U.S. v. Pi

• Decision Date: 12 April 1999
• Docket Number: No. 98-1119,98-1119
• Parties: -1805, 99-1 USTC P 50,431 UNITED STATES of America, Plaintiff-Appellee, v. Peter PI; Cor-Bon Custom Bullet Company, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 745

174 F.3d 745

83 A.F.T.R.2d 99-1805, 99-1 USTC P 50,431

UNITED STATES of America, Plaintiff-Appellee, v. Peter PI; Cor-Bon Custom Bullet Company, Defendants-Appellants.

No. 98-1119.

United States Court of Appeals, Sixth Circuit.

Argued March 15, 1999.

Decided April 12, 1999.

Stephen J. Dunn (argued and briefed), Troy, Michigan, for Defendants-Appellants.

Krishna S. Dighe (argued and briefed), Office of U.S. Attorney, Detroit, Michigan, for Plaintiff-Appellee.

Before: JONES, CONTIE, and MOORE, Circuit Judges.

OPINION

CONTIE, Circuit Judge.

Defendants-appellants, Peter Pi and Cor-Bon Custom Bullet Company, appeal the district court's refusal to dismiss the indictment in this case. For the following reasons, we affirm the district court.

I.

Since 1990, defendant Peter Pi, through his company and co-defendant Cor-Bon Custom Bullet Company ("Cor-Bon"), has been in the business of manufacturing ammunition for firearms. In 1995, an employee of Cor-Bon brought to the attention of the Bureau of Alcohol, Tobacco and Firearms ("ATF") the fact that Cor-Bon, under the direction of Mr. Pi, had been significantly under-reporting its sales of ammunition in order to reduce its excise tax liability. Subsequently, the ATF investigated and examined Cor-Bon's tax and business records and concluded that Cor-Bon had grossly understated its sales to its distributors, resulting in hundreds of thousands of dollars of reduced tax liability.

On June 26, 1997, a federal grand jury in Detroit indicted defendants Pi and Cor-Bon, charging them with eighteen counts of tax evasion. In the original indictment, the statutory section defendants were alleged to have violated was 26 U.S.C. § 7202. On July 18, 1997, defendants filed a motion to dismiss the indictment, arguing that section 7202, which charges failure to collect, account for and pay excise taxes, did not apply to them because they had no obligation to collect taxes from a third party. Defendants also moved for the dismissal of counts one through twelve of the indictment as time-barred. On August 26, 1997, the United States responded to the motion and agreed that section 7202 did not describe the illegal conduct defendants had engaged in. The United States agreed that the first indictment should be dismissed and informed defendants of its intent to seek a superseding indictment.

On the next day, August 27, 1997, the grand jury returned a first superseding indictment, charging defendants with violating 26 U.S.C. § 7201, evading the payment of taxes, in sixteen counts, involving sixteen quarters from the second quarter of 1991 through the first quarter of 1995. On August 29, 1997, the district court granted the motion to dismiss the original indictment based on the government's response.

On September 30, 1997, defendants moved to dismiss the first superseding indictment on the grounds that the dismissal of the original indictment constituted res judicata which barred the filing of the superseding indictment. They also argued that count one was barred by the statute of limitations. The government filed its opposition to this motion to which defendants replied. On January 7, 1998, the district court denied defendants' motion to dismiss the superseding indictment, rejecting their argument that the indictment was barred by the doctrine of res judicata, because the court found the original indictment had been dismissed merely for citing the wrong statute, and the doctrine of res judicata did not apply. Defendants filed a notice of appeal from the order of the district court denying their motion to dismiss the superseding indictment as being barred by res judicata and the statute of limitations. On February 6, 1998, the defendants were directed to show cause why their appeal should not be dismissed for lack of appellate jurisdiction because the denial of a motion to dismiss an indictment is not a final order and generally is not appealable. See United States v. Hollywood Motor Car Co., 458 U.S. 263, 264, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982) (per curiam). The defendants responded to the show cause order, arguing that the denial of their motion to dismiss the indictment on res judicata grounds is an appealable collateral order according to the Supreme Court opinion in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).

On March 16, 1998, a motions panel of this court issued an order allowing the appeal to proceed at the time, because the court was uncertain whether Abney applied in the present case, but directed the parties to address the issue of appellate jurisdiction in their briefs and referred the case to the panel assigned to hear it on the merits.

