After respondents, originally indicted on two federal criminal
counts in the Eastern District of Kentucky, obtained a change of
venue to the Central District of California, the Government secured
a superseding indictment which added four new counts. The
Government then obtained a voluntary dismissal of three of the
counts (including one of the original counts), and respondents
moved to dismiss the remaining counts on the ground that the
superseding indictment manifested prosecutorial vindictiveness in
retaliation for their exercising their right to a change of venue,
and thus ran afoul of the rule announced in
Blackledge v.
Perry, 417 U. S. 21. The
District Court denied the motion, but stayed the trial to permit an
appeal. The Court of Appeals held that the denial of the motion to
dismiss was immediately appealable as a "final decision" under 28
U.S.C. § 1291, and that respondents had established a case of
prosecutorial vindictiveness requiring dismissal of the superseding
indictment.
Held: The Court of Appeals was without jurisdiction
under 28 U.S.C. § 1291 to review the District Court's
interlocutory order refusing to dismiss the indictment. The policy
embodied in § 1291 is inimical to piecemeal appellate review
of trial court decisions that do not terminate the litigation, and
this policy is at its strongest in the field of criminal law.
Respondents' claim of prosecutorial vindictiveness does not fall
within the narrow group of claims coming within the "collateral
order" exception to § 1291's rule of finality.
Stack v.
Boyle, 342 U. S. 1;
Abney v. United States, 431 U. S. 651; and
Helstoski v. Meanor, 442 U. S. 500,
distinguished. A claim of prosecutorial vindictiveness does not
meet the test under such exception of being "effectively
unreviewable on appeal from a final judgment."
Coopers &
Lybrand v. Livesay, 437 U. S. 463,
437 U. S. 468.
Cf. United States v. MacDonald, 435 U.
S. 850.
Certiorari granted; 646 F.2d 384, reversed.
PER CURIAM.
Respondents, originally indicted in the Eastern District of
Kentucky on two counts for violations of 18 U.S.C. §§
371
Page 458 U. S. 264
and 545, succeeded in obtaining a change of venue to the Central
District of California. In the latter District, the Government
secured a superseding indictment charging four new substantive
counts of making false statements to customs officers in violation
of 18 U.S.C. § 542, in addition to the two original counts.
The Government then obtained a voluntary dismissal of the original
conspiracy count and two of the false statement counts. Respondents
moved to dismiss the remaining counts on the ground that the
superseding indictment manifested prosecutorial vindictiveness, and
therefore ran afoul of the rule announced in
Blackledge v.
Perry, 417 U. S. 21
(1974). The District Court denied respondents' motion, but stayed
the commencement of trial to permit an appeal. The Court of Appeals
for the Ninth Circuit held
"that the denial of a motion to dismiss based on the ground of
vindictive prosecution is immediately appealable as a final
decision under 28 U.S.C. § 1291."
646 F.2d 384, 386 (1981). [
Footnote 1] In reaching this holding, the Court of Appeals
relied on its prior decisions in
United States v. Burt,
619 F.2d 831 (1980), and
United States v. Griffin, 617
F.2d 1342,
cert. denied, 449 U.S. 863 (1980). Reaching the
merits, the court held that respondents had established a case of
prosecutorial vindictiveness requiring dismissal of the superseding
indictment. The United States then sought review in this Court.
We do not reach the question of prosecutorial vindictiveness,
for we hold that the Court of Appeals was without jurisdiction
under 28 U.S.C. § 1291 to review the District Court's
interlocutory order refusing to dismiss the indictment. Congress
has limited the jurisdiction of the Courts of Appeals to "final
decisions of the district courts."
