U.S. v. O'Keefe, 99-30027

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation169 F.3d 281
Docket NumberNo. 99-30027,99-30027
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Michael O'KEEFE, Sr., Eric Schmidt, John O'Brien, and Gary Bennett, Defendants-Appellees.
Decision Date09 March 1999

Page 281

169 F.3d 281
UNITED STATES of America, Plaintiff-Appellant,
Michael O'KEEFE, Sr., Eric Schmidt, John O'Brien, and Gary
Bennett, Defendants-Appellees.
No. 99-30027.
United States Court of Appeals,
Fifth Circuit.
March 9, 1999.

Stephen A. Higginson, Asst. U.S. Atty., New Orleans, LA, for Plaintiff-Appellant.

Richard T. Simmons, Jr., Hailey, McNamara, Hall, Larmann & Papale, Metairie, LA, for O'Keefe.

John R. Martzell, Martzell & Bickford, New Orleans, LA, for Schmidt.

Bruce Charles Ashley, New Orleans, LA, for O'Brien and Bennett.

Appeal from the United States District Court for the Eastern District of Louisiana; Mary Ann Vial Lemmon, Judge.

Before HIGGINBOTHAM, JONES and DENNIS, Circuit Judges.


It is ordered that the motion of appellant for temporary stay pending appeal is GRANTED.

DENNIS, Circuit Judge, dissents for the reasons attached.

DENNIS, Circuit Judge, dissenting:

The defendants applied to the district court to continue bail pending their appeals from their convictions and sentences for mail and wire fraud and related offenses. The district court granted their applications, and the defendants were released after posting bonds of $1 million (O'Keefe), $500,000 (Schmidt), $500,000 (O'Brien) and $250,000 (Bennett). The government appealed from the district court's order as authorized by 18 U.S.C. § 3731.

Rule 9(b) of the Federal Rules of Appellate Procedure provides that "[a]pplication for release after a judgment of conviction shall be made in the first instance in the district court." In reviewing the district court's decision, a court of appeals is free to make an independent determination on the merits of the prisoner's application. United States v. Clark, 917 F.2d 177, 179-80 (5th Cir.1990); United States v. Hawkins, 617 F.2d 59 (5th Cir.), cert. denied, 449 U.S. 952, 101 S.Ct. 355, 66 L.Ed.2d 215 (1980); United States v. Provenzano, 605 F.2d 85, 92-93 (3rd Cir.1979). However, the district court's conclusion is entitled to "great deference." Harris v. United States, 404 U.S. 1232, 1232, 92 S.Ct. 10, 30 L.Ed.2d 25 (1971); United States v. Oliver, 683 F.2d 224, 235 (7th Cir.1982); United States v. Gigax, 605 F.2d 507 (10th Cir.1979); United States v. Provenzano, 605 F.2d at 91-92. See United States v. Crabtree, 754 F.2d 1200 (5th Cir.1985).

To obtain release pending appeal, a convicted defendant must establish four factors: (1) that he is not likely to flee or pose a danger to the safety of others; (2) that the appeal is not for purpose of delay; (3) that the appeal raises a substantial question of law or fact; and (4) that the substantial question, if decided favorably to the defendant, is likely to result in reversal, in an order for a new trial, in a sentence without punishment, or in a sentence with reduced imprisonment. 18 U.S.C. § 3143(b). United States v. Clark, 917 F.2d at 179. In its order admitting the defendants to bail pending appeal, the district court found that the defendants passed all four prongs of this test. Reviewing the district court's written reasons and oral statements at the hearing on this issue with deference, and independently reviewing relevant portions of the record of the trial and post-trial proceedings, I concur with the district court's determinations, and would affirm the district court's judgment admitting the defendants to bail pending their appeals.

In the present case, the only prong of the four-part test that is problematic or that warrants any discussion is the third one: whether the defendants' appeals raise a substantial question of law or fact, i.e., " 'one of

Page 282

more substance than would be necessary to a finding that it was not frivolous[;] ... a "close" question or one that very well could be decided the other way.' " United States v. Valera-Elizondo, 761 F.2d 1020, 1024 (5th Cir.1985)(quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir.1985)).


