United States v. LeichterUnited States v. Leichter
Defendants Lee H. Leichter, David W. Prigmore, and John F. Cvinar, former employees of C.R. Bard, Inc. (“Bard”), who were charged in a multi-count indictment arising from Bard’s manufacturing and distribution of heart catheters, appeal their convictions on one count each of conspiring to defraud the Food and Drug Administration (“FDA”) by impairing its lawful governmental functions. They were each sentenced to 18 months of imprisonment and two years of supervised release. However, the execution of their sentences was stayed pending the outcome of appeal. Appellants contend that, at this time, we laek appellate jurisdiction to consider their appeal. We find that the existence of other untried counts against the appellants renders the district court’s judgment on the conspiracy count non-final. Accordingly, we dismiss this matter without prejudice to any subsequent appeal upon entry of final judgment by the district court.
I. BACKGROUND
Appellants Leichter, Prigmore, and Cvinar (and other defendants) were indicted on over 390 counts stemming from Bard’s manufacture and sale of non-FDA-approved heart catheters.
1
Count One of the indictment charged appellants with conspiring to defraud the government in violation of
On April 4, 1997, appellants filed a motion requesting that this court remand the matter to the district court, alleging that no final judgment had entered inasmuch as numerous other untried counts remained pending. On May 6, 1997, this court dismissed the matter without prejudice to appeal upon the entry of final judgment. In response, the government filed a motion to reconsider, arguing that, when the district court, on its own initiative, proceeded to trial on only the conspiracy count, the court, in effect, severed that count from the other charges, and thus created a separately appealable case. On September 18, 1997, this court withdrew its May 6 dismissal order, and allowed the parties to brief the merits of their ease on appeal. However, the jurisdictional issue re
II. DISCUSSION
The jurisdiction of this court is limited to “alljfcai
decisions
of the district courts of the United States....”
However, “a criminal judgment involving multiple counts is not final and ap-pealable unless the record discloses the precise disposition (e.g., the sentence) for each count.”
United States v. Luciano-Mosquera,
The government contends that, when the district court judge decided to conduct a separate trial on Count One, he severed that count from the remaining counts pursuant to
The power to order separate trials “rests within the broad discretion of the District Court as an aspect -of its inherent right and duty to manage its own calendar.”
United States v. Gay,
The government’s argument based on
But there is a second and more fundamental reason why
The truth is that neither
In our view, two objectives are important: first, preserving the district judge’s flexibility to manage litigation, reserving a trial court’s authority (subject always to appropriate review) to sever a single case into two cases or to take lesser steps such as retaining a single ease but ordering two trials. The other objective, in our view, is to provide the clearest possible notice to litigants (and to the appellate court) as to whether there has been a severance into two eases, notice that is especially important because of the time limits that require an appeal to be taken within a fixed period of time.
With this latter concern in mind, we think that where a matter originated as one case, normally it should be treated as two cases only where the district court has made clear its intention to sever the case into two cases. In the present instance, there was no formal severance; there was no indication that separate dockets were established for the separately tried counts; and the trial judge indicated his doubt as to whether the judgment on the first count alone could be appealed. Under these circumstances — unless sentence has been executed — we conclude that no appeal can be taken on the first count until all counts have been tried and sentenced. 5
There is nothing in this view that is inconsistent with
United States v. Powell,
The government also cites several cases in which appeals courts have assumed jurisdiction although less than all counts had been resolved.
See, e.g., United States v. Bay State Ambulance Hosp. Rental Serv., Inc.,
It is important to note that the district has stayed the execution of appellants’ sentences for the Count One conviction. “The insistence on final disposition of all counts ... is reasonable unless an attempt is made to enforce the sentence on the counts that have been finally resolved.” 15B Wright, Miller, Cooper, Federal Practice and Procedure § 3918.7, at 537 (2d ed.1992). Otherwise, “[ijmmediate appeal must be allowed before a partial sentence can be executed.” Id. Here, we do not confront a situation in which appellants are languishing in jail awaiting trial on the remaining counts. According, we hold that we presently lack appellate jurisdiction to consider this appeal.
III. CONCLUSION
For the foregoing reasons, we dismiss this appeal without prejudice to subsequent appeal upon disposition of all pending counts.
I disagree that in these circumstances no “severance” has occurred. It seems to me that the district court’s ordering of a separate trial of the conspiracy counts while leaving the plethora of other counts untried and in limbo (with no plans or agreement as to their future disposition) constituted a de fac-to severance of the former. As would be true in a severed case, I believe the final judgment on the tried counts is immediately appealable.
See United States v. Powell,
My colleagues would depend upon the label used or not used by the district judge to decide whether there was a severance, holding there is none unless the judge specifically so announces. On the present facts, this approach has the practical effect of enabling the district judge to do what the law otherwise would not allow — namely, to put the government in a position where it will likely have to drop all the remaining counts. For, assuming the judge continues not to execute the currently imposed sentences, a stalemate will exist that the government can break only by seeking dismissal of all the remaining untried counts.