Page 458 U. S. 265
28 U.S.C. § 1291. This Court has long held that the policy
of Congress embodied in this statute is inimical to piecemeal
appellate review of trial court decisions which do not terminate
the litigation, and that this policy is at its strongest in the
field of criminal law:
"The general principle of federal appellate jurisdiction,
derived from the common law and enacted by the First Congress,
requires that review of nisi prius proceedings await their
termination by final judgment. . . . This insistence on finality
and prohibition of piecemeal review discourage undue litigiousness
and leaden-footed administration of justice, particularly damaging
to the conduct of criminal cases.
See Cobbledick v. United
States, 309 U. S. 323,
309 U. S.
324-326."
DiBella v. United States, 369 U.
S. 121,
369 U. S. 124
(1962). This Court has interpreted the jurisdictional statute to
permit departures from the rule of finality in only a limited
category of cases falling within the "collateral order" exception
delineated in
Cohen v. Beneficial Industrial Loan Corp.,
337 U. S. 541,
337 U. S.
545-547 (1949). Such orders
"must conclusively determine the disputed question, resolve an
important issue completely separate from the merits of the action,
and be effectively unreviewable on appeal from a final
judgment."
Coopers & Lybrand v. Livesay, 437 U.
S. 463,
437 U. S. 468
(1978). In criminal cases, we have adhered to the collateral order
exception to the rule of finality on three occasions: present in
each of these cases were factors noticeably lacking in the instant
appeal.
In
Stack v. Boyle, 342 U. S. 1 (1951),
the Court held that an order denying a motion to reduce bail could
be reviewed before trial. Writing separately, Justice Jackson (the
author of
Cohen) recognized that
"an order fixing bail can be reviewed without halting the main
trial -- its issues are entirely independent of the issues to be
tried -- and unless it can be reviewed before sentence, it never
can be reviewed at all. "
Page 458 U. S. 266
342 U.S. at
342 U. S. 12. In
Abney v. United States, 431 U. S. 651
(1977), we permitted interlocutory appeal of an order denying a
pretrial motion to dismiss an indictment on double jeopardy
grounds. Perhaps most important among the relevant factors, we
recognized that
"the rights conferred on a criminal accused by the Double
Jeopardy Clause would be significantly undermined if appellate
review of double jeopardy claims were postponed until after
conviction and sentence."
Id. at
431 U. S. 660.
One right guaranteed by the Double Jeopardy Clause was the right
not to be tried twice for the same offense.
"[I]f a criminal defendant is to avoid
exposure to
double jeopardy, and thereby enjoy the full protection of the
Clause, his double jeopardy challenge to the indictment must be
reviewable before that subsequent exposure occurs."
Id. at
431 U. S. 662
(emphasis in original). Finally, in
Helstoski v. Meanor,
442 U. S. 500
(1979), we held that a United States Congressman could have taken
an interlocutory appeal in a criminal case to assert the immunity
conferred upon him by the Speech or Debate Clause of the
Constitution. Crucial to the holding was our view that the Speech
or Debate Clause protected Congressmen "
not only from the
consequences of litigation's results, but also from the burden of
defending themselves.'" Id. at 442 U. S. 508,
quoting Dombrowski v. Eastland, 387 U. S.
82, 387 U. S. 85
(1967). The right protected by the Clause would have been lost if
the appeal had been postponed.
Each of these cases, in addition to satisfying the other
requirements of
Cohen, involved "an asserted right the
legal and practical value of which would be destroyed if it were
not vindicated before trial."
United States v. MacDonald,
435 U. S. 850,
435 U. S. 860
(1978). Our holding in
United States v. MacDonald
underscores the significance of this feature. The issue in
MacDonald was whether a defendant could appeal, prior to
trial, a District Court's order denying his motion to dismiss the
indictment because of an alleged violation of his
Page 458 U. S. 267
Sixth Amendment right to a speedy trial. In concluding that such
an appeal was not authorized by 28 U.S.C. § 1291, we
noted:
"There perhaps is some superficial attraction in the argument
that the right to a speedy trial . . . must be vindicated before
trial in order to insure that no nonspeedy trial is ever held. Both
doctrinally and pragmatically, however, this argument fails. Unlike
the protection afforded by the Double Jeopardy Clause, the Speedy
Trial Clause does not, either on its face or according to the
decisions of this Court, encompass a 'right not to be tried' which
must be upheld prior to trial if it is to be enjoyed at all. It is
the delay before trial, not the trial itself, that offends against
the constitutional guarantee of a speedy trial. . . . Proceeding
with the trial does not cause or compound the deprivation already
suffered."
