*1 оf provisions Here, other where and the debtor argue that employees The Bank- controlling, specifically if are all enriched Code unjustly will be creditors its discretion abuse not did not classified Court ruptcy are Benefits Stay-On of Dev. re Arrowmill According to § 105. See In expenses. under administrative (Bankr.D.N.J. “them to allow n. 9 will this Corp., 211 B.R. employees, con- [employees’] re- of the authorize 1997) (“section not the benefit 105 does retain law”) the promised expending specific without more sideration with lief inconsistent at 22. Br. Appellants’ omitted). The compensation.” citations (quotation of any provision not cite do employees The ex- “[t]o Court determined Bankruptcy of this support in Bankruptcy Code § rele- of 503 language clear tent in on our decision they rely but argument, prepetition general claims to their gates Indus., Inc., re Visual payment immediate status, order for an court bankruptcy Cir.1995), and several and ordered inappropriate,” § 105 is under decisions. § 507 § extent “[t]o Indus., Sec- concerned Inc. re In Visual expense status administrative grant Code, 11 506(c) Bankruptcy tion made claims, will be payment Employees’ “[t]he 506(c), provides § which U.S.C. for payments of the schedule according to secur- property may recover trustee n. 8. This at 396 App. claims.” similar reason- claim the secured ing an allowed § of application a clear order is pre- of expenses able, necessary costs of discretion abuse represent an not does of, property such disposing serving, or § 105. under of to the holder benefit any extent of ex- do not employees claim.” such VI. applied be provision can how this plain reasons, аffirm we foregoing For case, see no basis and we present Court. judgment all considered doing so. We per- are but authorities employees’ Bankruptcy decision
suaded unjust enrich- results case under the ground there is or Bene- Stay-On treating all of Code America, STATES UNITED expenses. as administrative fits Appellant, V. Habina; PHARIS; J. Edward M. David assert that finally employees Gangloff. Harry Dull; M. William un ordered should payment
immediate provides: 00-2855. der U.S.C. No. order, process, any may issue
The court Appeals, States Court appro- necessary or that is judgment or Third Circuit. of this provisions carry out priate to 31, 2001. May Argued title providing of this provision title. No by party an raising issue for the Feb. En Banc Reargued preclude construed shall be interest 26, 2002. July Filed from, taking any sponte, sua the court 30, 2002. Sept. Amended As nec- making determination action or or im- enforce appropriate essary or rules, or to orders court
plement process.
prevent abuse
See also 2000 WL 2000 WL Kurland, Kathleen Amy L. (argued),
mer Attorneys, Rice, Assistant PA, appellant. Philadelphia, Law Office (argued), Goldberger Peter *3 PA, Ardmore, for Goldberger, of Peter Pharis, Rogers John M. David appellee Brotman, & Car- Carroll Carroll, Ellen C. Berg- PA, A. Thomas roll, Philadelphia, William Malvern, PA, appellee for strom, Carroll, & Carroll Dull, Colas Thomas M. PA, appellee Cedrone, Philadelphia, Morris, Philadel- John W. Harry Gangloff, Habina. J. PA, Edward appellee phia, May Argued SLOVITER, FUENTES Before: COWEN, Judges. Circuit 13, 2002. Feb. En Banc Reargued BECKER, Judge, Chief Before: SCIRICA, MANSMANN,* SLOVITER, McKEE, ROTH, ALITO, NYGAARD, AMBRO, BARRY, RENDELL, COWEN, Judges. Circuit FUENTES 26, 2002. July Filed THE COURT OF OPINION SLOVITER, Judge. Circuit criminal this federal jury for After the sworn, witnesses after two had been case testimony of a testified, and after had Gov- stipulated, the had been third witness a notice filed ernment Court. by the District ruling adverse hear its we can us is beforе whether issue appeal.
I. PROCEDURAL AND FACTS
BACKGROUND grand a federal November On Attor- Stiles, R. Michael indictment six-count returned jury A. Zauz- Jr., Robert Batty, S. ney, Walter * in this join or concur could she before in died participated Mansmann Los Carol Hon. case, Opinion. but decision argument and oral charging that from January 1988 until payment) that appears to be unrelated to Pharis, June 1995 David Habina, Edward the alleged inflation of any client’s bill. Dull, (Defen- William and Harry Gangloff Friday, On September 22, Habina re- dants) fraud, committed mail sponded in opposition violation of to the Government’s (2001), 18 U.S.C. motion, inflating con- limine arguing that pro- sulting bills posed that they submitted evidence insur- “utterly irrelevant.” App. ance companies. at 47. business, Defendants’ That motion was among the S.T. matters International, Hudson Inc., addressed in the order and its entered by specialized affiliates Court on providing September services was denied. companies insurance which had Government large does *4 press that matter on appeal. influxes claims following disasters. Pharis was the president CEO and of Hud- Also on Friday, September 22, Pharis
son, Habina the president, vice Dull an filed a Joint Trial Motion to Redact Indict- associate, and Gangloff a computer consul- ment and Motion (hereaf- In Limine No. 1 tant. ter “Motion to Redact”), accompanied by a supporting memorandum of law from all According to the Defendants Defendants. In memorandum, that Defen- began their fraudulent in scheme by dants argued that the Government exhibits manually changing consulting Spe- bills. revealed that there were really sepa- two cifically, the indictment alleged that start- rate schemes—the manual billing scheme ing in 1989 and continuing until February which ended in February 1993 and the 1994, Pharis, Habina, and Dull “manually computerized billing scheme which began changed, or their instructed employees to in February 1994. Defendants claimed manually change, ‘pre-bills’ that accu- that the schemes in differed methodology, rately reflected the billings, consultants’ by scope, and participants, that the statute of inflating the number of hours consul- limitations barred criminal liability for the tant App. worked.” at 14. The indictment manual billing scheme, that there was no alleged further that February jurisdiction federal alleged as to that man- Pharis directed Gangloff to develop a com- billing ual because there were no related puterized billing program, known as the mailings alleged and only that the compu- “gooser,” that automatically multiplied the terized billing scheme was actionable as hours each consultant worked a factor federal mail motion, fraud. The of 1.15 and then added an additional half specifically alleged that the Government hour to the total hours billed. App. at 15. was improperly charging two separate In payment produced of bills by this com- schemes, fraud requested that the District puter program, Hudson’s clients mailed to Court redact from the indictment all refer- Hudson the six checks form the basis ences to the earlier scheme and exclude all for the Government’s charge of mail fraud. evidence relating or, to in the alterna- The trial was scheduled to start on Mon- tive, that the court direct the Government day, September 25, 2000. When the Gov- to show the admissibility of such evidence ernment filed its trial memorandum on 404(b) under Rule by demonstrating that Wednesday, September 20, it included a probative value of the pre-1994 evi- motion limine seeking offer, to under dence was substantially greater than either Federal Rule of Evidence 402 or prejudicial effect. Defendants sought by 404(b), evidence of an incident of un- their Motion to Redact preclude charged misconduct Dull (specifically, Government from presenting any evidence the wrongful retention of a client’s over- about the manual changes bills that ” checks,’ con- scheme, is, February 1989 to
