continental Baking Co., 6 Cir., 1976, 534 F.2d 82; Fred Weber, Inc. v. Shell Oil, 8 Cir., 1977, 566 F.2d 602; Fullmer v. Harper, 10 Cir., 1975, 517 F.2d 20. See also Schloetter v. Railoc of Indiana, Inc., 7 Cir., 1976, 546 F.2d 706 (order granting motion to disqualify); 9 Moore's Federal Practice P 110.13(10).

But this was by no means the end of the story. The District of Columbia Circuit rejected the Silver Chrysler rule, in the case of an order denying a motion to disqualify, Community Broadcasting of Boston, Inc. v. FCC, D.C.Cir., 1976, 546 F.2d 1022, 1026-1027. And as the other courts of appeal that followed Silver Chrysler came to experience its effects, they too began a reevaluation. In Armstrong v. McAlpin, 2 Cir., 1980, 625 F.2d 433, 437-440, the Second Circuit itself abandoned Silver Chrysler. The Sixth Circuit, in Melamed v. ITT Continental Baking Co., 1979, 592 F.2d 290, 294-296, and the Eighth Circuit, in In re Multi-Piece Rim Products Liability Litigation, 8 Cir., 1980, in banc, 612 F.2d 377, vacated sub nom, Firestone Tire and Rubber Co. v. Risjord, supra, have both abandoned the Silver Chrysler rule, in cases of orders denying motions to disqualify. See also In re Fine Paper Antitrust Litigation, 3 Cir., 1980, 617 F.2d 22; In re Continental Investment Corp., 1 Cir., 1980, 637 F.2d 1, 4-8.

The Supreme Court finally laid to rest the question of the appealability of an order denying disqualification, at least in the context of civil suits, in Firestone Tire & Rubber Co. v. Risjord, supra. Emphasizing the narrowness of the Cohen exception and the policies served by § 1291's insistence that appeals await final judgment, the Court held that orders denying motions to disqualify counsel are not appealable orders. The Court reasoned that such orders failed that part of the Cohen test which requires that the order "be effectively unreviewable on appeal from a final judgment":

The properiety (sic) of the District Court's denial of a disqualification motion will often be difficult to assess until its impact on the underlying litigation may be evaluated, which is normally only after final judgment. The decision whether to disqualify an attorney ordinarily turns on the peculiar factual situation of the case then at hand, and the order embodying such a decision will rarely, if ever, represent a final rejection of a claim of fundamental right that cannot effectively be reviewed following judgment on the merits.... (S)hould the Court of Appeals conclude after the trial has ended that permitting continuing representation was prejudicial error, it would retain its usual authority to vacate the judgment appealed from and order a new trial. That remedy seems plainly adequate....

(449 U.S. at 377, 101 S.Ct. at 675).

The Court noted that in certain circumstances a party might attempt to have the order denying disqualification certified for interlocutory appeal under 28 U.S.C. § 1292(b) and that, in "exceptional circumstances," a writ of mandamus might be available from the court of appeals. The Court explicitly reserved the question whether an order granting disqualification would be appealable and whether an order denying a disqualification motion in a criminal case might be appealable.

We believe that the Court's reasoning in Firestone is equally applicable to the case at bar, and that Greger's "plainly adequate" remedy is to obtain review of this order, and other claims of error, should he so desire, at the conclusion of the trial, if he is convicted. The fact that Firestone was a civil action while this is a criminal proceeding does not, we think, distinguish the two cases. Indeed, if anything the Cohen rule is more sparingly applied in the criminal context. As the Court has repeatedly stated "(a)dherence to (the) rule of finality has been particularly stringent in criminal prosecutions because 'the delays and disruptions attendant upon intermediate appeal,' which the rule is designed to avoid, 'are especially inimical to the effective and fair administration of the criminal law.' " Abney v. United States, supra, 431 U.S. at 657, 97 S.Ct. at 2039, quoting DiBella v. United States, 1962, 369 U.S. 121, 126, 82 S.Ct. 654, 657, 7 L.Ed.2d 614. It is true that in a criminal context we deal with the party's Sixth Amendment right to counsel of choice, but if this right may be protected by appeal after final judgment, the addition of this constitutional element makes no difference to our analysis. See ...