U.S. v. Yellow Freight System, Inc.

• Decision Date: 20 February 1981
• Docket Number: Nos. 79-1665,79-1666,s. 79-1665
• Citation: 637 F.2d 1248
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. YELLOW FREIGHT SYSTEM, INC., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. DUNCAN CERAMICS, INC., a corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1248

637 F.2d 1248

UNITED STATES of America, Plaintiff-Appellee, v. YELLOW FREIGHT SYSTEM, INC., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. DUNCAN CERAMICS, INC., a corporation, Defendant-Appellant.

Nos. 79-1665, 79-1666.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Aug. 11, 1980.

Decided Oct. 17, 1980.

Rehearing Denied Feb. 20, 1981.

As Amended on Denial of Rehearing and Rehearing En Banc

February 20, 1981.

Trevor C. Clegg, Wild, Carter, Tipton, Quaschnick & Oliver, Dean A. Bailey, Stammer, McKnight, Barnum & Bailey, Fresno, Cal., argued, for defendant-appellant.

Michael L. Martin, Washington, D.C., argued, James E. White, Asst. U.S. Atty., Fresno, Cal., on brief, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before KILKENNY and FARRIS, Circuit Judges, and BELLONI, ^* District Judge.

FARRIS, Circuit Judge:

Yellow Freight System, Inc., and Duncan Ceramics, Inc., appeal the district court's denial of various pretrial motions to dismiss informations filed against them. Appellee United States moves to dismiss the appeals for lack of appellate jurisdiction. We dismiss in part and affirm in part.

On November 30, 1977, the United States served Yellow Freight and Duncan Ceramics with summonses and filed informations alleging that on fifty occasions Yellow Freight knowingly gave and Duncan Ceramics knowingly received rate concessions on interstate shipments of goods. The Elkins Act proscribes rate concessions and imposes a penalty of $1000 to $20,000 fine and up to two years' imprisonment in a penitentiary for granting or receiving rate concessions. 49 U.S.C. § 41(1), (3) (1976). ¹

On April 3, 1979, Yellow Freight and Duncan Ceramics filed a set of motions in the district court to dismiss the informations. In part these motions claim that the Elkins Act does not apply to motor carriers. In addition, however, this set of motions alleges that the informations are procedurally insufficient because (1) the crimes alleged are infamous and therefore must be prosecuted by grand jury indictment and (2) in any event the prosecution may not proceed without a preliminary determination of probable cause. The district court denied these motions.

I. Appellate Jurisdiction

Yellow Freight and Duncan Ceramics seek to base appellate jurisdiction on 28 U.S.C. § 1291 (1976), which grants appeals of right from "final decisions of the district courts." Specifically, they attempt to characterize the denial of their second set of motions as a "collateral order" appealable as a final decision under the rationale of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949).

As applied to criminal pretrial orders, this rationale confers appellate jurisdiction when:

1. The pretrial order fully disposed of the appellants' claim 2. The appellants' claim is collateral to, and separable from, the principal issue of guilt or innocence; and

3. The order involves an important right that would be lost if review had to await final judgment.

See Abney v. United States, 431 U.S. 651, 658-62, 97 S.Ct. 2034, 2039-41, 52 L.Ed.2d 651 (1977); United States v. Griffin, 617 F.2d 1342, 1344-46 (9th Cir. 1980). Inquiry into the immediate appealability of a particular pretrial order must focus upon each claim asserted. Thus immediate appealability of one of the defendants' claims will not confer pendent appellate jurisdiction over defendants' other claims. Abney v. United States, 431 U.S. 651, 662-63, 97 S.Ct. 2034, 2041-42, 52 L.Ed.2d 651 (1977). ² Accordingly, the threshold issue of appellate jurisdiction must be addressed for each of the three claims asserted by the defendants, Yellow Freight and Duncan Ceramics.

A. Elkins Act Contention.

Yellow Freight and Duncan Ceramics' claim that the particular provisions of the Elkins Act asserted in this case do not apply to motor carriers is not immediately appealable. The issue is "plainly not 'collateral' in any sense of that term." Abney, 431 U.S. at 663, 97 S.Ct. at 2042. It "may be reviewed effectively, and, if necessary, corrected if and when a final judgment results." Id. We accordingly grant the motion to dismiss the appeal as to the defendants' substantive claim.