occurred as all six counts that inasmuch year cluded roughly but all covers period in 1994 mailings relate in the the indictment described the time a half of conduct relating to “acts those indictment. the indictment alleged in than that other Govern- September Monday, On not demon- do acts that other constitute Redact, Motion to responded statute, fraud mail violations strate of a allegation indictment’s defending the bad acts of Defendants’ other show but sworn in jury scheme. single (quoting at 4 Govern- Id. character.” afternoon. motion) (first alternation in limine ment’s 26,1 after the September Tuesday, On District led the Court This in original). instruc- given preliminary had been jury other acts of such evidence hold that in the statements opening before tions but 404(b) to con- Rule inadmissible under Defen- granted trial, District balancing test clude, performing after its memoran- Redact. Motion dants’ proba- Rule under required Court, addressing dum, the District was substantial- of such evidence tive value the evi- regarding motion Government’s *5 unfair danger ly outweighed of a retention wrongful of Dull’s dence Id. prejudice. at the cir- discussed overpayment, client’s un- evidence under cumstances Defen- granted After be admitted could misconduct charged counsel, prior motion, dants’ Government .404(b). Interspersed Rule pursuant statement, re- opening delivering her of that discussion Court’s District with for clarifica- conference quested a sidebar pertinent to more comments were evidence denied The court order. the court’s tion of Motion Defendants’ by the raised the issue her presented then request. this Counsel “Here, stated, Thus, the court to Redact. called witness. statement opening evi- seeks introduce the Government District Court testimony, the During occurring between allegedly of acts dence would that the Government reiterated February 1994.” United altering any acts of prove permitted 99-CR-743, op. at slip Pharis, No. v. at 174-76. App. to 1994. prior of bills (E.D.Pa. Sept. filed 2000 WL witness, the first After the Government’s 2000) Sept. order]. [hereinafter morning. following until court recessed on the comments additional After Dis- day after the September On the court payment, retained wrongfully ruling was announced original trict Court’s scope of a discussion then shifted continued, the Govern- the trial but before statute, stating fraud mail the federal reconsideration. for ment filed motion in- limited those “only reaches the statute made es- motion the Government mails the use in which stances raised it has arguments the same sentially Id. at the fraud.” execution part of “ District Court on appeal. before us mail- court, noting ‘[t]he 3—4. request for the Government’s declined that customers are checks this case ings in for reconsid- until motion continuance Hudson’s in payment sent to Hudson “ ” The Government upon. was ruled eration was not scheme ‘[t]he services’ and the witness another to call proceeded fruits received until Hudson complete September 26. memorandum order and 1. The court’s issued filed but were September 25 dated parties agreed stipulation to a sworn, about the and its order dated September 28, testimony of a third witness. 2000 denying the Government’s motion for reconsideration. The Government re- The following day, September in re- quested that the case be stayed pending reconsideration, jecting motion the appeal. Defendants filed motions for 404(b) quoted District Court again Rule judgment of acquittal. Defendants also length, said the manually changed bills asked the District Court to continue the were a of uncharged “collection bad acts trial with the jury. current The District ... utterly [that are] unrelated to of- Court denied these requests three and dis- fenses which charged,” are United States missed the jury. Pharis, 99-CR-743, No. slip at 3 op. (E.D.Pa. 2000) Sept. [hereinafter Sept. II. ANALYSIS added), (emphasis order] and held those “prior bad acts” to be inadmissible. Id. at A. The District Court’s 4-5. again, And citing Rule the Dis- September 26 Order Court, trict using the language of Rule On appeal, Defendants do not defend the 404(b), that, repeated although the evi- District Court’s order of September 26, its dence could be used to show Defendants’ order denying the Government’s motion “motive, intent, plan, scheme or course of for reconsideration and the justifi- court’s conduct,” probative value of the evi- cation for these orders. See Transcript of dence was substantially outweighed by the (Feb. Argument 2002) Oral at 57 [here- danger of prejudice. unfair Id. at 3-4. inafter (agreeing Tr.] that the indictment The Court concluded: charged scheme) a single and Tr. at 59-60 *6 To the extent which the Court’s (stating that the District Court misunder- prior Order intimated that it redacted stood both the Government’s motion in the Court now clarifies limine and Redact). Defendant’s Motion to prior First, order. the Court based The District Court’s September its decision to bar admission of evi- order, in addition to denying the Gov dence during period 1989 to 1992 on ernment’s motion to admit evidence of oth basis Federal Rules of Evidence er Defendants, misconduct of also denied 403, rather than on any authority to “the Government’s motion to admit evi redact the indictment.... dence of uncharged misconduct” under [U]nder Federal Rule of Evidence 404(b) Rule granted Defendant’s Mo 403, this Court is granted substantial tion to Redact. Sept. 26 order at 7-8. In discretion in balancing probative val- so ruling, the District Court appears to ue of evidence on the one hand and the operated under a misunderstanding prejudice unfair of evidence on the oth- as to the nature of the Government’s er. charge and applicable law.2 The Court Id. at 4. stated that because all six counts of the
After receiving District Court’s deni- indictment rested on mailings in 1994 and al of its motion for reconsideration, 1995, the earlier manually changed bills Government filed a notice of appeal from could not part of the mail-fraud scheme. both the District Court’s order Sep- filed point On this the District Court was plain 26, 2000, tember day after jury ly mistaken. The elements of the mail- 2. We note that the misunderstanding zation of the indictment in their Motion to likely initiated by Defendants' mischaracteri- Redact. (1) (3d defraud; Pearlstein, 531,
fraudcountsare:
a schemeto
Statesv.
576F.2d
Cir.1978).3
(2)
scheme;
use ofthe mailsto furtherthat
(3)
fraudulent intent. See United
The fact that in 1994Defendants
(3d
Sturm,
749,
States v.
671 F.2d
changed
they
the methodthat
used to
Cir.1982).
charged
The indictment
they
makeincreasesto the bills
sent their
perpetrated single
Defendants
schemeof clientsdoesnot establishthat there were
encompassed
mail fraud-onе that
both twodifferentschemes.TheDistrictCourt
manually
compu-
alteredbillsand the
,
was in error if it believedthat the shift
anylegalsignifi-
terizedbills. It is not of
increasing manually
bills
to increas
mailings
bring
cancethat the
used to
the ing
"gooser"computer
them use ofthe
schemeunder the mail-fraudstatute oc- programgaverise to a differentscheme.
single
curredat the endofthis
scheme. A By
changing
itself,
the method used to
span many years
can,
fraudulentscheme
inaugurate
commita frauddoesnot
a new
mailingsoccurringonly
withthe
at the end fraudulentscheme.
period.