Id. at
435 U. S.
860-861.
Respondents assert that their claim of prosecutorial
vindictiveness, based on the modification of the original
indictment in retaliation for their exercise of a right to move for
change of venue, is analogous to the three instances in which we
have allowed appeal in criminal cases under the collateral order
doctrine. But we think that their claim is more analogous to the
speedy trial claim which we held unreviewable under the collateral
order doctrine in
United States v. MacDonald, supra. We
think that it particularly fails the third part of the test for
Cohen appeals articulated in
Coopers & Lybrand,
supra, that the claim "be effectively unreviewable on appeal
from a final judgment."
Blackledge v. Perry, 417 U. S. 21
(1974), on which respondents base the merits of their claim of
vindictive prosecution, was an application of the principles
announced in
North Carolina v. Pearce, 395 U.
S. 711 (1969), to conduct on the part of a prosecutor.
In
Perry, the defendant had been
Page 458 U. S. 268
convicted in a state court of limited jurisdiction, and had
exercised his statutory right to a
de novo appeal to the
state court of general jurisdiction. Prior to the commencement of
the latter trial, the prosecutor obtained an indictment charging
the defendant with crimes more severe than those for which he was
initially convicted. Because the facts suggested "a realistic
likelihood of
vindictiveness,'" 417 U.S. at 417 U. S. 27, we
deemed it necessary to apply the "prophylactic rule of
Pearce," id. at 417 U. S. 26, in
order to discourage retaliation by the State for the defendant's
exercise of his procedural right.
Although there is language in the
Perry opinion
suggesting that the defendant possessed a "right not to be haled
into court at all" upon the more serious charge,
id. at
417 U. S. 30, it
is clear that the Court was not using this language to indicate
that he was entitled to be free of any retrial whatever. We stated
in
Perry that,
"[w]hile the Due Process Clause of the Fourteenth Amendment bars
trial of Perry on the felony assault charges in the Superior Court,
North Carolina is wholly free to conduct a trial
de novo
in the Superior Court on the original misdemeanor assault
charge."
Id. at
417 U. S. 31, n.
8. The defendant in
Perry was fully protected by
postconviction relief, leading to a new trial free of the taint of
vindictiveness.
Obviously, it is wholly desirable to correct prior to trial any
substantive errors noticed at that time. It is equally evident
that, when relief must await postconviction proceedings, the
defendant is subjected to the burden of defending himself at trial,
even though the presence of errors might require reversal of his
conviction and possibly a second trial. Nevertheless, reversal of
the conviction and, where the Double Jeopardy Clause does not
dictate otherwise, the provision of a new trial free of prejudicial
error normally are adequate means of vindicating the constitutional
rights of the accused. [
Footnote
2]
Page 458 U. S. 269
As we noted in
United States v. MacDonald, 435 U.S. at
435 U. S. 860,
n. 7:
"Admittedly, there is value -- to all but the most unusual
litigant -- in triumphing before trial, rather than after it,
regardless of the substance of the winning claim. But this truism
is not to be confused with the quite distinct proposition that
certain claims (because of the substance of the rights entailed,
rather than the advantage to a litigant in winning his claim
sooner) should be resolved before trial."
Even when the vindication of the defendant's rights requires
dismissal of charges altogether, the conditions justifying an
interlocutory appeal are not necessarily satisfied. In
MacDonald, for example, we declined to permit a defendant
whose speedy trial motion had been denied before trial to obtain
interlocutory appellate review, despite our recognition that "an
accused who does successfully establish a speedy trial claim before
trial will not be tried."
