890 F.2d 878 | 7th Cir. | 1989
Lead Opinion
Victor Kalinowski appeals from convictions for knowingly shipping in interstate and foreign commerce magazines depicting minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(1) and for knowingly receiving visual depictions of minors engaging in sexually explicit conduct, that had been transported and shipped in interstate and foreign commerce, in violation of 18 U.S.C. § 2252(a)(2). Because the judgment of the district court is non-final, we dismiss the appeal for want of appellate jurisdiction.
In the spring of 1987 the United States Customs Service (Customs), in conjunction with the Canadian Customs Service, instituted an undercover child pornography operation that was code named “Operation
Upon receiving Kalinowski’s order in Canada, Canadian Customs forwarded the material to U.S. Customs Agent John O’Malley in Chicago. O’Malley then assembled the photos Kalinowski ordered from Customs’ stock of previously seized child pornography. The child pornography was hand delivered to Ottawa, Canada and given to DHL Couriers. DHL, in turn, transported the package to its central station in Rosemont, Illinois. Agent O’Malley received the envelope containing the child pornography from this location and a warrant was then obtained on June 12, 1987, permitting a search of Kalinowski’s home after the child pornography was delivered. On June 13, 1987, a Customs agent, disguised as a DHL delivery person, delivered the child pornography to Kalinowski’s residence. Approximately fifteen minutes after this delivery, the search warrant was executed. Numerous items of child pornography were seized, including those the government had delivered a few minutes previously.
Before trial the district court expressed some doubt about the validity of the count of the original indictment that charged Kal-inowski with causing child pornography to be shipped in interstate and foreign commerce in violation of 18 U.S.C. § 2252(a)(1). The district court entered a pre-trial memorandum order on December 1, 1987, requesting the government to explain why it should not dismiss this count. The court’s position was that 18 U.S.C. § 2252(a)(1), unlike similar statutes proscribing mail fraud and wire fraud, did not specifically “criminalize[ ] the act of ‘causing’ such materials to be transported or shipped, as opposed to the actual acts of transportation and shipping themselves.” The court also noted that this count and the count in the same indictment charging Kalinowski with receipt of these materials would criminalize the same conduct in two different ways. On December 4, 1987, the grand jury returned a superseding indictment that included a count (count 3) charging Kalinow-ski with violating both 18 U.S.C. §§ 2252(a)(1) and 2(b) when he caused the child pornography to be sent.
Following a jury trial held on July 11-14, 1988, Kalinowski was found guilty of both count 3 (causing child pornography to be shipped in interstate and foreign commerce
Seven days later, on October 5, 1988, the Government moved for the court to “(1) reconsider its ruling that the defendant was not subject to multiple sentences for his separate convictions under Title 18, United States Code, Sections 2252(a)(1) and 2252(a)(2) and (2) for correction of an illegal sentence imposed on Count Four....” On October 7,1988, two days after the Government had filed its post-judgment motions, Kalinowski filed a notice of appeal of the district court’s September 28, 1988, judgment and sentence. The district court has not to date ruled upon the Government’s post-judgment motions.
II
“In the Judiciary Act of 1789, 1 Stat. 73, the first Congress established the principle that only ‘final judgments and decrees’ of the federal district courts may be reviewed on appeal.’ Id. at 84.” Midland Asphalt Corp. v. United States, — U.S. -, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989). Thus, in determining whether we have appellate jurisdiction, we must consider whether either of the Government’s October 5, 1988 motions affected the finality of the district court’s September 28, 1988, judgment.
