Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81-Cr-117 -- John F. Grady, Judge. Appeals from the United States District Court for the Eastern District of Wisconsin. No. 80-Cr-1461 -- Robert W. Warren, Judge
Before Pell, Bauer and Cudahy, Circuit Judges.
In these appeals we decide that the district court's denial of a motion to dismiss a criminal indictment on the allegation of prosecutorial vindictiveness is not a final appealable order. 28 U.S.C. § 1291. For reasons presented below, we dismiss these appeals for want of appellate jurisdiction.*fn1
In United States v. Brown and DeMichael, Nos. 81-2519, 81-2522 ("Brown "), the defendants moved to dismiss the indictment brought against them in the Eastern District of Wisconsin, charging each with one count of wire fraud, 18 U.S.C. § 1343, and one count of interstate transportation of property taken by fraud, 18 U.S.C. § 2314. The motion was primarily based on their allegation of prosecutorial misconduct.*fn2 Briefly, they contended that the United States Attorney in the Eastern District of Wisconsin sought their indictment since the Government was displeased with the assertedly lenient treatment defendants received in a related case in the Northern District of Illinois. From an examination of the documents presented with the motions papers in this Court, the Government's displeasure reputedly stemmed, inter alia, from the trial judge's severance of some defendants, acquittal of a co-defendant based on a finding of insanity, and grant of a light sentence to DeMichael. The defendants additionally ascribed an improper motive to the Government in its delay in the return of the indictment in the Eastern District of Wisconsin until after trial and sentencing in the Northern District of Illinois.
At the conclusion of a four day evidentiary hearing on this motion to dismiss and other motions, a magistrate recommended to the district judge that the motion to dismiss be denied. Defendant DeMichael*fn3 filed objections to the magistrate's recommendations.*fn4 The district judge adopted the magistrate's recommendations and defendants filed their notice of appeal.
In United States v. Rosario, No. 81-2432, the defendant, charged with three counts of theft or receipt of stolen mail matter, 18 U.S.C. § 1708, similarly moved to dismiss the indictment based on prosecutorial retaliation. His motion was grounded on the contention that the indictment had the "appearance of prosecutorial retaliation" because he had been indicted in the instant case after he had filed his notice of appeal from an earlier conviction, also for theft or receipt of stolen mail.*fn5 It is his contention that the incidents giving rise to the second indictment could have been joined in the first indictment. After two hearings, the motion to dismiss was denied in a minute order. Rosario's appeal followed.
In Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974), the Supreme Court found a prosecutor could not respond to a criminal defendant's invocation of a statutory right to appeal by bringing additional charges against him. In Blackledge, the defendant appealed a misdemeanor conviction from misdemeanants' court, thus entitling him, under North Carolina law, to a trial de novo in the superior court. The prosecutor then obtained an indictment from a grand jury, charging the defendant with a felony for the same conduct for which he had been convicted in misdemeanants' court. Examining the prosecutor's conduct, the Court concluded that the appearance of vindictiveness was violative of the Constitution's due process guarantees:
A person convicted of an offense is entitled to pursue his statutory rights to a trial de novo, without apprehension that the prosecutor retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.
Id. at 28, 94 S. Ct. at 2102 (footnote, citation omitted).
While Blackledge proscribes such retaliatory prosecutions, it is unsettled whether a denial of a motion to dismiss an indictment on such grounds can be immediately appealed or must be reviewed only at the conclusion of the criminal proceedings in the trial court.
The Supreme Court has acknowledged only three exceptions to the requirement that a defendant be sentenced before seeking review of the trial court's orders: denial of reduction of bond, Stack v. Boyle, 342 U.S. 1, 72 S. Ct. 1, 96 L. Ed. 3 (1951) (see also 18 U.S.C. § 3147(b), Fed. R. App. P. 9(a)); denial of a motion to dismiss based on double jeopardy grounds, Abney v. United States, 431 U.S. 651, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977); and denial of a Congressman's claim of privilege based on the Speech and Debate Clause, Helstoski v. Meanor, 442 U.S. 500, 99 S. Ct. 2445, 61 L. Ed. 2d 30 (1979).
Abney sets out the criteria to be applied to determine if an order entered in a criminal proceeding may be immediately appealed. Such an order is (1) a complete, formal, and in the trial court, final rejection of a criminal defendant's claim, (2) collateral to, and separable from the issue of guilt or innocence (3) of which the failure to review before conviction and sentence would significantly undermine the rights conferred on the defendant. Id. at 659-60, 97 S. Ct. at 2040. See also Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 1225, 93 L. Ed. 1528 (1949); Cobbledick v. United States, 309 U.S. 323, 60 S. Ct. 540, 84 L. Ed. 783 (1940); Freeman v. Kohl & Vick Machine Works, Inc., 673 F.2d 196 (7th Cir. ...