Id. at
435 U. S. 861,
n. 8. The nature of the speedy trial right was such that
"[p]roceeding with the trial does not cause or compound the
deprivation already suffered."
Id. at
435 U. S. 861.
This holding reflects the crucial distinction between a right not
to be tried and a right whose remedy requires the dismissal of
charges.
See id. at
435 U. S. 860,
n. 7. The former necessarily falls into the category of rights that
can be enjoyed only if vindicated prior to trial. The latter does
not.
Page 458 U. S. 270
The right asserted by respondents is simply not one that must be
upheld prior to trial if it is to be enjoyed at all. [
Footnote 3] As noted in
MacDonald,
supra, there is a superficial plausibility to the contention
that any claim, particularly a constitutional claim, that would be
dispositive of the entire case if decided favorably to a criminal
defendant, should be decided as quickly as possible in the course
of the litigation. But if such a principle were to be applied,
questions as to the constitutionality of the statutes authorizing
the prosecution and doubtless numerous other questions would fall
under such a definition, and the policy against piecemeal appeals
in criminal cases would be swallowed by ever-multiplying
exceptions. It is only a narrow group of claims which meet the test
of being "effectively unreviewable on appeal from a final
judgment," and the claim of prosecutorial vindictiveness is, we
hold, not one of them.
The petition for certiorari is granted, and the judgment of the
Court of Appeals for the Ninth Circuit is reversed, with
instructions to that court to dismiss the appeal.
It is so ordered.
[
Footnote 1]
The rule in the Ninth Circuit directly conflicts with that
adopted by the Courts of Appeals for the District of Columbia and
Fifth Circuits. Those courts have held that claims of prosecutorial
vindictiveness may not be aired in interlocutory appeals.
United States v. Brizendine, 212 U.S.App.D.C. 169, 659
F.2d 215 (1981);
United State v. Gregory, 656 F.2d 1132
(CA5 1981).
[
Footnote 2]
Noting that "encouragement of delay is fatal to the vindication
of the criminal law," this Court has observed that "[b]earing the
discomfiture and cost of a prosecution for crime even by an
innocent person is one of the painful obligations of citizenship."
Cobbledick v. United States, 309 U.
S. 323,
309 U. S. 325
(1940). Thus, in the run of cases,
"[t]he correctness of a trial court's rejection even of a
constitutional claim made by the accused in the process of
prosecution must await his conviction before its reconsideration by
an appellate tribunal."
Id. at
309 U. S.
325-326. This limitation imposed by Congress must be
observed even when the defendant's claim is considered meritorious.
See United States v. MacDonald, 435 U.
S. 850, 857-858, n. 6 (1978).
[
Footnote 3]
By holding that the right asserted by respondents is not one
that "will have been lost, probably irreparably,"
Cohen v.
Beneficial Industrial Loan Corp., 337 U.
S. 541,
337 U. S. 546
(1949), if appeal is postponed until the rendition of judgment, we
imply no view on the merit of respondents' claim or on the more
general question whether the Due Process Clause is violated by the
addition of charges prior to trial. We merely hold that denial of a
motion to dismiss an indictment when the motion is premised on a
claim of prosecutorial vindictiveness is not a collateral order
that can be appealed prior to judgment under § 1291.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join, dissenting.
Today, the Court carries its recent penchant for summary
decision to a new extreme. The substantial and controversial
question raised here -- whether an order denying a motion
Page 458 U. S. 271
to dismiss based on prosecutorial vindictiveness is appealable
before trial -- does not, in my view, lend itself to summary
treatment. Nevertheless, the Court has decided this important
question of appellate jurisdiction without briefing or argument,
even though it was not briefed or argued before the District Court
or the Court of Appeals and was not the subject of any lower court
opinion. I dissent.
I
The Court, it seems to me, has shown a disturbing tendency of
late to dispose of difficult cases by summary per curiam reversals.
