U.S. v. Lewis

• Decision Date: 25 May 2004
• Docket Number: No. 03-10181.,03-10181.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Gene LEWIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

368 F.3d 1102

UNITED STATES of America, Plaintiff-Appellee, v. David Gene LEWIS, Defendant-Appellant.

No. 03-10181.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 13, 2004.

Filed May 25, 2004.

Donald P. Riordan, Riordan & Horgan, San Francisco, CA, for the appellant.

Erika R. Frick, Assistant United States Attorney, San Francisco, CA, for the appellee.

Appeal from the United States District Court for the Northern District of California; Maxine M. Chesney, District Judge, Presiding. D.C. No. CR-99-00186-1-MMC.

Before WALLACE, McKEOWN, and CALLAHAN, Circuit Judges.

CALLAHAN, Circuit Judge.

David Gene Lewis, a former California correctional officer, appeals the district court's denial of his motion to dismiss the indictment. Lewis raises two issues. First, can Lewis seek interlocutory review of the district court's denial of his "fair warning" defense? Second, did the prosecution's alleged Brady¹ violations raise double jeopardy concerns? We answer both questions in the negative.

Background

This matter springs from an incident on June 20, 1994, when Lewis, then a correctional officer at Pelican Bay State Prison, shot and seriously wounded an inmate, Harry Long, during a prison-yard disturbance. Five years after the shooting, a federal grand jury charged Lewis with violating 18 U.S.C. § 242, Deprivation of Rights Under Color of Law, and 18 U.S.C. § 924(c), Use of a Firearm in Relation to a Crime of Violence. One year after the indictment, the Government tried Lewis, and a jury convicted him of both counts.

In January 2002, in an unpublished disposition, we reversed Lewis's convictions and remanded for a new trial. In reversing, we held that the district court had committed error by excluding from trial a Shooting Review Board Report. At a status hearing after remand, the Government revealed that it had just learned about potentially exculpatory material that it had not previously shown to Lewis. The two allegedly withheld pieces of information were (1) statements by Long that his fellow combatant in the prison yard had a weapon and (2) a statement by a fellow prison guard that "it would be very difficult to see what was really happening" from the tower where Lewis shot Long.

Lewis moved to dismiss the prosecution against him on fair warning and double jeopardy grounds. The district court denied the motion, and Lewis appealed. The district court subsequently vacated the trial date pending appeal.

Discussion

A. Lewis's Fair Warning Claim

The fair warning requirement ensures that "no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954). Lewis contends that this requirement shields him from criminal prosecution for the shooting at Pelican Bay State Prison. While the fair warning requirement may, or may not, shield Lewis from ultimate criminal liability — an issue on which we take no position — this issue is not subject to interlocutory review.

Under 28 U.S.C. § 1291, criminal cases generally are not subject to appellate review "until after conviction and sentence." See Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984); United States v. Pace, 201 F.3d 1116, 1118 (9th Cir.2000). Courts, however, have carved out a small class of cases from this jurisdictional bar under the "collateral order doctrine." Pace, 201 F.3d at 1119. To fall within this exception, the appealed order must "1) `conclusively determine the disputed question,' 2) `resolve an important issue completely separate from the merits of the action,' and 3)'be effectively unreviewable on appeal from a final judgment.'" United States v. Bird, 342 F.3d 1045, 1046 (9th Cir.2003) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)).

Nevertheless, the Supreme Court has warned against broadening the scope of interlocutory review in criminal cases. Piecemeal appeals encourage delay, which "is fatal to the vindication of the criminal law." United States v. MacDonald, 435 U.S. 850, 853-54, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978) (citing Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 84 L.Ed. 783 (1940)). Society has an "interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused." Id. at 862, 98 S.Ct. 1547 (quoting Barker v. Wingo, 407 U.S. 514, 519, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). "[D]elay may prejudice the prosecution's ability to prove its case, increase the cost to society of maintaining those defendants subject to pre-trial detention, and prolong the period during which defendants released on bail may commit other crimes." Id. Accordingly, we interpret the collateral order doctrine with the "utmost strictness" in criminal cases. California v. Mesa, 813 F.2d 960, 962 (9th Cir.1987) (citing Flanagan, 465 U.S. at 265, 104 S.Ct. 1051).

