U.S. v. Tom

• Decision Date: 31 March 1986
• Docket Number: Nos. 946,950,972 and 1065,D,s. 946
• Citation: 787 F.2d 65
• Parties: UNITED STATES of America, Appellee-Cross-Appellant, v. Danny TOM, Jackie Mooi and Robert Hsu, Defendants-Appellants, and Lenny Chow, Yin Poy Louie and Robert Hsu, Defendants-Cross-Appellees. ockets 86-1017 and 86-1040 to 86-1042.
• Court: U.S. Court of Appeals — Second Circuit

Page 65

787 F.2d 65

UNITED STATES of America, Appellee-Cross-Appellant, v. Danny TOM, Jackie Mooi and Robert Hsu, Defendants-Appellants, and Lenny Chow, Yin Poy Louie and Robert Hsu, Defendants-Cross-Appellees.

Nos. 946, 950, 972 and 1065, Dockets 86-1017 and 86-1040 to 86-1042.

United States Court of Appeals, Second Circuit.

Argued March 6, 1986.

Decided March 31, 1986.

Barry Fallick, New York City (Rochman, Platzer & Fallick, New York City, on brief), for defendant-appellant Tom.

David L. Lewis, New York City (Lewis & Fiori, New York City, on brief), for defendant-appellant Mooi.

Jerry L. Tritz, New York City, for defendant-appellant-cross-appellee Hsu.

Steven A. Standiford, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., Warren Neil Eggleston, Asst. U.S. Atty., Nancy E. Ryan, Ellen M. Corcella, Sp. Asst. U.S. Attys., New York City, on brief), for appellee-cross-appellant.

Elyse S. Goldweber, New York City, for defendant-cross-appellee Louie.

Eric J. Greenbush, New York City, submitted a brief for defendant-cross-appellee Chow.

Before FEINBERG, Chief Judge, NEWMAN and WINTER, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This is an interlocutory appeal and cross-appeal from an order of the District Court for the Southern District of New York (Robert W. Sweet, Judge), 625 F.Supp. 1327, granting in part and denying in part motions in a pending criminal case for dismissal of portions of an indictment charging conspiracy and substantive violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Sec. 1962(c), (d) (1982). For reasons that follow, we dismiss for lack of appellate jurisdiction.

The indictment charges twenty-five defendants with violations of section 1962(c) and (d) and other offenses. The RICO charges are based on the operation of a street gang known as "Ghost Shadows," which is alleged to be a group of young men of Chinese origin operating in the Chinatown area of New York City through a pattern of racketeering activity that includes murder, kidnapping, robbery, extortion, and gambling. The indictment sets forth in support of both the conspiracy and substantive RICO counts a total of eighty-five predicate acts of "racketeering activity" to establish the "pattern of racketeering activity" that is an element of section 1962. See 18 U.S.C. Sec. 1961(1), (5). Several defendants moved to dismiss those predicate acts alleging conduct for which they had been either convicted or acquitted in prior state court prosecutions. Judge Sweet denied the motions insofar as they challenged the inclusion of predicate acts on which state court convictions had been obtained, but he granted the motions with respect to predicate acts that included conduct for which there had been state court acquittals. From this ruling two defendants appeal, ¹ and the Government cross-appeals. The appeal was expedited in view of the impending trial, now scheduled to begin April 14.

Initially, we must consider the issue of appellate jurisdiction, which was not briefed by any of the parties, an especially surprising omission by the Government, which may pursue appeals in criminal cases only in carefully defined circumstances. See 18 U.S.C. Sec. 3731 (1982). ² During oral argument, we asked for supplemental papers concerning the jurisdictional issues, which have been received.

I. The Defendants' Appeal

Defendant Jackie Mooi appeals from the denial of his motion to dismiss predicate act 13, charging him and others with conspiracy to rob and robbery of a jewelry store. Mooi was convicted of robbery on his plea of guilty in the New York Supreme Court. Defendant Danny Tom appeals from the denial of his motion to dismiss predicate act 81, charging him and others with conspiracy to extort and extortion of Wai Kang Leung. Tom was convicted of extortion on his plea of guilty in the New York Supreme Court.

The appellants claim jurisdiction under the collateral order doctrine as applied to orders denying motions to dismiss one or more counts of an indictment on grounds of double jeopardy. See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Though recognizing that the rule of finality "has been particularly stringent in criminal prosecutions," id. at 657, 97 S.Ct. at 2039, the Supreme Court in Abney permitted an interlocutory appeal of the denial of a motion to dismiss the entirety of a one-count indictment. The Court did so to afford the defendant an opportunity to vindicate that aspect of the Double Jeopardy Clause that provides "a guarantee against being twice put to trial for the same offense." Id. at 661, 97 S.Ct. at 2041 (emphasis in original) (footnote omitted).