See Schmuckv. United
States,
705, 711-14,
Oncethe DistrictCourt concluded
manually
(1989);
1443,
altered bills were not
Both parties agree jeopardy and be- District fore the verdict or made on an finding mistakes. indict- What should be information, done if is, however, about these mistakes attorney question we can certifies reach only if we district court that jurisdiction hear appeal. taken for
purpose of delay and that the evidence is proof substantial of a fact material in B. Jurisdiction
the proceeding. 1. Dismissal The provisions of this section shall be
The threshold liberally issue before us is construed whether to effectuate pur- jurisdiction we have pose. to hear the Govern- ment’s appeal appeal filed after —an § 18 U.S.C. sworn,
jury was after several Government argues Government the Dis- testified, witnesses and after the District trict Court’s order amounted to a dismissal Court, on the motion, Government’s recon- indictment preventing it from sidered and clarified its initial ruling.5 proving substantial, material allegations of brief, In its the Government rests our However, indictment. nothing in the jurisdiction over its interlocutory appeal on District Court’s purports order to dismiss 18 U.S.C. 3731. Br. of Appellant at 20. all six counts alleged in the statute, That Act, Criminal Appeals indictment constituting the mail fraud states, in relevant part: charges remained in the indictment as re- In a criminal case an appeal by the turned grand jury, and Defendants’ United States shall lie to a court Redact, Motion to granted, the court appeals decision, from a judgment, or did not ask dismissal of the indictment. *8 order of a district court dismissing Further, an original in its objection to Defen- indictment ... as to any one or more dants’ Motion to Redact, the Government 4. The analysis court’s respect in this is reconsideration, consis motion for modified its ini- tent holding with our that Rule 403’s balanc ruling precluded tial up evidence until ing test prong is one four-part of a test for the end Sept. 1992. 28 order at 4. The admitting 404(b). See, evidence under Rule District Court explain did not its modification. e.g., Co., Becker ARCO Chem. 207 F.3d dissent, The using telepathic its powers to (3d Cir.2000); United States v. Himel lines, read between the ascribes the District wright, (3d Cir.1994). barring Court’s "during evidence peri- the od 5. 1989 to 1992” The to "merely District a Court's initial precluded order scrivener's the op. error.” Although Government's use Dis. at through of evidence 253. it does not February 1994. disposition, The District bear Court's on our subse- we are convinced order, quent response by Government's the attempt dissent's reading. at mind acts of the constituted mailings that six motion the granting that object did not February 1994 made after were mail fraud con- That a dismissal. amount
would generated computer the out of and arose with connection only in emerged tention fol- intact counts bills, those remained for reconsidera- motion the Government’s seeks the Government the order lowing tion. appeal. that the argument Government’s that parties the acknowledged by to” a “amounted order It is District Court’s billing computerized on the focuses indictment shifted Defendants dismissal needed order, namely that influx of bills that the as a result effect supposed January from Government wake of in the precluded processing the order Angeles. fraud the mail in Los Earthquake allegations Northridge proving before The Govern- that indictment. contends in the The Government contained em- District or their that Defendants argues computerization, ment that accu- proving (a) pre-bill a draft would ployees “barred jury grand as listed worked the hours reflected rately scheme fraudulent (b) sheet, manually at 22. The time Appellant ofBr. aon consultant’s described.” that the this contention to indicate amplified pre-bill “mark-up” that Government it stated than when us more hours before worked had argument consultant oral (c) ruling consultant, its send “gutted” and then Court’s District listed it from hours for the ruling prevented the client charging a final bill case because Tr. at explains to defraud. The Government the scheme proving as increased. claiming that computer- is a effect, devised Government once Defendants that it lost simply because with its automatic system, billing occurred a dismissal ized its case. hours, was no important to ruling there evidentiary fraudulently inflated an among for the Govern- Defen- basis Thus, underlying communication need for the considera- no and hence appears employees and their ment’s dants evidentiary re- Court’s that available District comparable effect evidence ble overbilling. on the Government’s Gov- had may have ruling manual garding concern candidly concedes case. ernment would order District Court’s is that “hypo concede Defendants the fraudu- proving it from prevented form of having the an order ... thetically doubt a reasonable beyond lent scheme sweeping ... so excluding evidence manual the earlier evidence of because count proof all a any and precluded Defen- necessary to rebut overbilling characterized might be ... an indictment over- computerized defense that dants’ under a court as dismissal appellate an But merely an error. billing rul evidentiary an as than rather transforming the basis cannot be effect hypothet “that they contend ing,” yet dismissal, any ruling into evidentiary Appel- Br. of case.” ical far from rejecting es- order than midtrial more if Even agree. We lees at 28-29. govern- by the proffered evidence sential preclusive ruling District Court’s trial can be considered in a drug *9 Government, it did not by the portrayed dismissal. attempting preclude Government § autho- paragraph The second using post- to defraud prove scheme an interlocu- to take rizes the only to relating February 1994 evidence ex- a decision order tory appeal from After billing method. computerized under certain only but fraud, cluding evidence all mail alleged all, the indictment conditions. One such condition is that the It was a mistake that is not without conse- order one be “not made after the quences. defen- Because the Government failed dant put has been in jeopardy.” 18 to timely U.S.C. invoke procedural rule and § 3731. The Government concedes the statutory provision designed for the Defendants put in jeopardy by specific Sep- situation in which it itself, found tember 2000. It thus follows that the the Government seeks to turn up- statutory provision fashioned down, to cover side pre- out, inside and have this court cisely situation, the exclusion of evi- become the first to call the exclusion of dence that the Government would evidence a have dismissal of the indictment, just certified awas proof “substantial of a fact so it appeal. can material id., the proceeding,” was not We cannot allow the Govern available to the Government. ment’s concern about impact of an The Government could protected have order in a particular case to lead us to itself from the situation in which it finds overlook the distinctiоn between the first itself. Redact, Defendants’ Motion to and second paragraphs §of 3731. The which, alia, inter moved to exclude all distinction between an evidentiary ruling evidence pertaining Hudson’s billings and a dismissal exists and has meaning. before February 1994, was filed in the The District ruling Court’s was no more afternoon Friday, September 22. The than “a decision or order ... suppressing jury was impaneled not until Monday, Sep- or excluding evidence ... in a criminal tember 25. Federal Rule of Criminal Pro- proceeding” that occurred “after the de 12(e) cedure requires that the District fendant[s] been put ha[d] in jeopardy,” and Court pre-trial decide motions before the thus cannot appealed. 18 U.S.C. trial begins unless the court has deferred § 3731.6 good cause; decision for however, the rule The Government conceded at oral argu- precludes such if deferral a party’s right to ment knew no other case in adversely affected. Fed. which a court has interpreted an evidentia- 12(e). R.Crim.P. ry ruling as a dismissal of an indictment. The Government concedes that it did not Tr. at 29. Yet it has maintained before us ask the District Court to withhold swear- the present case is unique not but ing the jury until the motion to exclude rather “repetition” of United evidence was nor decided did the Govern- Maker, Cir.1984), F.2d which it 12(e) ment call Rule to the attention of the asserts should dictate this court’s analysis. District Court. Government’s counsel has Maker help, is of no and indeed is irrele- candidly conceded failing to ask the vant on the principal issue before us be- District Court not to swear jury cause, until unlike present case, that case after the pending decided, motion was came to this court after the district court Govеrnment “made a mistake.” Tr. at 7. had dismissed the indictment. Id. at 615. Further, we are unfolded, not convinced that the rul- the trial may have ing would have the draconian effect that the may appeared modified what at first to posits. Government purpose If the rigid prohibition. Moreover, be its the Gov- evidence was to show the intent defraud ernment did attempt to elicit testimony time, over a lengthy period of a skilled Gov- concerning may what have been an additional prosecutor may ernment very well have been year given Court, period by the District see question able to witnesses about issue supra note about question which to background elicit that without directly witnesses. violating the evidentiary ruling. court's As *10 decision Maker here, the but because issue occa- Maker, not have didwe
Therefore, in a when question to the pertain not does in which the circumstances address sion to evidentiary an recharacterize court should amount ruling can evidentiary an indictment, that of dismissal an as a ruling of an aof dismissal equivalent functional the Government’s support not para- does first case the falling within indictment position. §of 3731. graph on this indicted relies further Maker, Government defendants The two
In Camiel, is of no and that mail fraud in but of decision counts court’s eighteen on Camiel, jury a following defraud scheme to single either. help awith charged aris- found companies court the district guilty, insurance of three different verdict jeopar- charged a After improperly two car accidents. indictment of that the ing out sep- scheme, accordingly court ordered and attached, district the dy single fraudulent accident acquittal. to each of respеct trials with a directed verdict arate entered Id. at 615. proper the defendant. that argued each government also The Camiel, States v. Then, was on United indictment relying defective remedy for the Cir.1982), it dismissed the defen- the three of and severance retrial in allegations We acquittal. because trials, indictment than rather dants’ scheme single support not may did not a court indictment that view because rejected separate two rather but if flawed. defraud even correct accident. each arising from schemes, one Accordingly, Camiel, F.2d at 39-40. However, the Maker, at 615. trial with the “a new that we determined motion defendants’ denied the court the an- [was] not of possibility severance The at 620. Id. acquittal. of judgment judgment swer,” affirmed and thus appealed. 40. Id. acquittal. challenged this defendants The Maker Maker, support to lends Camiel As with § not be- jurisdiction under court’s in District Court conclusion on but no dismissal there cause compart- attempting in erred this case Dou- by the barred ground appeal Maker, See, e.g., evidence. mentalize that We concluded Clause. Jeopardy ble (“Camiel that ... teaches F.2d at 625 legal deter- had made court the district one scheme has whether evaluating one, so mination, a factual not a court should proved, alleged or been implicat- was not Jeopardy Clause Double actors identity of the focus on merits of review the On conduct.”). Id. at 624. ed. But of their purpose overall concluded we appeal, government’s wheth- questioned never court the Camiel only one charged the indictment govern- to hear the jurisdiction iter lacked district defraud, scheme Thus, Cam- 3731. under ment’s dismissing the indictment. court erred intimate, establish, or even iel does Id. at restricting the order court a district evidence, one that even Maker, admission at issue questions only an indict- amendment to an amounts a factual made implicitly whether court ment, a dismissal effectively constitutes the indictment dismissing determination irrelevance indictment. one that same charged the indictment and whether Camiel, legal props defraud, Maker not con- are schemes two relies, demon- of which Government analysis Maker’s in this case. tested of the Government’s weakness strates defraud of the scheme parameters argument. to reach were we useful might prove
