United States v. Prigmore

• Court: Court of Appeals for the First Circuit
• Decided: November 4, 1998
• Docket: 97-1358
• Status: Published

Opinion

USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit

                       ____________________


No. 97-1358



                          UNITED STATES,

                            Appellee,



                                v.



                         LEE H. LEICHTER,

                      Defendant, Appellant.



                       ____________________



No. 97-1359



                          UNITED STATES,

                            Appellee,



                                v.



                         JOHN F. CVINAR,

                      Defendant, Appellant.



                       ____________________



No. 97-1478



                          UNITED STATES,

                            Appellee,



                                v.



                        DAVID W. PRIGMORE,

                      Defendant, Appellant.



                       ____________________



          APPEALS FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



           [Hon. Joseph L. Tauro, U.S. District Judge]



                       ____________________                              Before



                     Torruella, Chief Judge,



                 Campbell, Senior Circuit Judge,



                    and Boudin, Circuit Judge.



                      _____________________



    Richard G. Taranto, with whom Farr & Taranto, Robert D. Keefe,

Daniel W. Halston, Jason T. Sherwood, Hale and Dorr LLP, Andrew

Good, Harvey A. Silverglate, Silverglate & Good, William H.

Kettlewell, Amy Baron-Evans, Michael B. Galvin and Dwyer & Collora,

LLP were on brief, for appellants.

    Stephen Andrew Higginson, Special Assistant United States

Attorney, with whom Mark W. Pearlstein, Acting United States

Attorney, and Michael Loucks, Assistant United States Attorney,

were on brief, for appellee.


____________________



                        November 3, 1998

                       ____________________          TORRUELLA, Chief Judge.  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 lack

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.  Count

One of the indictment charged appellants with conspiring to defraud

the government in violation of 18 U.S.C.  371 through an allegedly

fraudulent scheme involving the sale of adulterated heart catheters

and the concealment of material facts from the FDA.  The district

court sua sponte decided to proceed to trial against appellants

only as to Count One, deferring further proceedings on the

remaining counts.  After two months of trial, a jury returned a

verdict finding appellants guilty of the conspiracy count.  The

district court sentenced each appellant to 18 months of

imprisonment and two years of supervised release, and imposed a

special assessment of $50 for each conviction.  The execution of

the sentences have been stayed pending the outcome of appeal, and

none of the appellants is now in prison.  Following appellants'

conviction on the first count, the government dismissed all but 38

of the other counts against them.  On March 13, 1997, the district

court entered judgment on the Count One conviction.  Shortly

thereafter, appellants filed timely notices of appeal to preserve

their right of appeal.

     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 case on appeal.  However, the

jurisdictional issue remains a threshold question, which we now

address below.

                        II.  DISCUSSION

     The jurisdiction of this court is limited to "all final

decisions of the district courts of the United States . . . ."  28

U.S.C.  1291 (emphasis added).  "This requirement of finality is

particularly strict in criminal proceedings because the disruption

and delay caused by interlocutory appeals 'are especially inimical

to the effective and fair administration of the criminal law.'" 

United States v. Sorren, 605 F.2d 1211, 1213 (1st Cir. 1979)

(quoting Abney v. United States, 431 U.S. 651, 657 (1977)).  "Final

judgment in a criminal case means sentence.  The sentence is the

judgment."  Berman v. United States, 302 U.S. 211, 212 (1937).  

     However, "a criminal judgment involving multiple counts

is not final and appealable unless the record discloses the precise

disposition (e.g., the sentence) for each count."  United States v.

Luciano-Mosquera, 63 F.3d 1142, 1148 n.2 (1st Cir. 1995), cert.

denied, 116 S. Ct. 1879 (1996); see also United States v. Wilson,

440 F.2d 1103, 1104 (5th Cir. 1971) ("when a multi-count indictment

and verdict are involved, it is essential for post-conviction

review that the record disclose the precise sentence for each

count"); 15B Charles Alan Wright, Arthur R. Miller, & Edward H.

Cooper, Federal Practice and Procedure  3918.7, at 536-37 (2d ed. 

1992) ("if sentence is imposed on some counts, but the court

expressly defers imposition of sentence on other counts, there is

no final judgment").  Thus, we agree with appellants that we

currently lack appellate jurisdiction due to the presence of 38

untried counts, which precludes the issuance of a final judgment

against them.  Ultimately, we prefer to view a final judgment as

one disposing of all counts or claims with respect to all parties.