I must assume that this tendency is prompted, at least in part, by
the growing pressures of the Court's calendar and an ill-conceived
conviction that we must stay abreast of the increasing workload
whatever the costs may be. I regret this pattern, for I think it
demeans the Court and its work, and surely tends to lessen the
quality of its legal product.
Summary action is particularly unfortunate in this case, for the
Court directs that respondents' appeal be dismissed on an issue
that was not raised by the Government until its petition for
rehearing in the Court of Appeals. Indeed, for more than a year --
until the Court of Appeals ruled on the merits in favor of
respondents -- the Government affirmatively represented to that
court that it "ha[d] jurisdiction to review prior to trial a
District Court's denial of a defendant's motion to dismiss for
vindictive prosecution." United States' Emergency Motion for
Summary Affirmance of District Court, reprinted in App. to Brief in
Opposition 5a. As a result, the jurisdictional question was not
briefed or argued before the Court of Appeals or the District
Court.
Respondents' opposition to the Government's petition for
certiorari understandably focuses on arguments for denying
certiorari -- in particular, the Government's failure to raise the
jurisdictional issue in a more timely fashion. Coupled
Page 458 U. S. 272
with the Government's litigation strategy, the Court's summary
disposition therefore deprives respondents of their "day in court"
in a singularly inappropriate manner.
II
Additionally, I do not find today's ruling so clearly compelled
as to warrant summary treatment, especially when the Solicitor
General, contrary to his frequent practice, has not suggested
summary reversal in his petition for certiorari. In my view, the
issue is important enough to be briefed and argued fully in at
least one court.
Certainly, the Court's disposition is not mandated by our
precedents. As the Court explains,
Cohen v. Beneficial
Industrial Loan Corp., 337 U. S. 541
(1949), and
Abney v. United States, 431 U.
S. 651 (1977), interpret 28 U.S.C. § 1291 as
authorizing interlocutory appeals when a three-part standard has
been met. The Court fails, however, to mention the first two
requirements, presumably because they are satisfied here: that the
denial of a defendant's motion to dismiss an indictment on
vindictive prosecution grounds "constitute[s] a complete, formal,
and, in the trial court, final rejection of a criminal defendant's
[vindictive prosecution] claim," 431 U.S. at
431 U. S. 659,
and that it resolves an issue that is
"collateral to, and separable from, the principal issue at the
accused's impending criminal trial,
i.e., whether or not
the accused is guilty of the offense charged,"
ibid. Unlike the speedy trial claim before the Court in
United States v. MacDonald, 435 U.
S. 850 (1978), which depended on an assessment of the
extent to which delay had prejudiced the defense -- an assessment
that could only be "speculative" prior to trial,
id. at
435 U. S. 858
-- an allegation that the prosecutor impermissibly increased the
charges in response to the defendant's exercise of a legal right
may be evaluated before trial, for all the facts relevant to such a
claim are fully available.
The Court properly suggests that the third requirement set out
in
Cohen and
Abney is the most difficult to apply
in
Page 458 U. S. 273
this context.
See ante at
458 U. S. 267.
But, unlike the Court, I find force in respondents' contention that
the right they seek to vindicate, in contrast to the right at issue
in
MacDonald, is "a
right not to be tried' which must
be upheld prior to trial if it is to be enjoyed at all." 435 U.S.
at 435 U. S. 861.
In MacDonald, it was "the delay before trial, not the
trial itself, that offend[ed] against the constitutional guarantee
of a speedy trial." Ibid. When the defendant has been the
victim of vindictive prosecution, however, the Court has said that
he may "not to be haled into court at all upon the
[increased] charge." Blackledge v. Perry, 417 U. S.