239
pertinent
More
to the case
ing
before us is
to be a “dismissal” of the numbers-
the Supreme
opinion
in Sanabria
Court’s
betting “charge,” thus finding
juris-
it had
States,
54,
437 U.S.
98 S.Ct.
§
diction under
3731 to consider the gov-
2170,
(1978).
L.Ed.2d
The first sen-
ernment’s claim
“dismissal” was in
tence
opinion
of the
characterizes “the is-
Id. at
61,
error.
Id. at
Following the whether the horse-betting conviction of the other defendants, numbers-betting appealed activities were part from the district court’s “same order offense” so that excluding acquittal evi- dence insufficient numbers-betting activities evidence as to Sanabria’s entering judgment participation acquittal. horse betting barred the government recognized it new trial could not appeal ordered for on Sanabria the num- the ruling regarding Sanabria’s bers-betting conduct, involve- the Supreme Court ment with horse betting, as that first aspect of considered the nature of the district acquittal was based on the insufficien- court’s order with respect to the numbers- cy evidence, but it sought a new trial betting aspect charge. It did so to aspect charge involving num- ascertain whether “the theory numbers bers betting. The court of appeals inter- was dismissed the count before the preted the district court’s evidentiary rul- judgment of acquittal entered,” id. *12 of- would Clause Jeopardy Double the whether therefore 65, 98 S.Ct. num- relating to the new trial by a fended bet- of numbers acquitted Sanabria of the part charge was as that charge, bers a resolu- entailed have would which
ting,
charge
horse-betting
as the
offense”
“same
a second
precluding
issues
factual
tion of
(cid:127)
acquit-
been
had
defendant
the
which
on
govern-
The
offense.7
same
for the
trial
2170.
Id. at
S.Ct.
ted.
order
court’s
district
that the
argued
ment
the
of
minimize
tries to
portion
a discrete
of
The Government
“dismissal”
awas
limiting it
gam-
of
of Sanabria
types
two
significance
count in
judg-
a
entered
court
the trial
where
Court
Supreme
The
cases
included.
bling were
However, Sanabria’s
acquittal.
of
correct
it is
persuaded
“not
ruling based
court’s,
evidentiary
of an
analysis
action as
the trial
characterize
dis-
as
an indictment
of
interpretation
an
of the
portion
a discrete
of
‘dismissal’
indict-
of that
a dismissal
tinguished
It contin-
2170.
98 S.Ct.
Id. at
count.”
here.
applicable
isment
over
exalted
not to be
is
ued,
form
“[w]hile
appropriate
is it
“found
..., neither
in Sanabria
court
substance
The district
en-
order
offense
form of
of the
description
ignore
indictment’s
entirely to
of
Id.
the admission
trial court.”
to warrant
narrow
too
tered
2170.
at
Id.
evidence.”
certain
the district
concluded
Court
made
case
in this
Court
District
Thé
“an evi-
constituted
simply
order
court’s
the District
Accordingly,
ruling.
similar
interpretation
on its
ruling based
dentiary
case did
in this
exclusionary ruling
Court’s
indictment,”
not a dismissal.
of the
more
of one or
a dismissal
constitute
not
theAs
Court
2170.
at
Id.
scope
within
of the indictment
counts
noted,
that statute
construing
§
even
of
of
interpretation
every erroneous
[N]ot
More-
requires.
the statute
liberally, as
deciding
of
purposes
for
indictment
an
argue that
not
over,
does
the Government
re-
can be
admissible
is
evidence
what
“a
dismissed
ruling
Court’s
District
Dis-
Here
a ‘dismissal.’
garded as
an
count,”
order
from which
aof
portion
the count
find that
did not
Court'
trict
§ 3731
under
lie
court would
to this
appeal
element
necessary
charge
failed
count
portion
dismissed
“the
when
the indict-
rather,
offense;
it found
crim-
ground of
independent
an
constitutes
too
offense
description
ment’s
Serafini,
liability.” United
inal
cer-
admission
to warrant
narrow
Cir.1999).
That
8Í2, 814
extent,
believe
we
To this
tain evidence.
meritless,
itas
been
would
argument
to be char-
properly
ruling
is
below
includ-
evidence
the excluded
plain that
evidentiary
an
erroneous
acterized
pro-
thus could
mailings
alleged
no
ed
ruling.
liability.
ground
independent
no
vide
omitted).
(citation
Id.
evidentiary
Court’s
Because
a dismissal
ruling
did
constitute
concluded
Supreme
ar-
the Government’s
reject
charge,
numbers
we
ruling on
evidentiary
jurisdiction
this court has
acquittal
gument
erroneous,
“led
albeit
§ 3731.8
under
hear
id.,
held
evidence,”
insufficient
Const, amend.
U.S.
or limb.”
jeopardy of life
the Fifth
Clause
Jeopardy
7. The Double
V.
"be
shall
person
that no
provides
Amendment
put
twice
to be
offense
subject
the same
Court’s
Distriсt
we believe
Because
all, we
ato dismissal
ruling
not amount
did
needWe
not rest
disposition
our
only on 2.
Jeopardy
Double
our interpretation of
meaning
of “dis-
The first relevant question is whether
§in
missal”
3731. Even if we were to
Defendants
placed
in jeopardy. As
limit our
consideration to
3731 and as-
above,
discussed
all parties agree that the
sume that
order
District Court
*13
jury had been sworn and the trial had
(which
were a
dismissal
the indictment
been started.
were,
Defendants
therefore,
not),
we have
held was
para-
first
placed in jeopardy. This does not end
§
our
graph of
permits
3731
the Government
inquiry. As we
Maker,
in
observed
retry
only
Defendants
if the Double
Jeopardy Clause is
bar to further
[although
Supreme
Court has ex-
prosecution. The Government’s opening
plicitly held that “[t]he federal rule that
brief
this in
conceded
its section headed
jeopardy attaches when the jury is em-
“There Is No Double
Bar
Jeopardy
to a
paneled and sworn is an integral part of
Retrial.” Br. of Appellant at 30.
guarantee
constitutional
against dou-
Moreover, there is a plausible argument
ble jeopardy,”
Bretz,
Crist v.
