U.S. v. Leichter, s. 97-1358

• Decision Date: 08 May 1998
• Docket Number: 97-1478,Nos. 97-1358,97-1359,s. 97-1358
• Citation: 160 F.3d 33
• Parties: UNITED STATES, Appellee, v. Lee H. LEICHTER, Defendant, Appellant. UNITED STATES, Appellee, v. John F. CVINAR, Defendant, Appellant. UNITED STATES, Appellee, v. David W. PRIGMORE, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 33

160 F.3d 33

UNITED STATES, Appellee, v. Lee H. LEICHTER, Defendant, Appellant.

UNITED STATES, Appellee, v. John F. CVINAR, Defendant, Appellant.

UNITED STATES, Appellee, v. David W. PRIGMORE, Defendant, Appellant.

Nos. 97-1358, 97-1359, 97-1478.

United States Court of Appeals, First Circuit.

Heard May 8, 1998.

Decided Nov. 3, 1998.

Richard G. Taranto, with whom Farr & Taranto, Robert D. Keefe, Daniel W. Halston, Jason T. Sherwood, Hale and Dorr LLP, Andrew Good, Harvey A. Silverglate, Silverglate & Good, William H. Kettlewell, Amy Baron-Evans, Michael B. Galvin and Dwyer & Collora, LLP were on brief, for appellants.

Stephen Andrew Higginson, Special Assistant United States Attorney, with whom Mark W. Pearlstein, Acting United States Attorney, and Michael Loucks, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.

TORRUELLA, Chief Judge.

Defendants Lee H. Leichter, David W. Prigmore, and John F. Cvinar, former employees of C.R. Bard, Inc. ("Bard"), who were charged in a multi-count indictment arising from Bard's manufacturing and distribution of heart catheters, appeal their convictions on one count each of conspiring to defraud the Food and Drug Administration ("FDA") by impairing its lawful governmental functions. They were each sentenced to 18 months of imprisonment and two years of supervised release. However, the execution of their sentences was stayed pending the outcome of appeal. Appellants contend that, at this time, we lack appellate jurisdiction to consider their appeal. We find that the existence of other untried counts against the appellants renders the district court's judgment on the conspiracy count non-final. Accordingly, we dismiss this matter without prejudice to any subsequent appeal upon entry of final judgment by the district court.

I. BACKGROUND

Appellants Leichter, Prigmore, and Cvinar (and other defendants) were indicted on over 390 counts stemming from Bard's manufacture and sale of non-FDA-approved heart catheters. ¹ Count One of the indictment charged appellants with conspiring to defraud the government in violation of 18 U.S.C. § 371 through an allegedly fraudulent scheme involving the sale of adulterated heart catheters and the concealment of material facts from the FDA. The district court sua sponte decided to proceed to trial against appellants only as to Count One, deferring further proceedings on the remaining counts. After two months of trial, a jury returned a verdict finding appellants guilty of the conspiracy count. The district court sentenced each appellant to 18 months of imprisonment and two years of supervised release, and imposed a special assessment of $50 for each conviction. The execution of the sentences have been stayed pending the outcome of appeal, and none of the appellants is now in prison. Following appellants' conviction on the first count, the government dismissed all but 38 of the other counts against them. On March 13, 1997, the district court entered judgment on the Count One conviction. Shortly thereafter, appellants filed timely notices of appeal to preserve their right of appeal.

On April 4, 1997, appellants filed a motion requesting that this court remand the matter to the district court, alleging that no final judgment had entered inasmuch as numerous other untried counts remained pending. On May 6, 1997, this court dismissed the matter without prejudice to appeal upon the entry of final judgment. In response, the government filed a motion to reconsider, arguing that, when the district court, on its own initiative, proceeded to trial on only the conspiracy count, the court, in effect, severed that count from the other charges, and thus created a separately appealable case. On September 18, 1997, this court withdrew its May 6 dismissal order, and allowed the parties to brief the merits of their case on appeal. However, the jurisdictional issue remains a threshold question, which we now address below.