We turn initially to the Government’s motion for reconsideration of the district court’s failure to impose a sentence on Kalinowski’s conviction for causing child pornography to be shipped in interstate and foreign commerce in violation of 18 U.S.C. § 2252(a)(1) as charged in count 3 of the indictment. In United States v. Healy, 376 U.S. 75, 77-78, 84 S.Ct. 553, 555, 11 L.Ed.2d 527 (1964), the Supreme Court was faced with the question of “whether in a criminal case a timely petition for rehearing by the Government filed within the permissible time for appeal renders the judgment not final for purposes of appeal until the court disposes of the petition....” The Court determined that a Government filed rehearing petition did render the district court’s judgment non-final, id. at 78-80, 84 S.Ct. at 555-57, and supported its ruling with the following rationale: “Of course speedy disposition of criminal cases is desirable, but to deprive the Government of the opportunity to petition a lower court for the correction of errors might in some circumstances actually prolong the process of litigation— since plenary consideration of a question of law here ordinarily consumes more time than disposition of a petition for rehearing — and could, in some cases, impose an added and unnecessary burden of adjudication upon this Court.” Id. at 80, 84 S.Ct. at 556.
In United States v. Dieter, 429 U.S. 6, 7-9, 97 S.Ct. 18, 19-20, 50 L.Ed.2d 8 (1976)
In United States v. Gargano, 826 F.2d 610, 611-12 (7th Cir.1987), we specifically applied Dieter and Healy in concluding that a motion for reconsideration in a criminal ease filed during the time for appeal of a district court judgment or order tolls the time for appeal and divests the court of appeals of jurisdiction over an appeal during the pendency of the motion to reconsider, even when the appeal was filed prior to the motion to reconsider. We stated:
“The next question is the effect of Gargano’s motion for reconsideration on the appeal from the denial of his motion under Rule 35. The procedure for handling Rule 35 motions is governed by the Federal Rules of Criminal Procedure, and although those rules contain no provision for motions to reconsider, the Supreme Court has held that a motion for reconsideration may be filed in a criminal case and that if filed within the time allowed for an appeal it tolls the time for appealing, just like a timely motion under Rule 59(e) [of the Federal Rules of Civil Procedure]. United States v. Healy, 376 U.S. 75, 77-80, 84 S.Ct. 553, 554-56, 11 L.Ed.2d 527 (1964); see also United States v. Dieter, 429 U.S. 6, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976) (per curiam); Nilson Van & Storage Co. v. Marsh, 755 F.2d 362, 364 (4th Cir.1985); cf. In re X-Cel Inc., 823 F.2d 192, 193 (7th Cir.1987). Gargano had 10 days to appeal from the denial of his Rule 35 motion, see Fed.R. App.P. 4(b), and he filed his motion for reconsideration within that time. Therefore, the time for appeal was tolled.”
826 F.2d at 611-12.
Applying Healy, Dieter and Gargano to our case, we note that the government’s motion for reconsideration was filed within the time for its appeal of the district court’s post-trial dismissal of count 3 that had alleged a violation of 18 U.S.C. § 2252(a)(1).
On the basis of much the same analysis, we must also conclude that the government’s motion for reduction of illegal sentence, directed to the sentence imposed pursuant to Kalinowski’s conviction on count 4 for receiving child pornography that had been shipped in interstate and foreign commerce in violation of 18 U.S.C. § 2252(a)(2), deprived us of appellate jurisdiction. Like the Government’s motion to reconsider, its motion to correct an illegal sentence under the version of Rule 35 of the Federal Rules of Criminal Procedure applicable to convictions for conduct occurring prior to November 1, 1987, in the words of the Supreme Court in Dieter, sought to “ ‘reconsider [a] question decided in the case’ in order to effect an ‘alteration of the rights adjudicated.’ ” Dieter, 429 U.S. at 9, 97 S.Ct. at 20 (quoting Department of Banking v. Pink, 317 U.S. 264, 266, 63 S.Ct. 233, 234, 87 L.Ed. 254 (1942)). Accordingly, under Dieter, Healy and Gargano, this motion deprived us of appellate jurisdiction until it was determined by the district court. Because the district court has not ruled upon this motion, its pendency provides a second basis upon which we lack jurisdiction over Kalinowski’s appeal.