437 U.S.
the Supreme Court’s statement
28, 38,
2156,
98 S.Ct.
242 We therefore Id. at 138-39. to it. object overreaching, United judicial Jeopardy Double 1075, 47 concluded Dinitz, 424 U.S.
v.
See
trial.
second
Love’s
prohibited
indict-
(1976);
Clause
or where
267
L.Ed.2d
(finding
at 222-23
MсKoy,
re-
591
defendant’s
also
at the
is dismissed
declaring mistrial
functionally
necessity
manifest
no
circumstances
quest
prosecution
hence,
further
mistrial,
and,
Lee v. United
holding
ato
equivalent
29-30,
jeopardy).
97
S.Ct.
double
States,
prohibited
U.S.
(1977).
also
See
L.Ed.2d
Jeffers
case,
also
there
present
States,
U.S.
Before
to termination.
alternatives
clear
(1977).
2207, L.Ed.2d
jury,
Court dismissed
15, 98 S.Ct.
n.
at 63
Id.
the trial
suggested
Government
*14
jury
passage
the
the
discharging
in
listed
briefly without
stayed
situations
The
char-
ap-
can be
expedited
Sanabria
an
from
the
during
pendency
above
quoted
defen-
in
trial
that the
suggested
as situations
Defendants
peal.
acterized
the termi-
requested
to or
court
dant consented
and until this
continue unless
could
situation, as
not such
is
This
Alternatively,
nation.
as
noted
we
stay.
granted
precedents.
by this court’s
illustrated
and
raised
had
Government
previously,
Rule
Federal
followed
Morton,
136-37
112 F.3d
Love v.
In
12(e)
ruling on
by
of the first
close
Procedure
Cir.1997),
(3d
towards
of Criminal
trial,
judge
the trial be-
the trial
motions before
criminal
the pending
of Love’s
day
had died
have been feasible
mother-in-law
would
appeal
that his
an
gan,
learned
con-
In
explicit
jeopardy.
any
Without
attachment
unexpectedly.
without
declared a
judge
Love,
no
case,
there
parties,
was
of the
sent
the present
Id. at
courthouse.
left the
trial.
and
terminate
necessity
mistrial
to
manifest
began
a new trial
day,
next
The
134-35.
necessity,
manifest
of the lack
light
In
judge. Love’s
a new
jury and
a new
with
Defendants
whether
consider
we next
jeopardy
on double
dismissal
for
request
the termination
consented
effect
judge,
by
new
overruled
grounds
argues that
The Government
trial.
In con-
convicted.
thereafter
he was
by Defendants’
prompted
termination
we held
petition,
habeas
Love’s
sidering
jeop-
thus,
double
motion,
is no
there
necessity,
manifest
demonstrate
“[t]o
that
a new trial
for
ardy bar to a remand
cir-
under the
show
must
state
consented
that Defendants
theory
‘had no alterna-
judge
trial
cumstances
termination.
The
of a mistrial.’
the declaration
tive
“[mjistrials
Love that
observed
We
exhaust all
consider
must
judge
trial
do
consent
the defendants’
with
declared
(quoting
Id. at 137
possibilities.”
other
cited
prosecution,”
a later
not bar
218, 222
McKoy, 591
v.
States
United
600, 607,
Dinitz, 424 U.S.
Cir.1979)).
principle, we
Applying
(1976).
L.Ed.2d
96 S.Ct.
necessity
no manifest
there was
held
Dinitz,
trial
Love,
at 133.
because there
a mistrial
declaring
his
during
counsel
Dinitz’s
dismissed
judge
example,
For
available.
possibilities
other
miscon-
repeated
statement
opening
with a
been continued
trial could
co-counsel,
judge asked
trial
duct.
after
new
judge presiding
replacement
the case with
discussed
who had not
Fur-
transcript.
trial
judge reviewed
trial.
witnesses,
with
proceed
the circum-
under
ther,
held
we
original
his
desire
expressed
Dinitz
to the termination
consent
stances, Love’s
him.
to defend
permitted
be
counsel
his failure to
from
inferred
could
judge
(a)
trial
offered Dinitz the choice of
dant was convicted. The Supreme Court
(b)
continuing
co-counsel,
the trial with
re
held that the Double Jeopardy Clause did
cessing the trial
during
in
attempt at
not bar the second prosecution because the
terlocutory review of the dismissal of orig
prosecution
first
was terminated at
(c)
counsel,
inal
or
declaring a mistrial to
request.
defendant’s
See also United
allow Dinitz to obtain new
Scott,
counsel. Dinitz States v.
82, 98-99,
chose a mistrial.
Before
(1978)
his subsequent
In
States,
Lee v.
United
97
trial,
nation of the
for the discharge
(1977),
dismiss for failure to charge knowledge enough to infer their consent to the intent, though even judge trial was resulting termination of the trial. convinced that the defendant guilty. was prosecution filed a corrected informa- In Kennings, we contrasted the situa- and, tion trial, after the second the defen- tion before us with that court in faced did, however, 11. Defendants ask ac- prosecution. further Defendants do not quittal, but acquittal their motion for was not they claim that acquitted and do not granted. If had acquitted, Defendants been argument base their jeopardy double that bars Jeopardy then the Double Clause would bar prosecution their ground. further on this 244 by the cited the cases each of In Dahlstrum, peal. F.2d 971 655 v. States United 248, the through pages on dissent Cir.1981)-. the defen- Kennings,
(9th firmon jurisdiction stood appellate court’s solely on the dismissal “encouraged dant Thus, States in United statutory ground. inapplica- the statute was that grounds (7th Giannattasio, Cir. F.2d v. ac- appropriate “argued ble” 1992), the dismissal immediate, the court reviewed midtrial court tion Zaba an-indictment; v. in States United F.2d at 385 n. Kennings, 861 dismissal.” Cir.1994), (10th wa, Dahlstrum, on noted 6. We Nakashian, F.2d v. States United hand, court dismissed “the [trial] other (2d Cir.1987), court deemed each pas- “the defendant sponte” case sua gov requirement district court’s response .... sively acquiesced of counts number a limited ernment select not believe he ‘did statements judge’s а dismissal to be proceed it would case,’ [and proved had counts, expressly and thus more of one or have been could not t]hus, acquiescence 3731; in § United by 18 U.S.C. accept- covered retrial would mean that read to (7th Cir. F.3d 990 Abdelhaq, 246 (quoting Id. States the defendant.” able to his appealing 975). 2001), defendant Dahlstrum, We found F.2d question conviction, was no and thus there why the explained these differences 3731; jurisdiction under not bar the did Jeopardy Clause Double Corp., 611 America v. Marubeni it did bar the Kennings but appeal (9th Cir.1980), the court 763, 764-65 Id. in Dahlstrum. Second a similar decision (following Kennings demon analysis in Our Circuit) aof substantial that dismissal held merely sets who that a defendant *16 strates within of an indictment fell of a count part that leads to of events in motion a series Woolard, v. 3731; in § and United pro her trial his or of termination Cir.1993), (5th 756, the court 757 981 by Double being from retried tected of the order jurisdiction over held it had pres in the Clause. Defendants Jeopardy penal striking the death court the district in than motion no more set ent did case it effec because as a sentence ty possible led, objections, their over events criminal of basis tively discrete “removed The real cause trial. of their the dismissal order liability.” The District Court’s was the Gov being interrupted of trial of those comparable any case is not this exclusion desire to ernment’s nor dis court struck neither cases. Because Defendants of its evidence. some of a count. portion or missed a count termination, even if consent to did not bill manual Because the references to terminate decision the District Court’s only as indictment included ing were dismissal, did constitute the trial scheme, Defendants’ history of part of the this court Clause bars Jeopardy Double them in included never the Government the Gov jurisdiction to hear having did not count, order so the court’s any appeal. ernment’s lia for criminal any discrete basis remove bility. 3. The Dissent its discussion The dissent concludes interesting discourse
The dissent’s with the sen- opinion its portion of separation important principle separa- governing “the law tence that holding of the powers overlooks executive powers tion of between court is that the lacks in this case majority demon- is sufficient to ap- judicial branches the Government’s jurisdiction hear