After the jury convicted the defendants of conspiracy, wire fraud, mail fraud, and money laundering, the trial judge, in the same order in which he recused himself, granted the defendants' motion for a new trial; several weeks later, he denied the government's motion for reconsideration. The government filed an interlocutory appeal under 18 U.S.C. § 3731 contesting the trial judge's new trial order and contending that the trial judge's order denying the government's motion for reconsideration was void because of his prior order disqualifying himself in the case. In O'Keefe I, a panel of this court held that the district court judge erred in performing a discretionary act by ruling on the motion for reconsideration after he had recused himself, but that the error did not have to be vacated because it was "harmless." 1 O'Keefe I, 128 F.3d at 891, 892-93. The O'Keefe I panel then proceeded to review the district judge's ruling on the defendants' motion for new trial on the merits. The panel concluded that the judge's ruling constituted an abuse of discretion or legal error in that (i) the government's knowing failure to correct perjured testimony did not violate the defendants' due process rights under Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), because the falsehoods were not material, i.e., there was not "a reasonable probability that the jury would have reached a different outcome even had it been fully aware of all of the alleged inconsistencies and falsehoods in [the prosecution witness] Donaldson's testimony," O'Keefe I, 128 F.3d at 898; (ii) in the absence of a material Napue violation, the trial judge's additional findings, viz., that the government impermissibly delayed the disclosure of Brady material, that the inconsistencies in prosecution witness Moore's testimony clouded or weakened the government's case, and that the prosecution attempted to mislead the defense by changing the indictment, were insufficient to warrant the granting of a new trial in the "interests of justice" under Fed.R.Crim.P. 33. 2


The government contends that the defendants' appeal cannot raise any "substantial issue of law" with respect to government misconduct and perjury by prosecution witnesses because any such purported issue is foreclosed by the law of the case doctrine. The government argues that United States v. O'Keefe, 128 F.3d 885 (5th Cir.1997) (O'Keefe I ), decided upon rules of law that will continue to govern the same issues during the defendants' appeal of right from final judgment. However, whether the law of the case doctrine precludes the direct appeal panel from considering such issues is itself a threshold "substantial issue of law." The question of the applicability of the law of the case doctrine is substantial, not only because it is "close" and of more substance than "non-frivolous" questions, but also because it involves

Page 283

novel issues concerning the recusal of judges, harmless error, and the effects of government interlocutory appeals in criminal cases upon defendants' fundamental rights to appeal and to have a full and fair day in court.

As defined by the Supreme Court, the doctrine of the law of the case " 'posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case.' This rule of practice promotes the finality and efficiency of the judicial process by 'protecting against the agitation of settled issues.' " Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (citing Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983) and 1B J. Moore, J. Lucas, & T. Currier, Moore's Federal Practice p 0.404, at 118 (2d ed.1984)).

The law of the case doctrine attaches in interlocutory appeals only upon matters that have actually been decided. As to decisions upon rules of law, the interlocutory appeal establishes the law of the case. Royal Ins. Co. v. Quinn-L Capital Corp., 3 F.3d 877, 881 (5th Cir.1993). Factual determinations in an interlocutory appeal will generally not establish the law of the case. Id. See 18 Moore's Federal Practice § 134.20 (3d ed.1998) ("Unlike the doctrine of claim preclusion, the law of the case doctrine does not apply to issues or claims that were not actually decided; for this reason, failure to raise an issue on interlocutory appeal should not operate to preclude the issue on a later appeal from a final judgment, even if other issues were raised by the party or an opponent in a permitted interlocutory appeal.").

The law of the case doctrine applies to an issue that has actually been decided, not to statements made by the court in passing, or stated as possible alternatives, or dictum. 18 Moore's Federal Practice §§ 134.20, 134.21 (3d. ed.1998) (citing, e.g., Royal Ins. Co. v. Quinn-L Capital Corp., 3 F.3d at 880; Great Lakes Dredge & Dock Co. v. Tanker Robert Watt Miller, 957 F.2d 1575, 1578 (11th Cir.), cert. denied, 506 U.S. 981, 113 S.Ct. 484, 121 L.Ed.2d 388 (1992)).

When the law of the case doctrine is applied by a court to its own prior decisions, it is properly characterized as discretionary in nature. 18 Moore's Federal Practice § 134.21 (3d ed.1998). The doctrine " 'merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.' " Christianson v. Colt Industries, 486 U.S. at 817, 108 S.Ct. 2166 (quoting Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912)(Holmes, J.) (citations omitted)). "A court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was 'clearly erroneous and would work a manifest injustice.' " Id. (quoting Arizona v. California, 460 U.S. at 618, n. 8, 103 S.Ct. 1382 (citation omitted)).

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