This court lacks jurisdiction to proceed with Kalinowski’s appeal as a result of the district court’s failure to rule on the government’s two motions pending in the trial court. After the district court has entered a final judgment after ruling on the two pending motions, the defendant Kalinowski and/or the government may wish to proceed again with an appeal with the filing of a proper notice of appeal. When the appropriate notice of appeal is filed, the case will then be reviewed by this present panel on the current briefs and on any other basis which may be raised by appropriate parties.
DISMISSED.
. 18 U.S.C. § 2(b) provides that:
“Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal,"
. Count 3, as noted above, alleged that Kalinow-ski violated 18 U.S.C. §§ 2252(a)(1) and 2(b) in causing child pornography to be shipped in interstate and foreign commerce. Count 4 alleged that Kalinowski violated 18 U.S.C. § 2252(a)(2) when he received child pornography shipped in interstate and foreign commerce.
. At oral argument the parties stated that they would file post-argument briefs in response to our questions concerning appellate jurisdiction. We received a brief from the Government on this point, but did not receive a brief from Kalinowski.
. Under 18 U.S.C. § 3731 the United States is permitted to appeal within 30 days from any "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.” Government appeal of a post-verdict dismissal of a count of an indictment, as part of a sentencing determination, is not barred under the double jeopardy clause for several reasons. Initially, the Supreme Court has determined "that neither the history of sentencing practices, nor the pertinent rules of this Court, nor even consideration of double jeopardy policy support ... an equation” between the finality of a jury’s verdict of acquittal and a court's determinations during sentencing. United States v. DiFrancesco, 449 U.S. 117, 132, 101 S.Ct. 426, 434, 66 L.Ed.2d 328 (1980). This reason has special significance in this case, where the district court’s judgment appears, somewhat inconsistently, to enter conviction based upon the jury’s verdict convicting Kali-nowski of count 3 and then, as part of sentencing, dismisses that count. Further, there is clear precedent under the Double Jeopardy Clause supporting a government right to appeal, even from an acquittal, when, as here, the court enters such an order following a jury verdict convicting the defendant. See, e.g., United States v. Greer, 850 F.2d 1447, 1449-50 (11th Cir.1988); United States v. Dixon, 658 F.2d 181, 187-88 (3rd Cir.1981); United States v. Brandon, 633 F.2d 773, 778-79 (9th Cir.1980). The rationale for these decisions is that an appeal from a post-verdict acquittal does not subject the defendant to another prosecution, but merely rein
. The Government’s motion for reconsideration directly involves only count 3 of the indictment that charged ICalinowski with causing the transportation of child pornography in interstate and foreign commerce in violation of 18 U.S.C. § 2252(a)(1). But, this motion precludes consideration of the entire appeal because a defendant may not appeal a single count until final judgment is imposed upon all the counts that were considered together in a single criminal trial. See United States v. Patel, 835 F.2d 708, 709 (7th Cir.1987).
. On the basis of the same analysis found in footnote 5, supra, we lack jurisdiction over the entire appeal during the pendency of the government’s motion to correct illegal sentence, even though his motion was directed solely to the sentence imposed on count 4 that involved a violation of 18 U.S.C. § 2252(a)(2). See Patel, 835 F.2d at 709.
Concurrence Opinion
concurring.
I write only to note that lack of finality does more than prevent an appeal.
In civil eases, the lack of finality of something which appears in form to be a judgment for money prevents execution of the judgment. Redding & Company v. Russwine Construction Corporation, 417 F.2d 721, 727 (D.C.Cir.1969); Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d § 2661.
It seems logical that in criminal cases something which in form is a judgment and sentence on one count, but which is not final because other counts have not been disposed of (U.S. v. Patel, 835 F.2d 708, 709 (7th Cir.1987)) or has become non-final because of the filing of a motion, does not authorize imprisonment of a defendant, col