245
strate
the District Court’s
actions
Armstrong,
456, 464,
517 U.S.
116 S.Ct.
1480,
this case must have
resulted
a dismiss-
134
(1996);
L.Ed.2d 687
Wayte v.
added).
op.
al.” Dis.
(emphasis
States,
250
United
598,
470
607-608,
U.S.
105
The dissent’s non sequitur
1524,
is not an effec- S.Ct.
84
(1985);
L.Ed.2d
Heckler
547
tive substitute for an
order or action
v. Chaney,
821, 832,
470 U.S.
105 S.Ct.
the District Court that
1649,
does
fall
indeed
(1985);
246
United,
any
offer
so,
opinion
its
nor does
say
not
scheme,
see
the fraudulent
spe-
an anomalous
of how such
explanation
438, 451, 106 S.Ct.
Lanе,
U.S.
v.
justified.
could be
limitation
cial
(1986)
v.
Kann
(quoting
L.Ed.2d
standard,
majority
88, 94,
States,
describing
its
brief,
“hy-
appellees’
(1944));
says, quoting
United States
L.Ed.
the form
having
... an order
(3d Cir.1982), pothetically
749, 751
Sturm,
sweeping that
... so
excluding evidence
ex-
by the
encompassed
evidence
of a count of
proof
all
any and
it precluded
is
scheme
the fraudulent
half of
cluded
characterized
might
...
be
an indictment
very plausibly
crucial,
government
under
a dismissal
court as
appellate
fraud.
any
insists,
claim
proving
majority
at 235. But
Id.
3731....”
rule is
not met
majority’s
standard
upshot
concludes
“[ajfter all,
because,
the indict-
now
case
possess
in this circuit
in this
district courts
fraud,
mailings
all six
alleged mail
indict-
to rewrite
discretion
unchanneled
mail fraud
the acts of
that constituted
effect of dismiss-
having the
ments without
arose
February 1994 and
made after
changes
them,
though the
ing
even
bills, and
generated
the computer
out of
enough to
are substantial
offense elements
following
intact
counts remained
those
proving
from
government
prevent the
appeal.”
seeks
the Government
order
only limi-
most
crimes. At
defendants’
words, it is of no
In other
Id. at 235.
ma-
from the
be extracted
tation
can
Court cut
consequence that
the number
that perhaps
jority’s opinion
of the of-
one element
scope
half
offense must
type of
of counts
scheme,
and did so
fense,
fraudulent
unspeci-
some
maintained, together with
the remain-
proof
that made
a manner
elements
unspecified
about some
fied facts
consider-
offense
ing, narrower criminal
235-
Majority Op. at
See
of the offense.
impossible.
if
Con-
more difficult
ably
a district
Thus,
it would seem
not cite
majority does
spicuously,
the indict-
could,
dismissing
without
court
sweeping
supрorting
authority
legal
ment,
proceed
force
without
indictments
altering
standard
never
that was
offense
included
a lesser
dismissing them.
indictment, even
charged
expressly
that con
authority
legal
there is
And
supported
greater offense
though the
pre
powers
separation
cludes
a district
evidence. Or
by the law
reaching
so far
vents district courts
type
of fraudulent
alter
court could
selecting
branch’s role
the executive
into
example,
changing, for
alleged
scheme
charges.
scope
of criminal
type
billing
over
alleging fraudulent
a scheme
Heckler,
Armstrong, Wayte,
like
Cases
*18
ser-
billing for
fraudulent
charging
to one
Bordenkircher,
Goodwin,
Oyler,
even
performed,
never
vices that
Foundation,
establish that
Inc.
Chemical
by the
unsupported
latter
though the
charges belongs to
selecting
task of
the
decide
court could
a district
evidence. Or
Similarly,
courts
several
the executive.
al-
total
third the
losses
to reduce
a
transgresses
it
concluded
If the
a fraudulent scheme.
leged from
court to
for a district
powers
of
separation
changes
only to
rule is limited
majority’s
only
on
proceed
to
government
force
elements,
See,
offense
United
categories
e.g.,
to certain
an indictment.
parts of
(10th
Zabawa,
just
dura-
F.3d 279
Cir.
to
specifically
or even more
v.
Giannattasio, 979
1994);
in mail-fraud
United States
tion of a fraudulent scheme
(7th Cir.1992).
cases em-
These
F.2d 98
does
majority certainly
prosecutions,
body the fundamental principle that une-
In Giannattasio the Seventh Circuit
similarly
lected federal judges are not vested under
held that a district court violated
separation
powers
the Constitution with
when it
responsibility
to
forced
government
to select five of fifteen
prosecutorial
exercise
discretion and “take
present
counts to
at
Judge
trial.
Posner’s
faithfully
Care that the Laws be
executed.”
opinion explained:
II,
A
Art.
Sec. 3.
democratically
more
re-
A judge in
system
our
does not have the
sponsive branch must
left to make the
authority to
prosecutors
tell
which
difficult choices about whom to charge,
crimes to prosecute or when to prose-
which crimes to pursue, and how numerous
cute them. Prosecutorial discretion re-
serious the charges
will be. District
executive,
sides in the
judicial
not in the
courts
course retain the power to dis-
branch,
discretion,
and that
though sub-
indictments,
legally
miss
defective
they
but
ject
judicial
of course to
review to pro-
engage in freewheeling
cannot
process of
tect constitutional rights, is not reviewa-
rewriting
offering
indictments and
defen-
ble for a simple
abuse
discretion.
lighter
dants
charges.
different
This principle is most often involved
when the
issue is
prosecute
Zabawa
whom to
...
after
district
court re-
but it
equal
has
force when the issue is
quired
government
proceed
to trial
given
crimes of a
criminal
pros-
portion
a limited
ecute.
If Dr. Giannattasio committed
government objected
sought
frauds,
fifteen Medicare
judge
cannot
because
believed that
reducing the
tell the Justice Department
prosecute
prevented
counts
the government
him
only
frauds,
five of the
or to
“presenting
necessary
evidence to con-
prosecute him for
now
five
and the rest
Zabaiva,
all
vict
defendants.”