     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 Fed. R. Crim. P.

14.  Thus, according to the government, the district court created

a separately appealable criminal case.  By urging us to hear this

appeal now, the government, at bottom, is attempting to preserve

its remaining counts in case of reversal on the first count without

being forced to try those counts now.

     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,

567 F.2d 916, 919 (9th Cir. 1978).  The record reflects that the

district court, on its own initiative, ordered a separate trial on

Count One for case management reasons. As the hearing transcript

shows, the district court judge separated Count One from the other

counts because he assumed, albeit incorrectly, that, whatever the

outcome of the trial on that count, the government would dismiss

the remaining counts.  We believe that the district court did not

abuse its discretion in following such a course under its case

management authority, nor does the government claim abuse.

          The government's argument based on Rule 14 is doubly

mistaken.  First, the district judge did not rely upon Rule 14, see

infra, but on its separate case management authority.  Nor is there

any reason to think that Rule 14 was applicable in this case: there

was no claim by either side, nor any finding by the judge, that

either the defendant or government would be "prejudiced" by

joinder.  Not every trial management decision is designed to avoid

prejudice.

          But there is a second and more fundamental reason why

Rule 14 is irrelevant.  Rule 14 refers to "severance" but also to

"whatever relief justice requires."  While the separation of

defendants, or less often counts, into two separate cases is a form

of relief commonly granted under Rule 14, nothing in the rule says

or means that every action taken under Rule 14 to remedy prejudice

necessarily involves the separation of a case into two separate

cases.  Such a separation is merely one form of permissible relief

and that relief was not granted in this case.

     The truth is that neither Rule 14 or any other Federal

Rule of Criminal Procedure directly addresses the question of when

a criminal matter comprises a separate appealable unit.  When

making such determinations, the courts have relied essentially on

policy and precedent.  The prevailing practice has been to treat

"the case" as the basic unit for an appeal.  The question of when

a case has been separated into "two cases," each separately

appealable, depends upon the circumstances.  

     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 case 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 cases, 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.

     There is nothing in this view that is inconsistent with

United States v. Powell, 24 F.3d 28, 30-31 (9th Cir. 1994), relied

upon by the government.  That case effectively held that when a

severance occurs under Rule 14, each conviction on the separate

count should be separately appealable upon the imposition of

sentence.  See id. at 30.  In this case, the question is whether a

severance creating two cases has occurred and we find, for the

reasons indicated, that it has not.

     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., 874 F.2d 20, 22 (1st Cir. 1989) (appeal

of conviction on some counts, even though jury also hung on another

count); United States v. Richardson, 817 F.2d 886, 887 (D.C. Cir.

1987) (same); United States v. Levasseur, 816 F.2d 37, 45 (2d Cir.

1987) (appeal of conviction on some counts, even though other

counts remained untried).  However, these courts failed to comment

on the jurisdictional issue.  Thus, we find them to be far from

compelling.  For instance, this court's Bay State decision is

silent as to the status of the disposition of the hung count. 

Perhaps the government dismissed the hung count prior to appeal,

mooting the jurisdictional issue.  In the alternative, the Bay

State panel may not have detected a jurisdictional problem despite

the existence of the hung count.  In any event, the Bay Statecourt's grounds for assuming appellate jurisdiction are not

apparent from the opinion, and it remains unpersuasive precedent on

this issue.

     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, "[i]mmediate 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.


"Dissent follows"  CAMPBELL, Senior Circuit Judge (dissenting).  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 facto 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, 24 F.3d 28, 30-31 (9th Cir. 1994).

  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, "[t]here 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 other counts should the appeal succeed (or

for any other reason).  This court's ruling, therefore, has the

effect of compelling or, at least, strongly pressuring the

government to dismiss counts, an authority the courts by themselves

do not possess.

     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 case

that all counts be disposed of before appeal.  Compare Fed. R. Civ.

P. 54(b).  Such a rule could not work in cases where the imposed

sentence is executed, supra, and   even without execution   might

be inappropriate in some other cases given the chilling effect of

an unexecuted sentence.  Hence it is only in some criminal cases

that, after imposition of sentence on one or more counts, an

immediate appeal will be disallowed.  As the majority properly

notes, the established general rule in criminal cases is that,

"[t]he sentence is the judgment."    

     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 unsentenced 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 Fed. R. Crim. P. 14 should apply here.