21, 417 U. S. 30
(1974) (emphasis added). And we have analogized that right to the
right protected by the Double Jeopardy Clause, see id. at
417 U. S. 31,
which must, of course, be vindicated prior to trial if it is to be
protected at all. [Footnote
2/1]
Moreover, postconviction review may not suffice to remedy the
chilling effect the vindictive prosecution doctrine is designed to
prevent. The Court repeatedly has declined to hold that the Due
Process Clause forbids only prosecutorial action taken with an
actual retaliatory motive. Rather, it has emphasized that,
"'since the fear of such vindictiveness may unconstitutionally
deter a defendant's exercise of [his] right[s] . . . , due process
also requires that a defendant be freed of
apprehension of
such a retaliatory motivation. . . .'
Page 458 U. S. 274
Id. at 28 (emphasis added), quoting
North Carolina
v. Pearce, 395 U. S. 711,
395 U. S.
725 (1969);
see also United States v. Goodwin,
457 U. S.
368,
457 U. S. 375-376 (1982).
Even if a defendant is convinced that his vindictive prosecution
claim ultimately will prevail on postconviction review, the
increased burdens attending a trial on enhanced charges may deter
him from exercising his legal rights. This may well not be a case,
then, where 'reversal of the conviction and . . . a new trial free
of prejudicial error' are 'adequate means of vindicating the
constitutional rights of the accused.'
Ante at
458 U. S. 268."
In addition to extending our precedents, the Court goes well
beyond the rulings of the two Courts of Appeals it characterizes as
"directly conflict[ing]" with the decision below.
Ante at
458 U. S. 264,
n. 1. In
United States v. Brizendine, 212 U.S.App.D.C.
169, 180, 659 F.2d 215, 226 (1981), the United States Court of
Appeals for the District of Columbia Circuit refused to permit
interlocutory appeals involving "claims of due process violations
arising from the plea bargaining process." That court, however,
expressly refused to consider the appealability of the denial of a
motion to dismiss "in the
Blackledge situation . . . ,"
where the defendant's claim "turned on a purely legal issue . . ."
and challenged increased charges filed in response to his exercise
of a legal right.
Id. at 175, 659 F.2d at 221. Similarly,
in
United States v. Gregory, 656 F.2d 1132, 1136 (1981),
the United States Court of Appeals for the Fifth Circuit did not
foreclose the possibility that some claims of prosecutorial
vindictiveness could be the subject of interlocutory appeal.
[
Footnote 2/2]
Page 458 U. S. 275
I cannot conclude that the Court's ruling is compelled by our
prior cases or is even consistent with the clear weight of
authority in the Courts of Appeals. I would grant the petition for
certiorari and set the case for oral argument.
[
Footnote 2/1]
See Abney v. United States, 431 U.
S. 651,
431 U. S. 659
(1977) (noting that the defendant in
Blackledge v. Perry
was "contesting the very authority of the Government to hale him
into court to face trial on the charge against him");
Blackledge v. Perry, 417 U.S. at
417 U. S. 30-31
(observing that the defendant's vindictive prosecution claim "went
to the very power of the State to bring the defendant into court to
answer the charge brought against him"; that, when the prosecutor
acts vindictively in enhancing charges, the State is "simply
precluded by the Due Process Clause from calling upon the
respondent to answer to the more serious charge . . ."; that "[t]he
very initiation of the proceedings against [a defendant subjected
to vindictive prosecution] operated to deny him due process of
law"; and that "North Carolina simply could not permissibly require
Perry to answer to the felony charge").
[
Footnote 2/2]
Other Courts of Appeals have not restricted interlocutory
appeals to the three instances in which this Court has applied the
collateral order doctrine in criminal cases,
see ante at
458 U. S.
265-266.
See United States v. Venable, 585 F.2d
71, 74-75 (CA3 1978) (denial of motion to bar retrial on collateral
estoppel grounds is immediately appealable);
United States v.
Alessi, 536 F.2d 978, 980-981 (CA2 1976) (denial of motion to
dismiss indictment that allegedly violated prior plea bargain may
be the subject of an interlocutory appeal).