U.S. v. Sorren

• Citation: 605 F.2d 1211
• Decision Date: 04 September 1979
• Docket Number: No. 79-8089,79-8089
• Parties: UNITED STATES of America, Appellee, v. William C. SORREN, Defendant, Appellant. Misc.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1211

605 F.2d 1211

UNITED STATES of America, Appellee, v. William C. SORREN, Defendant, Appellant.

Misc. No. 79-8089.

United States Court of Appeals First Circuit.

Submitted Aug. 29, 1979.

Decided Sept. 4, 1979.

Harvey B. Nachman and Carlos V. Garcia Gutierrez, Santurce, P. R., on memorandum for appellant.

Julio Morales Sanchez, U. S. Atty., and Justo Arenas, Fernandez, Asst. U. S. Atty., San Juan, P. R., on memorandum for appellee.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge.

COFFIN, Chief Judge.

On May 23, 1979, appellant, William Sorren, was indicted in the United States District Court for the District of Puerto Rico on charges of conspiracy to import cocaine into customs territory of the United States in violation of 21 U.S.C. §§ 952, 963, and 843(b). Prior to commencement of his trial, Sorren filed, inter alia, motions requesting: (1) that he be granted discovery from the prosecution of information pertaining to United States involvement in his arrest and confinement in Panama, his expulsion therefrom, and his transportation to Puerto Rico; (2) that the district court hold an evidentiary hearing into the circumstances surrounding these events; and (3) that the district court "divest itself of jurisdiction" over his person. The district judge denied all three motions on July 31, 1979, and Sorren has taken appeal from this order. ¹

Except for the extent of the United States' participation in Sorren's arrest and confinement in Panama and his transportation to Puerto Rico, the parties do not significantly differ over the events leading to Sorren's arrest in Puerto Rico by officers of the Drug Enforcement Administration (DEA). Sorren, along with two others, was taken into custody on May 8, 1979, in Panama City, Republic of Panama. He was subsequently detained first in the headquarters of the G-2 Division of the Panama National Guard, ² and then in the Panama Penitentiary. After being expelled from Panama by the Panamanian government, Sorren was flown to Puerto Rico via Caracas Venezuela, accompanied by agents of the DEA. Sorren was met in Caracas by a DEA agent and officers of the Venezuelan Politica Tactica Judicial (PTJ) and was held in the PTJ Detention Center while awaiting his flight to Puerto Rico. Upon Sorren's arrival in Puerto Rico, agents of the DEA placed him under arrest.

Sorren alleges that his arrest in Panama was in fact an illegal abduction and that his treatment and the conditions of his confinement in Panama and Venezuela constituted physical and psychological torture. This mistreatment, he asserts, was "engineered, directed, paid for and provoked" by the DEA. Sorren argues that by this involvement the United States has deprived him of his rights protected under the Fourth and Fifth Amendments and therefore that the district court was required to divest itself of jurisdiction. Alternatively, he argues that the district court should have granted him discovery to more fully develop the factual basis for his claim.

1. Appealability

The right of appeal in criminal cases "is purely a creature of statute", Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977), and the applicable statute in this case, 28 U.S.C. § 1291, limits the appellate jurisdiction of this court to appeals taken from "final decisions" of the district courts. 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." Abney, supra, 431 U.S. at 657, 97 S.Ct. at 2039 (quoting DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962)); See Cobbledick v. United States, 309 U.S. 323, 324-26, 60 S.Ct. 540, 84 L.Ed. 783 (1940). The district court's denial of Sorren's motions are, in one sense, not final decisions since they do not terminate or otherwise dispose of the instant litigation. See Atlantic Fishermen's Union v. United States, 197 F.2d 519 (1st Cir. 1952) (denial of motion to dismiss criminal prosecution for lack of subject matter jurisdiction is interlocutory order); Sheehan v. Doyle, 513 F.2d 895, 898 (1st Cir. 1975) (discovery order is not "final" decision); Cf. DiBella v. United States, supra (order denying motion to suppress evidence is not "final" decision).