B. Indictment Clause Contention.

Yellow Freight and Duncan Ceramics contend that they have been charged with an infamous crime for which they may not, under the indictment clause of the Fifth Amendment, be "held to answer" except upon grand jury indictment. This claim meets all three of the standards for immediate appealability. Denial of defendants' motion completely and finally determined their claim in the trial court. Allowing the trial to progress so that facts may develop will not facilitate consideration of their claim. Cf. United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978) (no immediate appeal of denial of speedy trial claim under Sixth Amendment because determination of merits of claim depends on circumstances surrounding trial). Second, the entitlement of Yellow Freight and Duncan Ceramics to an indictment before prosecution is wholly collateral to and independent of the issue of their guilt on the underlying charges. Finally, the claim involves a right that would be irretrievably lost if the defendants were forced to stand trial before appeal. One purpose of the indictment clause is to shield defendants from unwarranted prosecutions for serious crimes. Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569 (1962); Stirone v. United States, 361 U.S. 212, 218 & n.3, 80 S.Ct. 270, 273 & n.3, 4 L.Ed.2d 252 (1960); Gaither v. United States, 413 F.2d 1061, 1066 (D.C. Cir. 1969); United States v. Cox, 342 F.2d 167, 170 (5th Cir.), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965); see also United States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974). Like the contentions held immediately appealable in Abney and Griffin, therefore, this claim "involves a right to be free from prosecution itself, rather than merely to be free from subsequent conviction." Griffin, 617 F.2d at 1345; see Abney, 431 U.S. at 660-62, 97 S.Ct. at 2040-41. We therefore deny the motion to dismiss with respect to this claim. ³

C. Due Process Contention.

Finally, Yellow Freight and Duncan Ceramics contend that, even if they may be prosecuted by information, they are entitled to a preliminary hearing on the issue of probable cause. They assert that the trial itself will deprive them of protected liberty and property interests and argue that due process requires a hearing. This contention fulfills the first two elements of the Abney test. It has been fully disposed of by the trial court and is separable from the principal issue of guilt or innocence. At first blush, it also appears to meet the third element of the Abney test. If review must await final judgment, the defendants will have been subjected to a trial from which they assert they are constitutionally immune.

Since Abney, many appeals from pretrial orders have come before us. In these appeals defendants have demonstrated remarkable ability to frame almost any argument to meet the Abney test. Because the filing of an appeal allowable under Abney deprives the trial court of jurisdiction to proceed with trial, Moroyoqui v. United States, 570 F.2d 862, 864 (9th Cir. 1977), cert. denied, 435 U.S. 997, 98 S.Ct. 1651, 56 L.Ed.2d 86 (1978), defendants delay their trial when they pursue Abney appeals. So that defendants need not completely forego speedy trial to seek vindication of the rights protected by Abney, we must adopt procedures to dispose of these appeals as quickly as fair consideration permits.

We therefore hold that, in order to show that his or her claim involves an important right requiring immediate review, a defendant must first identify a valid principle of law that can apply to his or her case. See United States v. Perkins, 433 F.2d 1182, 1183, 1186 (D.C. Cir. 1970) (dismissing Abney -type appeal because issues posed were insubstantial). The defendant must then show that the principle confers an important right and that the right can only be preserved by immediate review. Failing such showings, an Abney appeal will not survive a motion for dismissal for lack of appellate jurisdiction.

Despite defendants' artful pleading, their final claim involves no important right that would be lost if we refuse immediate review. Although a defendant arrested or otherwise restrained has a Fourth Amendment right to a preliminary hearing on the issue of probable cause, absent restraint a prosecution may be maintained without any finding of probable cause. See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), where after holding that an arrested defendant is entitled to a judicial determination of probable cause independent of the prosecutor's decision to file an information, id. at 117-18, 95 S.Ct. at 864-65, the Court continued:

In holding that the prosecutor's assessment of probable cause is not sufficient alone to justify restraint of liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute. Instead, we adhere to the Court's prior holding that a judicial hearing is not prerequisite to prosecution by information. Beck v. Washington, 369 U.S. 541, 545, (82 S.Ct. 955, 957, 8 L.Ed.2d 98) (1962); Lem Woon v. Oregon, 229 U.S. 586, (33 S.Ct. 783, 57 L.Ed. 1340) (1913).

Id. at 118-19, 95 S.Ct. at 865. ⁴ Thus, defendants have identified no interest cognizable under the due process clause. Because defendants assert a claim based upon a legal theory foreclosed by the Supreme Court, their claim does not involve an "important right," 431 U.S. at 658, 97 S.Ct. at 1039, the third element of the Abney test is not met, and the district court's denial of this claim is not immediately appealable. ⁵

II. Prosec...