Abney does not support interlocutory appellate jurisdiction of that portion of the District Court's order refusing to dismiss one predicate act as against Mooi and one predicate act as against Tom. Even if both defendants were to succeed on the merits of their claims, they would still face trial on the indictment and specifically on Counts 1 and 2, which charge the RICO violations, because each defendant is charged with at least two other predicate acts. ³ Two acts of racketeering activity are sufficient to satisfy the "pattern of racketeering" element of RICO. 18 U.S.C. Sec. 1961(5). Where a defendant challenges an entire count on grounds of former jeopardy, lack of an interlocutory appeal would prevent all opportunity to vindicate the asserted right to avoid trial on that count. But where, as here, the defendant will be tried on the count even if the challenged portion of the count is stricken, obliging him to proceed with the trial and pursue his claim only on appeal from conviction, should one occur, does not forfeit an opportunity to vindicate a right to avoid trial on that count. As the Court emphasized in Abney, in the context of a double jeopardy claim, an interlocutory appeal is available under the collateral order doctrine only where the asserted right would be " 'lost, probably irreparably,' if review had to await final judgment." 431 U.S. at 658, 97 S.Ct. at 2039, 2040 (quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949)).

Appellants apparently believe that an interlocutory appeal may be taken from a pretrial ruling in a criminal case that denies any relief sought on the basis of the Double Jeopardy Clause. We disagree. Such an approach would permit a defendant to take an interlocutory appeal from any pretrial ruling that denied a motion to exclude evidence on grounds alleged to arise from the Double Jeopardy Clause. If a defendant has a valid double jeopardy claim, he is entitled to present it on an interlocutory appeal to avoid "the personal strain, public embarrassment, and expense of a criminal trial" on the indictment or count for which he has previously been in jeopardy, Abney v. United States, supra, 431 U.S. at 661, 97 S.Ct. at 2041. However, he is not entitled to an interlocutory appeal to avoid whatever slight increment of strain, embarrassment, or expense might arise from having to defend against allegations made or evidence presented in connection with a count on which trial will in any event occur.

II. The Government's Cross-Appeal

The Government cross-appeals from that portion of the District Court's order striking three predicate acts, one each as to defendants Robert Hsu, Lenny Chow, and Yin Poy Louie. Each predicate act charged one of these defendants with some conduct of which he had been acquitted in a state court. Predicate act 24 charged Hsu and others with conspiracy to murder and attempted murder of Louie. Hsu was acquitted of the attempted murder by the New York Supreme Court. He was not charged in the state court with conspiracy to murder. Nevertheless, the District Judge dismissed all of predicate act 24 as against Hsu. Predicate act 64 charged Chow and others with conspiracy to murder and the murder of William Chin. Chow was acquitted of conspiracy and murder by a state court in Illinois. Predicate act 64 was dismissed as against Chow. Predicate act 75 charged Louie and others with conspiracy to murder and attempt to murder Robert Hu. Louie was acquitted of the attempted murder by the New York Supreme Court. He was not charged in the state court with conspiracy to murder. Nevertheless, all of predicate act 75 was dismissed as against Louie.

In its supplemental papers the Government recognizes that it may appeal an adverse ruling only when authorized by statute, United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445 (1892), and that the only relevant statutory provision is 18 U.S.C. Sec. 3731 (1982), which provides in pertinent part:

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

Had the District Court's order dismissed the entire indictment or even an entire count as to one or more defendants, an interlocutory appeal by the Government would have unquestionably been permissible. Uncertainty arises in this case, however, because the striking of predicate acts 24, 64, and 75 as against Hsu, Chow, and Louie, respectively, dismissed only a portion of Counts 1 and 2 of the indictment.

We have had occasion to consider the appealability of rulings that effectively eliminate portions of counts of an indictment in three cases, United States v. Alberti, 568 F.2d 617 (2d Cir.1977), United States v. Margiotta, 646 F.2d 729 (2d Cir.1981) (Margiotta I ), and United States v. Margiotta, 662 F.2d 131 (2d Cir.1981) (Margiotta II ). In Alberti we entertained an interlocutory appeal from a ruling striking portions of a one-count indictment charging false statements before a grand jury in violation of 18...