U.S. v. Szado

• Decision Date: 30 August 1990
• Docket Number: No. 89-30174,89-30174
• Citation: 912 F.2d 390
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jan SZADO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 390

912 F.2d 390

UNITED STATES of America, Plaintiff-Appellee, v. Jan SZADO, Defendant-Appellant.

No. 89-30174.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 12, 1990.

Decided Aug. 30, 1990.

Joseph Schlesinger, Asst. Federal Public Defender, Seattle, Wash., for defendant-appellant.

Harry J. McCarthy, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before WALLACE, HALL and WIGGINS, Circuit Judges.

WALLACE, Circuit Judge:

After a non-jury trial before a United States magistrate, Szado was convicted of operating a Canadian vessel unlawfully engaged in fishing within the exclusive economic zone of the United States, in violation of 16 U.S.C. Sec. 1857(2)(B), and of interfering with the United States Coast Guard, in violation of 16 U.S.C. Sec. 1857(1)(D) and (E). Szado subsequently appealed to the district court, contending that (1) he was denied his constitutional right to trial by jury; (2) the government failed to present sufficient evidence of a violation of 16 U.S.C. Sec. 1857(1)(D) and (E); and (3) the magistrate abused his discretion in sentencing him to a term of imprisonment. The district court entered an order reversing Szado's conviction, concluding that Szado had been denied his right to a jury trial. The district court declined to address Szado's other two contentions of error. Szado then filed a motion for reconsideration, requesting the district court to rule on the sufficiency of the evidence issue. He contended that the district court's failure to decide whether the evidence at the first trial was sufficient compromised his double jeopardy rights under the fifth amendment. He argued that if, as he claims, the evidence was insufficient on the subsection (D) and (E) charges, the new trial on those charges would constitute a second trial for the same offense. The district court, however, declined to reconsider its prior order and denied Szado's motion. This appeal followed. We reverse and remand.

I

The first issue we must address is whether we have jurisdiction to entertain Szado's appeal: whether the district court's order from which Szado appeals is a final, appealable order within the meaning of 28 U.S.C. Sec. 1291.

"Finality as a condition of review is an historic characteristic of federal appellate procedure." Cobbledick v. United States, 309 U.S. 323, 324, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940). Thus, pursuant to 28 U.S.C. Sec. 1291, our jurisdiction is limited to "appeals from all final decisions of the district courts of the United States." The finality of section 1291 "has been particularly stringent in criminal prosecutions because the delays and disruptions attendant upon intermediate appeal, which the rule is designed to avoid, are especially inimical to the effective and fair administration of the criminal law." Abney v. United States, 431 U.S. 651, 657, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977) (Abney ) (internal quotations omitted); see also Flanagan v. United States, 465 U.S. 259, 264, 104 S.Ct. 1051, 1054, 79 L.Ed.2d 288 (1984) (Flanagan ).

In this case, both Szado and the government agree that the district court's order is not "final" in the sense that it did not terminate the criminal proceedings in the district court. Szado, however, contends that the district court's order falls within the collateral order exception to the final judgment rule first articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). "To come within the 'small class' of decisions excepted from the final-judgment rule by Cohen," Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2548, 57 L.Ed.2d 351 (1978), the district court's order must, at a minimum, meet three conditions. First, it "must conclusively determine the disputed question"; second, it must "resolve an important issue completely separate from the merits of the action"; and third, it must "be effectively unreviewable on appeal from a final judgment." Id. (footnote omitted).

Szado does not question the narrowness of the collateral order exception in the criminal context. See Flanagan, 465 U.S. at 265, 104 S.Ct. at 1054-55 ("Because of the compelling interest in prompt trials, the Court has interpreted the requirements of the collateral-order exception to the final judgment rule with the utmost strictness in criminal cases."). Szado argues, however, that the district court's order is squarely within the small category of cases which the collateral order exception is designed to cover. He contends that the district court's refusal to rule on the sufficiency of the evidence presents the same type of double jeopardy concern that motivated the Supreme Court to hold collateral orders appealable in Abney and Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984).

In Abney, the Court held that the defendant's appeal of a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds satisfied all three Cohen requirements. In doing so, the Court emphasized "the special considerations permeating" double jeopardy claims. Abney, 431 U.S. at 663, 97 S.Ct. at 2042. Addressing Cohen 's threshold requirement that the order conclusively determine the disputed question, the Court stated that the order before it clearly constituted "a complete, formal, and, in the trial court, final rejection of a criminal defendant's double jeopardy claim. There are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred by the Fifth Amendment's guarantee." Id. at 659, 97 S.Ct. at 2040. Discussing Cohen 's second requirement that the order resolve an issue completely separate from the merits of the action, the Court emphasized that "the very nature of a double jeopardy claim is such that it is collateral to, and separable from, the principal issue at the accused's impending criminal trial, i.e., whether or not the accused is guilty of the offense charged." Id. Finally, the Court concluded that the third prong of the Cohen test was satisfied, stating that "the rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy were postponed until after conviction and sentence." Id. at 660, 97 S.Ct. at 2040-41.

In Richardson, the Supreme Court followed Abney and held that it had jurisdiction over an appeal similar to the one before us. The petitioner had been tried and acquitted of one count of a three count indictment. 468 U.S. at 318-19, 104 S.Ct. at 3082-83. When the jury was unable to agree on the other counts, the district court declared a mistrial on those counts and scheduled a retrial. Id. at 319, 104 S.Ct. at 3082-83. The petitioner then moved for a judgment of acquittal based on the legal insufficiency of the evidence and argued that retrial was barred by the double jeopardy clause of the fifth amendment. Id. The district court denied the petitioner's motion and he appealed. Id. The Court concluded that even though the resolution of the petitioner's double jeopardy claim "inevitably involves evaluation of the sufficiency of the evidence against petitioner at the first trial," it was appealable because the petitioner sought "review of the sufficiency of the evidence at his first trial, not to reverse a judgment entered on that evidence, but as a necessary component of his separate claim of double jeopardy." Id. at 321-22, 104 S.Ct. at 3084. The Court, therefore, followed its reasoning in Abney and held that because the petitioner had raised "a colorable double jeopardy claim," id. at 322, 104 S.Ct. at 3084 (emphasis added), the claim was appealable under 28 U.S.C. Sec. 1291.

Although neither Richardson nor Abney explicitly controls our decision here, the application of the principles of those two precedents directs a conclusion that Szado's appeal falls within Cohen 's collateral order exception. Richardson is particularly persuasive. The only real difference between the appeal in Richardson and the one here is that in Richardson, the district court actually ruled that the evidence was sufficient at the first trial, whereas here the district court simply declined to rule on that issue. In both cases, however, the double jeopardy claim is the same: the defendant contends that he has a right to a ruling on the sufficiency of the evidence before he faces a second trial. It would be inconsistent as well as inequitable not to extend Richardson to reach the present situation. Nor can we distinguish Richardson on the basis that the double jeopardy claim is less "colorable" here.

Even aside from Richardson, however, the application of the Cohen factors to this case makes it clear that we have jurisdiction over Szado's appeal. First,...