II.

We therefore must first decide whether this court has appellate jurisdiction to hear this appeal. It is axiomatic that this court's jurisdiction is defined by statute. Id. at 656. The statute applicable here is 28 U.S.C. § 1291, which grants this court "jurisdiction of appeals from all final decisions of the district courts of the United States...." A pretrial order denying a defendant's motion to dismiss an indictment is not normally an appealable "final decision" under this section. See United States v. MacDonald, 435 U.S. 850, 853-54, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978); Hoffa v. Gray, 323 F.2d 178, 179 (6th Cir.), cert. denied, 375 U.S. 907, 84 S.Ct. 199, 11 L.Ed.2d 147 (1963).

The Supreme Court has held, however, that § 1291 does not limit appellate jurisdiction to review of "those final judgments which terminate an action" and has allowed interlocutory appeals in certain instances under the collateral order doctrine. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In Cohen, the Court stated that in order to come within the "small class" of decisions excepted from the final-judgment rule, the order from which a party appeals 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. Id.See also Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978).

A defendant's right under the Fifth Amendment not to be twice put in jeopardy for the same offense would be lost irreparably if the right could be raised only following conviction at a second trial. ¹ Therefore in Abney, 431 U.S. at 658-59, the Supreme Court held that denial of a pretrial motion to dismiss an indictment on double jeopardy grounds is immediately reviewable in the court of appeals as a "collateral order" under Cohen. In Abney, the Supreme Court permitted a criminal defendant to appeal the denial of his motion to dismiss the indictment on the grounds that it violated his right against double jeopardy after there had already been a trial and final judgment under a prior indictment. The Court reasoned that this right would be lost if the defendant were forced to stand trial a second time. Id. at 661.

In a footnote in Abney, the Supreme Court addressed the issue of the possibility of a defendant's raising frivolous double jeopardy claims in order to circumvent the final judgment rule of 28 U.S.C. § 1291, stating:

Admittedly, our holding may encourage some defendants to engage in dilatory [interlocutory] appeals.... However we believe that such problems of delay can be obviated by rules or policies giving such appeals expedited treatment. It is well within the supervisory powers of the courts of appeals to establish summary procedures and calendars to weed out frivolous claims of former jeopardy.

431 U.S. at 662 n. 8. See also Richardson v. United States, 468 U.S. 317, 322, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984). Thus, the lower courts may develop expedited procedures to weed out frivolous double jeopardy claims, and several circuits have done so. See United States v. Ivory, 29 F.3d 1307, 1310 (8th Cir.1994); United States v. LaMere, 951 F.2d 1106, 1108 (9th Cir.1991); United States v. Dunbar, 611 F.2d 985, 987-89 (5th Cir.), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980); United States v. Inmon, 568 F.2d 326, 332 (3rd Cir.1977), cert. denied, 444 U.S. 859, 100 S.Ct. 121, 62 L.Ed.2d 79 (1979).

In United States v. Lanci, 669 F.2d 391, 394 (6th Cir.), cert. denied, 457 U.S. 1134, 102 S.Ct. 2960, 73 L.Ed.2d 1350 (1982), defendants had taken an interlocutory appeal to this court from the district court's denial of their motions to dismiss the indictment on double jeopardy grounds. In an unpublished order, this court had found that the double jeopardy claim had no merit. During the pendency of the interlocutory appeal, the district court proceeded to trial. In Lanci, this court determined that the district court had jurisdiction to proceed, having determined that the interlocutory appeal lacked any "colorable foundation." Id. In the present case, the district court did not consider the issue of jurisdiction, and the motions panel declined to dismiss the appeal summarily. Given the procedural posture of this case, we believe we must exercise jurisdiction to the extent necessary to determine whether or not defendants' double jeopardy claim is colorable.

In United States v. MacDonald, 435 U.S. at 862, the Supreme Court indicated that an appealable double jeopardy claim under the collateral order doctrine requires at least a colorable showing that the defendant once before has been in jeopardy of federal conviction on the same or a related offense. In the present case, defendants cannot bring a viable claim of former jeopardy, because, unlike Abney, there has been no prior trial. Defendants have not been put to trial on the charges in either the original indictment, which was dismissed because it contained the wrong statute, or under the first superseding indictment, and there has never been a final judgment. Therefore, the concerns of the double jeopardy clause simply do not arise in the present case....