A major characteristic of an appealable claim under the collateral order doctrine is that "unless it can be reviewed before [the proceedings terminate], it can never be reviewed at all." Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (quoting Stack v. Boyle, 342 U.S. 1, 12, 72 S.Ct. 1, 96 L.Ed. 3 (1951)). Were this a civil case, we would have interlocutory jurisdiction over a court's pretrial denial of a qualified immunity claim. See id.; Cunningham v. City of Wenatchee, 345 F.3d 802, 808-09 (9th Cir.2003). This is true, in part, because an official's qualified immunity is "an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Mitchell, 472 U.S. at 526, 105 S.Ct. 2806 (emphasis in original).

Lewis argues that the fair warning requirement similarly shields him from criminal prosecution, rather than merely providing a defense to conviction. In doing so, Lewis points to the Supreme Court's statement that fair warning and qualified immunity serve similar objectives: "to give officials (and, ultimately, governments) the same protection from civil liability and its consequences that individuals have traditionally possessed in the face of vague criminal statutes." United States v. Lanier, 520 U.S. 259, 270-71, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). Lewis, however, reads Lanier too broadly.

While noting the two doctrines' similar purpose, the Court in Lanier did not hold that the fair warning requirement insulates a criminal defendant from standing trial, as qualified immunity does for a civil defendant. Rather, the Court held that qualified immunity provides officials "the same protection from civil liability that individuals have traditionally possessed in the face of vague criminal statutes."² Id. at 270-71, 117 S.Ct. 1219 (emphasis added). Without express authority, we will not expand the scope of immunity to criminal prosecution, "regardless of whether in some circumstance [that immunity] may provide a bar to conviction." Pace, 201 F.3d at 1119-20. Lewis cites no case, nor can we find any, that has extended fair warning to include a protection from standing trial.³

Not only do we lack authority to expand the fair warning requirement's scope, the rules of criminal procedure give us good reason not to do so. A district court can only grant a dismissal in the criminal context if the issue is "`entirely segregable' from the evidence to be presented at trial." United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir.1986) (citations omitted). Otherwise, "the motion falls within the province of the ultimate finder of fact and must be deferred [to the jury]." Id.

Here, Lewis's fair warning claim involves questions inextricably intertwined with the question of his alleged guilt. The government accuses Lewis of willfully depriving Long of his Eighth Amendment right against cruel and unusual punishment. Specifically, the government charged Lewis, in part, with violating 18 U.S.C. § 242. That code section makes it a criminal act to act "(1) `willfully' and (2) under color of [state] law (3) to deprive a person of rights protected by the Constitution or laws of the United States." Lanier, 520 U.S. at 264, 117 S.Ct. 1219 (citing Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945)). Lewis counters that § 242 failed to provide fair warning that his actions violated Long's Eighth Amendment rights. Lewis bases this defense on the same evidence that the Government will introduce at trial to support the underlying charge. Consequently, Lewis's defense is not "entirely segregable" from the evidence the Government will present at trial.

We recognize that, in certain situations, courts may dispose of factual questions underlying immunity defenses before subjecting the defendant to a criminal trial. For instance, courts may decide the facts supporting a double jeopardy claim or the scope of an immunity agreement before allowing the jury to deliberate on guilt. See, e.g., United States v. Anderson, 79 F.3d 1522, 1525-31 (9th Cir.1996) (reviewing a district court's denial of a pre-trial motion for a Kastigar⁴ hearing); United States v. Mendoza, 78 F.3d 460, 464-65 (9th Cir.1996) (reviewing whether the government breached an immunity agreement); United States v. Gutierrez-Zamarano, 23 F.3d 235, 237 (9th Cir.1994) (reviewing a defendant's double jeopardy claim). None of these claims, however, dealt with the underlying merits. Here, Lewis's claim goes directly to the underlying merits; the evidence he seeks to introduce regarding his fair warning defense goes to the heart of his criminal liability.

The fair warning doctrine may ultimately protect Lewis from criminal liability. That, however, is an issue we can review after judgment, if necessary. We therefore dismiss the interlocutory appeal of Lewis's fair warning claim.

B. Lewis's...