II. DISCUSSION

The jurisdiction of this court is limited to "all final decisions of the district courts of the United States...." 28 U.S.C. § 1291 (emphasis added). "This requirement of finality is particularly strict in criminal proceedings because the disruption and delay caused by interlocutory appeals 'are especially inimical to the effective and fair administration of the criminal law.' " United States v. Sorren, 605 F.2d 1211, 1213 (1st Cir.1979) (quoting Abney v. United States, 431 U.S. 651, 657, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)). "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, 82 L.Ed. 204 (1937).

However, "a criminal judgment involving multiple counts is not final and appealable unless the record discloses the precise disposition (e.g., the sentence) for each count." United States v. Luciano-Mosquera, 63 F.3d 1142, 1148 n. 2 (1st Cir.1995), cert. denied, 517 U.S. 1234, 116 S.Ct. 1879, 135 L.Ed.2d 174 (1996); see also United States v. Wilson, 440 F.2d 1103, 1104 (5th Cir.1971) ("when a multi-count indictment and verdict are involved, it is essential for post-conviction review that the record disclose the precise sentence for each count"); 15B Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3918.7, at 536-37 (2d ed. 1992) ("if sentence is imposed on some counts, but the court expressly defers imposition of sentence on other counts, there is no final judgment"). Thus, we agree with appellants that we currently lack appellate jurisdiction due to the presence of 38 untried counts, which precludes the issuance of a final judgment against them. Ultimately, we prefer to view a final judgment as one disposing of all counts or claims with respect to all parties.

The government contends that, when the district court judge decided to conduct a separate trial on Count One, he severed that count from the remaining counts pursuant to Fed.R.Crim.P. 14. ² Thus, according to the government, the district court created a separately appealable criminal case. By urging us to hear this appeal now, the government, at bottom, is attempting to preserve its remaining counts in case of reversal on the first count without being forced to try those counts now.

The power to order separate trials "rests within the broad discretion of the District Court as an aspect of its inherent right and duty to manage its own calendar." United States v. Gay, 567 F.2d 916, 919 (9th Cir.1978). The record reflects that the district court, on its own initiative, ordered a separate trial on Count One for case management reasons. ³ As the hearing transcript shows, the district court judge separated Count One from the other counts because he assumed, albeit incorrectly, that, whatever the outcome of the trial on that count, the government would dismiss the remaining counts. We believe that the district court did not abuse its discretion in following such a course under its case management authority, nor does the government claim abuse.

The government's argument based on Rule 14 is doubly mistaken. First, the district judge did not rely upon Rule 14, see infra, but on its separate case management authority. Nor is there any reason to think that Rule 14 was applicable in this case: there was no claim by either side, nor any finding by the judge, that either the defendant or government would be "prejudiced" by joinder. Not every trial management decision is designed to avoid prejudice.

But there is a second and more fundamental reason why Rule 14 is irrelevant. Rule 14 refers to "severance" but also to "whatever relief justice requires." While the separation of defendants, or less often counts, into two separate cases is a form of relief commonly granted under Rule 14, nothing in the rule says or means that every action taken under Rule 14 to remedy prejudice necessarily involves the separation of a case into two separate cases. Such a separation is merely one form of permissible relief and that relief was not granted in this case. ⁴

The truth is that neither Rule 14 or any other Federal Rule of Criminal Procedure directly addresses the question of when a criminal matter comprises a separate appealable unit. When making such determinations, the courts have relied essentially on policy and precedent. The prevailing practice has been to treat "the case" as the basic unit for an appeal. The question of when a case has been separated into "two cases," each separately appealable, depends upon the circumstances.

In our view, two objectives are important: first, preserving the district judge's flexibility to manage litigation, reserving a trial court's authority (subject always to appropriate review) to sever a single case into two cases or to take lesser steps such as retaining a single case but ordering two trials. The other objective, in our view, is to provide the clearest possible notice to litigants (and to the appellate court) as to whether there has been a severance into two cases, notice that is especially important because of the time limits that require an appeal to be taken within a fixed period of time.

With this latter concern in mind, we think that where a matter originated as one case, normally it should be treated as two cases only where the district court has made clear its intention to sever the case into two cases. In the present instance, there was no formal severance; there was no indication that separate dockets were established for the separately tried counts; and the trial judge indicated his doubt as to whether the judgment on the first count alone could be appealed. Under these circumstances--unless sentence has been executed--we conclude that no appeal can be taken on the first count until all counts have been tried and sentenced. ⁵

There is nothing in this view that is inconsistent with United States v....