39 F.3d at
later,
if necessary.... No rule autho-
284. Although the district court did not
rizes
judge
to sever
offenses
dismiss thоse counts
the government
indictment because he believes that a
trial,
not permitted
to pursue at
trial of all
charged
the counts
clog
would
Tenth Circuit concluded that “the district
his docket without yielding any offset-
court’s
-forcing a choice of counts
order—
ting benefit in the form of a greater
without
formal dismissal of the other
likelihood of
or a
conviction
more severe
significantly
counts—is not
different from
punishment.
ordering a formal
preju-
dismissal without
Giannattasio,
(citations
decision the or on Woolard, powers separation the v. States United prosecution.”); 7(d), Cir.1993) but on (5th (finding of Fed.R.Crim.P. 756, scope 757 981 F.2d Jury Clause not dis- that did Grand Amendment’s “orders Fifth jurisdiction it in a See altered but to indictments. limiting count amendments entire miss jury’s 781, grand 1, 30 Bain, from 7 way 121 S.Ct. U.S. significant parte Ex Nakashian, v. (1887). States has been charge.”); United While Bain L.Ed. 849 Cir.1987) (“an (2d order 549, 550 impor F.2d in a number 820 limited rejected and ais between counts an election recently compelling Court Supreme respects, the tant purposes.”); 3731 for Section ‘dismissal’ Bain, the Court limiting by noted Corp., America v. Marubeni States United propo from “settled not retreat” “need Cir.1980) (find- (9th 763, 764-65 611 F.2d may “an indictment in Bain that sition” appeal of a government jurisdiction ing to except resubmission amended not be allegations striking forfeiture an order change is mere jury, grand unless indictment). from RICO v. States form.” United a matter of ly authority - confirm lines of other Two -, -, 122 S.Ct. Cotton, U.S. permitted be not should District Court (2002) (quot 1781, 1785, 860 152 L.Ed.2d fraudulent scheme scope of alter the to 749, States, 369 U.S. v. United ing Russell line of The first the indictment. alleged in (1962)). 1038, 240 770, 8 L.Ed.2d 82 S.Ct. scope Fed. interprets authority stated: Supreme In Bain 7(d), a defendant allows which R.Crim.P. to of a court province it lies within If surplusage remove that a court request of an indict- charging part change the Under charging indictment. from the it of what own notions to suit its discre- court’s rule, “scope of district been, grand or what the ought to have an indictment material tion strike if made probably have jury would Oakar, 111 v. States narrow.” United sug- had been called attention their (D.C.Cir.1997) (citing 146, 157 United F.3d importance great changes, gested 928, 1n. Jordan, 931 F.2d v. 626 States to an common law attaches which descriptive (D.C.Cir.1980)); “Words prereq- as a jury, aby grand indictment charge to the essential legally what is crime, for a trial prisoner’s to a uisite sur- as be strickеn cannot the indictment says without Constitution Practice Wright, Federal plusage.” answer,” may be held person “no shall also United 127, See at 635. Procedure al- until value is away frittered (10th Collins, F.2d 631 v. 920 States destroyed. most Figueroa, 900 Cir.1990); v. States United (8th Cir.1990); United F.2d 1218 (4th Behenna, F.2d 576 v. 552 States here Bain relevant one limitation Root, 366 F.2d Cir.1977); v. United States may choose prosecutor rule that a is the Cir.1966). (9th can “Material that 377, 381 portion indictment withdraw may only be ‘surplus’ fairly be described support proceed evidence does prejudicial.” if it is irrelevant stricken resub offense without on a lesser included Oakar, See also United F.3d at 157. jury. grand mitting the indictment 1121, 1134 F.3d Rezaq, States v. Miller, v. U.S. States United Huppert, (D.C.Cir.1998); v. States United (1985). The L.Ed.2d 99 Cir.1990); (11th 507, 511 with charged had been Miller defendant Scarpa, consenting both defrauding his insurer Cir.1990).
249
to a burglary
place
of Ms
of business and
may
be the wrong party
complain
by lying to the insurer about the value of about amendments that undermine the
his losses. After the grand jury returned
grand jury’s
role
screemng charges. Cf.
indictment,
government
moved to
Illinois,
Rakas v.
128, 134,
439 U.S.
part
strike the
alleging
421,
indictment
(1978)
S.Ct.
mail fraud.
In finding no
(1980).
violation of L.Ed.2d 633
And Bain’s rule can
Bain,
the Supreme “A
explained,
be waived.
Cotton,
United States v.
part of the
unnecessary
indictment
to and
course,
S.Ct.
1786. Of
the defendants
independent of
allegations
of the of have not
their right
waived
to a grand jury
proved
fense
may normally be treated as a
government
and the
has stead-
”
‘useless
‘may
averment’ that
ignored.’
be
ily
objections
asserted its
to the District
Miller,
In our
the government
public role beyond protecting the defen-
sought
has
abandon any allegations
dant charged, and hence the rule against
or charges and pursue a separately alleged amending indictments may serve more
offense,
or lesser
govern-
included
and the
than the defendant’s interests.
“The in-
ment has steadfastly maintained, quite vestigation of
by
grand
crime
jury
plausibly,
allegations
by
excluded
implements a
governmental
fundamental
the District Court are essential
proving
role of securing
safety
person
the defendants’ guilt
any
charge of mail
and property of the citizen.” United
fraud. The allegations
hardly
can
be de-
Calandra,
States v.
338, 344,
414 U.S.
scribed
“unnecessary”
as
“indepen-
(1974)
S.Ct.
One caveat apply- belongs to branch no of the institutional ing Bain’s prohibition on amending indict- Government, serving as a kind of buffer ments is that might rule regarded or referee between the Government and only right. govern- defendant’s people.
250 majority has the (citations only But not ments. 47, 1735 S.Ct. at 112
504 U.S. adequately, omitted). to address amendments failed re- While marks quotation and may ignore impli- the that it it also insists over- judicial expand to fusing in Williams separa- for the its decision has cations that evidence-taking jury’s grand the sight of the powers because tion of “The Court added: Supreme the process, waived, discussed, the hence and never independence from jury’s functional grand issue. in the is evident both Branch the Judicial investigate criminal power
scope
against
of its
the
by arguing
I believe that
in which
manner
in the
govern-
wrongdoing
amendment
court,
‘Unlike
has
rights
is exercised.
power
slept
has not
ment
on
upon
sepa-
predicated
protect
is
jurisdiction
designed
whose
rules
invoked
controversy,
grand
regardless,
But
powers.
case or
ration of
specific
powers
is
suspicion
separation
investigate merely
posed to
jury can
threat
violated,
any more
cannot be waived
or even
being
substantial
the law is
”
Supreme
can be. As the
jurisdiction
that it is not.’
than
it wants assurance
because
occasions, the
48,
has said on numerous
112
1735 Court
Williams,
at
S.Ct.
504 U.S.
“encroach-
powers prevents
separation
Enterprises,
v. R.
United States
(iquoting
at
of one branch
aggrandizement
292, 297,
112
111 S.Ct.
Inc., 498 U.S.
To the extent
of the other.
expense
(1991)
v.
and United
795
States
L.Ed.2d
in a
implicated
is
principle
structural
632, 642-643,
Co.,
70
338 U.S.
Morton Salt
case,
cannot
consent
parties
given
(1950)) (brackets
L.Ed. 401
94
difficulty
cure the constitutional
omitted).
Jury,
In Re
also
Grand
See
by consеnt
parties
reason
same
(3d Cir.2002);
Jury,
In re Grand
F.3d 153
subject-
federal courts
cannot confer on
Cir.2000).
These consid-
jurisdiction beyond the limitations
matter
allowing only
against
may militate
erations
III,
2.”
Section
Com
by Article
imposed
against
invoke the rule
defendant to
Schor,
v.
Trading Comm.
modity Futures
Mar-
indictments. Chief Justice
amending
833, 850-51,
106 S.Ct.
478 U.S.
grand
famous declaration
shall’s
omitted).
