United States v. Carroll Leppo, United States of America v. Leppo, Carroll, 634 F.2d 101, 3rd Cir. (1980)
United States v. Carroll Leppo, United States of America v. Leppo, Carroll, 634 F.2d 101, 3rd Cir. (1980)
2d 101
I.
2
Judge Muir rejected the motion to dismiss as dilatory and frivolous, and
ordered the case to remain on the trial calendar. The court concluded that the
motion was dilatory because Leppo waited more than six weeks after the
mistrial was granted before moving for dismissal. United States v. Leppo,
Crim. No. 80-00034, order at 2 (M.D.Pa. August 22, 1980). In the interim,
Leppo had requested and the trial court had granted a one month postponement
of his trial. Judge Muir found that Leppo's unexplained delay indicated "a
desire on (his) part to postpone as long as possible his trial." Id. Leppo's motion
was frivolous, the court concluded, because in its view Agent Cryan's comment
about Leppo's refusal to answer certain questions was inadvertent and not the
result of bad faith, reckless, or grossly negligent conduct. Id. Moreover, the
court determined that the asserted damage could have been avoided by a proper
objection because "virtually identical testimony was given during a suppression
hearing...." Id. at 3.
The defendant filed a petition for Writ of Mandamus or Prohibition at No. 802225, and a motion for a stay of the district court's proceeding pending his
appeal at No. 80-2277. We denied both by order on September 2, 1980. This
opinion explains our action.
II.
We agree with the district court that Leppo's motion to dismiss was both
dilatory and frivolous. Trial counsel cannot sit back in a suppression hearing
and allow damaging testimony against a defendant to be elicited without
objection, and then impugn bad faith motives to the government for introducing
the same testimony a few days later at trial. Trial strategies being what they are,
we cannot find prosecutorial misconduct when defense counsel elects not to
challenge testimony at a suppression hearing and then attempts to build a
double jeopardy case by obtaining a mistrial because the same testimony is
introduced into evidence.
III.
7
The question presented here requires us to balance on one hand the principles
underlying both Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52
L.Ed.2d 651 (1977), and the usual rule that a trial court is divested of
jurisdiction over a case when a notice of appeal is filed, against the public
policy favoring the rapid disposition of criminal cases, recently expressed by
Congress in the Speedy Trial Act, 18 U.S.C. 3161-3174. On a less abstract
level, it requires us to decide whether a defendant in a criminal case can delay
his trial for an extended period by means of a dilatory and frivolous appeal.
In Abney, the Supreme Court held that the denial of a motion to dismiss on
grounds of double jeopardy is an appealable final order for purposes of 28
U.S.C. 1291(a), under the collateral order exception announced in Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528
(1949). The reason compelling the decision was that the right protected by the
double jeopardy clause includes the right not to be twice put to trial for the
same offense. Absent a provision for an immediate appeal, the right would be
forever lost, regardless of the outcome of the trial. 431 U.S. at 660-61, 97 S.Ct.
at 2040-41.
9
The Abney decision had the effect of providing criminal defendants with an
effective new tool for delaying their trials for long periods of time. An Abney
appeal delays trial because ordinarily the trial court loses its power to proceed
once a party files a notice of appeal. See Hovey v. McDonald, 109 U.S. 150,
157, 3 S.Ct. 136, 140, 27 L.Ed. 888 (1883); SEC v. Investors Security Corp.,
560 F.2d 561, 568 (3d Cir. 1977); United States v. Lafko, 520 F.2d 622, 627
(3d Cir. 1975); Plant Economy, Inc. v. Mirror Insulation Co., 308 F.2d 275,
276-77 (3d Cir. 1962), overruled on other grounds, Torockio v. Chamberlain
Manufacturing Co., 456 F.2d 1084, 1087 (3d Cir. 1972). This rule is not based
on statutory provisions or the rules of procedure. Rather, it is a judge-made rule
designed to avoid confusion or waste of time that might flow from putting the
same issues before two courts at the same time. As Professor Moore has
observed, the rule "should not be employed to defeat its purpose or to induce
needless paper shuffling." 9 J. Moore, Federal Practice P 203.11 at 3-44 n.1
(1980); see C. Wright, A. Miller, E. Cooper, & E. Gressman, Federal Practice
and Procedure 3949, at 358-59 (1977).
10
11
Prior to United States v. Dunbar, the Fifth Circuit had decided that the notice of
appeal from a nonappealable order does not render void for lack of jurisdiction
acts of the district court performed during the interval between the filing of the
notice and the dismissal of the appeal. United States v. Hitchmon, 602 F.2d
689, 691 (5th Cir. 1979) (in banc). In rejecting its former mechanical
application of the divestiture of jurisdiction rule, the court reasoned that "the
contrary rule leaves the court powerless to prevent intentional dilatory tactics,
We agree that the need for a "reasoned choice" is present here, and we accept
the analysis of the Fifth Circuit in Dunbar :
13 the one hand, the Court must recognize that the failure to review a colorable
On
double jeopardy claim before trial begins creates a substantial risk that the accused's
constitutional rights will be infringed. On the other hand, we must weigh the
concern expressed in Hitchmon, that the divestiture of jurisdiction rule
14
leaves
the court powerless to prevent intentional dilatory tactics, forecloses without
remedy the nonappealing party's right to continuing trial court jurisdiction, and
inhibits the smooth and efficient functioning of the judicial process.
(Hitchmon,) 602 F.2d at 694.
15
16
611 F.2d at 988. The facts here are indicative of the great potential for
disruption if, when confronted with a frivolous double jeopardy motion, we did
not permit the district court to retain jurisdiction.3
17
U.S.C. 1651.4 See Dunbar, 611 F.2d at 989. Petitioner has used these
procedures here, demonstrating their viability. At the same time, this decision
gives effect to the important public policy favoring expeditious criminal justice.
18
The Petition for Writ of Mandamus or Prohibition at No. 80-2225 and the
motion for stay of proceedings pending appeal at No. 80-2227 having been
denied by order dated September 2, 1980, we set forth the foregoing as the
reason for our decision.