U.S. v. Mavrokordatos, s. 90-1217
| Decision Date | 13 May 1991 |
| Docket Number | Nos. 90-1217,90-1250,s. 90-1217 |
| Citation | 933 F.2d 843 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Peter Olympus MAVROKORDATOS, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John M. Haried, Asst. U.S. Atty. (Michael J. Norton, U.S. Atty., with him on the brief), Denver, Colo., for plaintiff-appellant.
P. Arthur Tague and Robert S. Southern of P. Arthur Tague P.C., Denver, Colo., on the brief, for defendant-appellee.
Before MOORE, SETH and BRORBY, Circuit Judges.
The government appeals the trial court's pretrial order excluding the testimony of six government witnesses because of violations of the Jencks Act, 18 U.S.C. Sec. 3500, and Fed.R.Crim.P. 16 in relation to the discovery deadline.
On April 18, 1990, Peter Mavrokordatos applied for a passport at the post office in Aurora, Colorado. The postal clerk, Bruce Smith, suspected fraud; therefore, he filled out a postal checklist stating the reasons for his suspicions and forwarded it to Steven Mullen of the United States Passport Office in Seattle, Washington. Mullen, in turn, contacted Special Agent Scott Gallo of the State Department in Denver, Colorado, who ultimately conducted the investigation.
Mavrokordatos was arrested on May 18, 1990. A preliminary hearing was held on May 24, 1990 where Gallo testified in detail about the case. Defense counsel was permitted to cross-examine Gallo but denied the opportunity to inspect the government files. On June 12, 1990, Mavrokordatos was indicted. He was charged with one count of making false statements in a passport application and two counts of using false identification documents to secure the issuance of the passport.
A discovery and bond hearing was held on June 28, 1990. At that hearing, the magistrate ordered and the government agreed to a discovery deadline and Jencks disclosure date of 15 days before trial. Trial was scheduled to commence on July 30 1990. The issues on appeal center on this deadline of July 15.
On July 11, 1990, Robert Theide, a handwriting expert, completed his report. The government notified defense counsel that it was available. After defense counsel failed to pick up the report, the government made a second call and it was picked up on July 13, 1990, thus before the deadline. On July 20, 1990, defense counsel informed the government that he was unsatisfied with the handwriting and fingerprint examinations by Theide and requested that the tests be repeated. The tests were repeated by Vernon McCloud and Claude Eaton. Their reports were received by the government and delivered to defense counsel on July 26, 1990.
Special Agent Gallo, who conducted the investigation, did not finish his report until July 24, 1990, thus after the deadline. Defense counsel was informed of the existence of the report. When he failed to pick up the report, the government had it delivered to his office.
On July 25, 1990, Mullen of the passport office, upon his own initiative, wrote a two-page outline concerning his involvement in the case and sent it by facsimile to the United States Attorney's Office at 5:00 p.m. The government delivered a copy to defense counsel the following morning.
Mavrokordatos filed a motion to compel six days before the trial date of July 30 asserting that he had not received Gallo's report or the handwriting and fingerprint experts' report. Mavrokordatos subsequently filed a motion to continue.
On July 30, 1990, the morning of the trial, the trial court heard testimony and took evidence on the two motions raised by Mavrokordatos. The trial court ordered that six government witnesses would not be permitted to testify because their statements or reports were produced to defense counsel after the discovery deadline. The trial court thus excluded Gallo, Mullen, and Smith's testimony based upon violations of 18 U.S.C. Sec. 3500 and Fed.R.Crim.P. 16(a)(1)(C). Theide, Eaton, and McCloud's testimony was excluded for violations of Fed.R.Crim.P. 16(a)(1)(D).
Upon the trial court's suppression of the government's six witnesses, Mavrokordatos withdrew his motion for a continuance. The government moved for a stay of the proceedings to seek appellate review pursuant to 18 U.S.C. Sec. 3731. The government informed the trial court that the appeal was not to be taken for purposes of delay, but that without the six witnesses the government was not certain that it could put forth its case. The government requested two hours to file a notice of appeal. The trial court denied its motion stating that the discovery sanctions were not appealable under 18 U.S.C. Sec. 3731.
After the noon recess, the government presented a written motion for stay and informed the trial court that its office was preparing a notice of appeal and that an emergency motion for stay pending appeal was being filed with this court. The trial court denied the stay. Again, the government informed the trial court that it could not proceed without the excluded testimony of the six witnesses. The trial court informed the government that it would not dismiss the case and began jury selection.
The notice of appeal was filed with the district court at 1:51 p.m. and the notice of appeal and emergency motion for stay pending appeal were filed with this court at the same time.
Before the jury was sworn, the government requested a five-minute recess to see if an order had been issued on the emergency motion for stay pending appeal. The trial court denied the government's request. The government moved for dismissal and Mavrokordatos objected. The trial court did not rule on the government's motion to dismiss and swore the jury in at approximately 4:10 p.m. Thereafter, the trial court granted the government's renewed motion to dismiss. The government filed a subsequent notice of appeal with this court and a motion to consolidate the two appeals.
The government contends that a timely notice of appeal was filed pursuant to 18 U.S.C. Sec. 3731; therefore, the trial court had been divested of jurisdiction to proceed with the trial before the jury was sworn.
It is apparent that the filing of a timely notice of appeal from an appealable order divests the trial court of jurisdiction and confers jurisdiction on the court of appeals. Thus the issue is whether there was an appealable order. Appeals under 18 U.S.C. Sec. 3731 are not the "usual" appeals. The statute was intended to make appeals possible under the stated circumstances. In our view, the appeal here filed by the government directed to the suppression or exclusion of evidence was within Sec. 3731, and did not constitute a serious disruption of the proceeding. The defendant had asked for a continuance the Friday before the trial and the prosecution had agreed to it. This and other motions for a trial continuance were not ruled on. We must conclude, as mentioned, that the suppression of evidence ordered by the trial court was appealable under 18 U.S.C. Sec. 3731. The statements of the prosecutor were sufficient to meet the non-delay and substantial proof requirements. The trial court was made aware of the fact that a notice of appeal was being prepared and would probably be filed before the jury was impaneled.
In ruling that discovery sanctions were not an appealable order, the trial court stated that 18 U.S.C. Sec. 3731 only applied to "suppression hearings, Fourth Amendment violations, things of that nature,...." Tr. 7-30-90, Motions Hearing, pp. 121-122. The government contends that the trial court's order excluding the witnesses based upon discovery violations is an appealable order. 18 U.S.C. Sec. 3731 provides in relevant part:
"An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence ..., not made after the defendant has been put in jeopardy ..., if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding."
Although the Tenth Circuit has not specifically stated that discovery sanctions like these here concerned are appealable, in United States v. Wicker, 848 F.2d 1059 (10th Cir.), we reviewed an interlocutory appeal by the government contesting the exclusion of testimonial and documentary evidence based upon discovery sanctions. Other circuits have concluded that some discovery sanctions are appealable pursuant to 18 U.S.C. Sec. 3731. See United States v. Mandel, 914 F.2d 1215 (9th Cir.); United States v. Presser, 844 F.2d 1275 (6th Cir.); United States v. Euceda-Hernandez, 768 F.2d 1307 (11th Cir.).
Mavrokordatos contends that the government's appeal is barred by...
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