My colleagues say, perhaps tongue in cheek, “[tjhere is nothing preventing the government from proceeding on the remaining counts,” see note 5; but the practical implications of so doing, where a trial followed by conviction has just been concluded on the conspiracy counts, makes that course implausible. Trying the remaining counts now would be at odds with the rationale for originally separating the counts. Another trial would be wasteful and futile so long as the possibility exists that the convictions under the already tried counts will be affirmed on appeal, perhaps rendering further proceedings unnecessary from the government’s perspective.
The most practical alternative, under this court’s ruling, is for the government to drop all the remaining counts. This will permit the appellate process to occur and the current sentence to take effect if the judgment is affirmed. Defendants’ guilt or innocence will thus stand or fall on the outcome of that appeal, and the government will have permanently surrendered the ability to utilize the
I fully accept that, when multiple counts are prosecuted together, they may sometimes be best treated as a single unit for appeal. See 15B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3918.7, at 536-37 (2d ed.1992) (where prosecution of a multi-count indictment proceeds together, “[t]he insistence on final disposition of all counts, treating the entire prosecution as a single judicial unit, is reasonable....”). (This approach, of course, is contingent upon the postponement of the sentences already imposed on some of the counts, so that defendants are not languishing in jail. My colleagues agree that if a sentence, once imposed, is executed, an immediate appeal must be allowed, even if unsentenced counts remain.)
But while the above principle (i.e. treating all counts as a unit for appeal) has been accepted in appropriate circumstances, it is also clear that — unlike the situation on the civil side — there can be no general principle in a criminal ease that all counts be disposed of before appeal.
Compare
Here, I believe my colleagues push too far with what is the occasional exception in the criminal sphere to the usual rule that a sentence forms an immediately appealable judgment. This is not a case where the un-sentenced counts were treated prior to sentencing in a unitary fashion with the tried counts. The remaining counts here were, in fact, never set for trial. No plan or agreement exists even now for their disposition. To postpone the appeal on the tried counts until action is taken on the remainder serves no purpose other than to unfairly penalize the government, since no action on such counts prior to appeal is really contemplated. To be sure, defendants are not in jail; they are, indeed, happy, since my colleagues’ analysis, which defendants entirely support, will likely pressure the government to drop all the remaining counts against them. What the majority’s holding accomplishes is to erode the government’s rightful power to retain the remaining counts as an anchor to windward or for whatever other purpose. The court’s analysis is predicated on what seems to me an unreal distinction between an express severance and what was, in every functional respect, a severance in fact, i.e., the entirely separate disposition through trial and sentencing of the conspiracy counts. I would hold that actions speak louder than words — a severance has in fact occurred, and the right to appeal applicable to counts severed under
Notes
. At the times relevant to the charged offenses, Prigmore was a Group Executive Vice-President of Bard, with responsibility for the company's United States Catheter and Instrument, Inc. ("USCI”) division. Cvinar was President of USCI, and Leichter was USCI’s Director of Regulatory Affairs and Quality Assurance. The other defendants, Kenneth G. Thurston and Janice T. Piasecki, were acquitted after trial on the first count, and all other counts against them were eventually dismissed.
. The rule provides in pertinent part:
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires ....
. Court: ... It is a relatively simple case: Did they change [the catheter] in a way they shouldn’t have, and the fact that there are 350 counts is a yawn to me. That is why I am making it a one-count case.... You have a conspiracy. If [the government] doesn’t get the conspiracy — in other words, they have to take a rifle shot, and put it right between your eyes. Otherwise they miss. And that is the end of it. Transcript of Hearing, April 5, 1995, at p. 3.
Court: It is only going to be on Count 1.... [Those other counts] never may be taken up. In other words, my prediction is that, if the government does not succeed on the conspiracy, I’d be very surprised if they — and I haven’t talked to [the government's attorney] about it, naturally — but he is not that way. I think if he misses on this, then that will probably be the end. On the other hand, if he hits, that will probably be the end of it too.
Transcript of Hearing, April 5, 1995, at p. 13.
Court: ... As I recall it, it was all my idea to just do one count, and there was really, I don't think, any objection from either party. I think there was equal silence in the face of the suggestion.... I thought that Count 1 would do it, and that, in other words, I thought that the government probably would go along with Count 1. But, in fairness, there was no specific agreement to that. And I don’t think that my speculation on the subject is controlling, nor do I think it bars the government from trying the other counts, if indeed, they want to trythem. I don't think there is appellate jurisdiction, but that is out of my salary bracket.
Transcript of Hearing, September 25, 1996, at pp. 1-2 (hearing after trial on Count One).
. Severance is “only one remedy — and certainly the most extreme — in the federal courts’ remedial aresenal."
United States v. Neal,
. We think the dissent is mistaken when it argues that this approach "has the practical effect of enabling the district judge to do what the law otherwise would not allow' — namely, to put the government in a position where it will likely have to drop all the remaining counts.” Infra at 37. There is nothing preventing the government from proceeding on the remaining counts.
. Under