Appellate review under section 1291 has not been limited to decisions that terminate the pending action, however. Under the "collateral order" exception to the finality rule, announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), certain orders may be appealed despite their interlocutory nature. Four requisites of appealability under this exception can be gleaned from the Cohen opinion and the cases applying it. The order must involve: (1) an issue essentially unrelated to the merits of the main dispute, capable of review without disrupting the main trial; (2) a complete resolution of the issue, not one that is "unfinished" or "inconclusive"; (3) a right incapable of vindication on appeal from final judgment; and (4) an important and unsettled question of controlling law, not merely a question of the proper exercise of the trial court's discretion. The Supreme Court has, on three occasions, found interlocutory appeals in criminal cases to be within the collateral order exception. Helstoski v. Meanor, --- U.S. ----, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979) (speech or debate clause immunity); Abney v. United States,supra (double jeopardy); Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951) (denial of bail). But see United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978) (denial of motion to dismiss on speedy trial grounds not appealable). Sorren asserts that his appeal is indistinguishable from those approved in Abney and Stack. Our reading of the analysis employed by the Court in Helstoski, Abney, and MacDonald leads us to examine carefully the nature of the right Sorren seeks to protect in this appeal.

Although we can find no cases that directly address an interlocutory appeal from an unsuccessful challenge to personal jurisdiction in a criminal case, decisions denying appeals from other jurisdictional challenges suggest that the individual litigant's interest in the limitations on the courts' jurisdiction is adequately served by postjudgment appeal. ³ See, e. g., In re Durensky, 519 F.2d 1024 (5th Cir. 1975) (subject matter jurisdiction in civil suit); Atlantic Fishermen's Union v. United States, supra (subject matter jurisdiction in criminal case); Hydraulic Press Mfg. Co. v. Moore, 185 F.2d 800 (8th Cir. 1950) (personal jurisdiction in civil suit). The language of opinions discussing jurisdictional challenges belies the argument that Sorren faces an irreparable loss of a right comparable to those held appealable in Abney and Helstoski. In the latter cases, the Court relied on the defendants' rights to be protected "against being twice put to Trial for the same offense", Abney, supra, 431 U.S. at 661, 97 S.Ct. at 2041, and "not only from the consequences of litigation's results but also from the burden of defending themselves", Helstoski, supra, --- U.S. at ----, 99 S.Ct. at 2449 (quoting Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967)). An interlocutory denial of a motion to dismiss a civil case for lack of jurisdiction, on the other hand, "is perhaps unique in its incapacity permanently to affect the rights of the moving party." ⁴ In re Durensky, supra, 519 F.2d at 1029. Furthermore, courts have not found that the "inconvenience" to a party of awaiting review of a jurisdictional question justifies permitting immediate review. See Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 30-31, 63 S.Ct. 938, 87 L.Ed. 1185 (1943); Hydraulic Press Mfg. Co. v. Moore, supra, 185 F.2d at 803. Nor does the fact that this case involves personal jurisdiction over a criminal defendant necessarily elevate this inconvenience to a basis for immediate appeal. Cf. Cobbledick v. United States, supra, 309 U.S. at 325, 60 S.Ct. at 541 ("Bearing the discomfiture and cost of a prosecution for crime . . . is one of the painful obligations of citizenship.").

We conclude that, unlike the interests protected by the double jeopardy or speech or debate provisions of the Constitution, the essence of a litigant's jurisdictional "right" is that the court not impose a Judgment against him unless it has both personal and subject matter jurisdiction. See American Fire & Casualty Co. v. Finn, 341 U.S. 6, 18, 71 S.Ct. 534, 95 L.Ed. 702 (1950). The district court's denial of Sorren's motion to divest itself of jurisdiction thus fails to satisfy the Cohen requirement of a right incapable of vindication on appeal.

We reject as well any suggestion that broader policies implicated by the peculiar nature of Sorren's substantive claim mandate a different result. Were Sorren's "abduction" at least arguably in violation of a treaty with a foreign nation, foreign policy concerns might militate in favor of immediate appeal. But Sorren alleges no such violation. It might also be argued that the policy of preserving the integrity of the judicial system is ill-served by allowing the case to proceed against a defendant who may have been abducted and mistreated by United States officials. But the courts have been reluctant to recognize interests other than those of the appellant in determining the practicability of postjudgment review to protect those rights forming the basis of an appeal. E. g., United States v. Washington, 573 F.2d 1121 (9th Cir. 1978) (denial of motion to disqualify judge not appealable); Baker v. United States Steel Corp., 492 F.2d 1074 (2d Cir. 1974); See Comment, 45 U.Chi.L.Rev. 450, 460 (1978); Cf. Stone v. Powell, 428 U.S. 465, 485, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (taking a narrowly circumscribed view of the role of "judicial integrity"...