(1986) (citations
L.Ed.2d
public
right
“The
has the
jury proceeding,
v.
Internal
Freytag
also
Comm.
See
evidence,”
every man’s
Revenue,
111 S.Ct.
501 U.S.
(No. 14,692e)
Burr,
25 Fed.Cas.
(“[T]he
(1991).
disruption
115 L.Ed.2d
(CCVa.1807),
body’s pur-
emphasizes
by en-
process entailed
appellate
sound
public’s inter-
serving the broader
pose of
below does
objections not raised
tertaining
ests,
just
defendant’s.
and not
what Justice Harlan
always
overcome
end, however, I believe that the
strong
‘the
interest of
federal
called
separations
powers
governing the
law
maintaining
the constitutional
judiciary
judicial
branch-
the executive
between
”) The
powers.’
separation
plan
demonstrate
is sufficient to
es
why a
Freytag
about
conclusion
Court’s
in this
must
case
District Court’s actions
Clause
Appointments
under the
challenge
in a
For that
resulted
dismissal.
here.
equally
applies
not be waived
could
reason,
gov-
I
reach whether
need not
protected by
interests
“The structural
Bain’s
a violation of
can assert
ernment
are not those of
Clause
Appointments
amending indictments.
against
rule
en-
but of
of Government
one branch
880,
indictment. “Anything she has to objection, stating, in the allegations proving way of limiting a not rele- hearsay and 1989 is by excluding tell us about such *23 the manually reading altered bills. A fair App. at 175. the vant.” evidence that the saying what the District Rather, plain makes that Court record the con- indictment was all categorically in the alleged did was exclude scheme Court validly could not be the defendants’ conduct the law evidence about trary to gooser pro- the any period means. the when proved by prior to created and used: gram discussing Court was District the When excluding, the Court it was evidence what argu- mistaken a clever but Seizing on after the motion opinion in its said defendants, majority sug- the by the reconsideration: passages quoted despite that all gests pro- the Government
The evidence above, flatly did not the District Court , to the offenses utterly unrelated poses is the earlier about prohibit all evidence prior bad charged. Those are which Ma- manually altered bills. See scheme of com- nothing do with the to have acts n. and 237 n. 6. The jority Op. at 235 bills, they programming. puter by the endorsed argument, defendants’ earth- nothing to do with the District Court majority, California once they temporally are not quake program, purported that its switched so decision continuous; they involve different the District evidentiary grounds, rest on counts The six companies. insurance allowed one compromise, struck a Court computer adjustment automatic involve about the year’s worth of evidence manual- process legitimacy The bills. other, bills, earlier ly altered case. in the is the issue not all years still did foreclose discussion added). (emphasis All of these at business. Supp.App. of the defendants’ maintain, points, the indicate defendants that at points also out government prohibit not District Cоurt did “All counts judge said: six trial the district forward government going from with alleges acts the Government relate to single covering scheme prosecution con- 1995. in 1994 and violated indictment, and period described in relating to conduct other that acts cludes ruling did not hence Court’s in those in the indictment alleged than that effectively dismiss the indictment. do not other acts that" years constitute fraud mail violations demonstrate the ma- The reason defendants Like the at 176. statement App. statute.” in- maintain that the District Court jority second District Court’s quoted year’s about one permit tended to evidence strong- at trial also this statement opinion, bills, not- manually altered worth of the government’s contention ly supports lan- emphatic withstanding Court’s sought preclude that the District Court above, is that several guage quoted manually altered all evidence about response opinion the Court’s places bills. for reconsidera- government’s motion “during barring evidence tion it was
Moreover, government asked said when SuppApp. to 1992.” period about her observa- trial its first witness at added). The references (emphasis finan- began having that the company tion one appear give give “1992” fails to its reasons for its exercise of bills, the manual year of evidence about discretion under Rule and the court’s because, notes,-the majority opinion as the record, reasons are not apparent from the initiated until gooser program was we are unable to conduct meaningful By February comparison, before review and do not defer to the district . government’s motion for reconsidera- court’s determination Becker v. ARCO tion, the first order Court’s referred to the Co., (3d Chemical 207 F.3d Cir. period where the evidence would be ex- 2000); Sriyuth, United States v. covering February cluded as 1989 to (3d Cir.1996); 749 n. 9 United States correctly capture did the end of the v. Himelwright, 42 F.3d Cir. period alleges when the indictment 1994). manually bills were altered. Another reason to believe that the refer- fop There are number of reasons be- *24 ence to 1992 was error is that in a lieving that the District Court’s several number of places opinion the Court’s cop- merely references to 1992 were a scriven- ied language from defendant Habina’s First, er’s error. the use of 1992 is incom brief, and, happens, as it that brief mistak- why sistent with the explanation Court’s enly referred to the period manually way it was it ruling namely the that it did-— altered bills as covering 1989 to 1992. Giv- manually believed the altered bills could en these doubting reasons for that properly be included the fraudulent District Court intended to write “1992” passages quoted scheme. Given the earli- “1994”, rather than reasons that the ma- er, directly one of which comes from the addresses, jority never the majority’s reb- opinion, denying gov- Court’s second anee on the 1992 in defending date reconsideration, ernment’s motion for District Court’s ruling excluding as not all defendants’ majority’s theory that the evidénce about manually changed bills District Court meant to write “1992” is difficult to understand. Under the cir- inexplicable leaves the fact that the Court cumstances, I would think' that the most why never discussed it purportedly was claim, majority if any- could it believes having change midway of heart through thing of rides on the 1992 consequence opinion allowing roúghly its second date, is that a remand to the District year one manually evidence about the Court for clarification is in order. Cer- Why altеred bills. any allow of-the evi- tainly the evidence calls for more than a dence, given why the Court’s views? And flip needing “telepathic pow- reference to permit the roughly year one of evidence interpret ers” to the District Court’s ac- majority say that the and defendants Majority tions. Op. See fn. 5 at’235. The Court allowed? There was nothing partic- majority’s engage failure to the evidence ularly unique span. about that time Given apparently flows from its refusal to ac- line, proposed arbitrariness of that it is Scott, Smalis, knowledge cases like Mar- expect reasonable to that the Court would Maker, Ember, tin Linen . Supply, give explanation some for this from change which holds that the name a District Court opinion earlier and from other lan- gives to its ruling does not control. guage in opinion. espe- its second This is event, cially Court, any But in I given so that the District believe that whether point which made a stressing the sub- Court intended to write “1992” stantial given rulings deference to its un- “1994” is irrelevant. The fact remains or undoubtedly der Rule erroneously District Court be- aware we have held that when district court lieved that the fraudulent alleged scheme him in the trial against the proceedings and as a improper indictment
in the
finding by a court or
any
without
govern-
court
erroneously precluded
result
Scott,
about
or innocence.”
jury
guilt
evidence
as to his
presenting
fraudulent
period
437 U.S.
98 S.Ct.
very
crucial
It real-
in the indictment.
alleged
scheme
majority attempts
distinguish
whether the ban on man-
matter
ly doesn’t
First,
grounds.
Lee on two
Scott and
extends
ually altered bills
is in fact
majority says
appeal
scenario the District
either
for under
States,
v. United
controlled
Sanabria
indictment
chаnged the
improperly
motions. The practical-
ly invites defendants to wait the eve until
of trial and file motions to redact the in- they
dictment when what wish to achieve
ais reworking dismissal substantial
the indictment government’s to make the
case impossible prove.
It telling only authority is also majority has for its hard fast rule
of what constitutes “consent” is case
where the defendant never mo- filed