United States v. Justin Credico , 646 F. App'x 248 ( 2016 )

                                                                  NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 15-2759
______________
UNITED STATES OF AMERICA
v.
JUSTIN MICHAEL CREDICO,
Appellant
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:14-cr-0118-001)
District Judge: Honorable Cynthia M. Rufe
______________
Submitted under Third Circuit LAR 34.1(a)
March 15, 2016
Before: FUENTES, CHAGARES, and RESTREPO, Circuit Judges
(Filed: April 6, 2016)
______________
OPINION*
______________
RESTREPO, Circuit Judge
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
In March 2014, a grand jury indicted Appellant, Justin Michael Credico, on two
counts of threatening a federal agent, in violation of 18 U.S.C. § 115(a)(1)(B), and two
counts of threatening a family member of a federal agent, in violation of 18 U.S.C. §
115(a)(1)(A).1 Credico has filed a pro se interlocutory appeal of the District Court’s July
2, 2015 Order denying his motion for reconsideration of the denial of his motion to
dismiss the second through fourth counts of the indictment. We dismiss Credico’s
interlocutory appeal for lack of jurisdiction.
1. BACKGROUND
In December 2014, Credico filed in the District Court a pro se motion to dismiss
the second through fourth counts of the four-count indictment. In support of his motion,
he claimed that the government could not show that the elements of the crimes were met.
Following the filing of the government’s response to the motion, the Honorable Cynthia
M. Rufe denied Credico’s motion to dismiss by Order filed February 13, 2015.
1
The statute provides, in relevant part: “Whoever -- (A) . . . threatens to assault, kidnap or
murder a member of the immediate family of . . . a Federal law enforcement officer . . .;
or (B) threatens to assault, kidnap, or murder, . . . a Federal law enforcement officer . . .
with intent to impede, intimidate, or interfere with such . . . law enforcement officer while
engaged in the performance of official duties, or with intent to retaliate against such . . .
law enforcement officer on account of the performance of official duties, shall be
punished . . .” 18 U.S.C. § 115(a)(1)(A) & (B). Here, Count One of the Indictment
charges Credico with threatening to assault and murder FBI Special Agent #1 in violation
of § 115(a)(1)(B), Count Two charges him with threatening to assault the wife of FBI
Special Agent #1 in violation of § 115(a)(1)(A), Count Three charges him with
threatening to assault and murder FBI Special Agent #2 in violation of § 115(a)(1)(B),
and Count Four charges him with threatening to assault the daughter of FBI Special
Agent #2 in violation of § 115(a)(1)(A).
2
Credico then filed a pro se motion for reconsideration of the denial of his motion
to dismiss. In support of his motion for reconsideration, he raised for the first time the
claim that a trial on Counts Two through Four would violate his right to protection from
double jeopardy on the basis that those counts were impermissibly multiplicitous.
A hearing was held on July 2, 2015, and by Order filed that same day Judge Rufe
denied the motion for reconsideration. Judge Rufe concluded that Credico’s claim was
not a basis for reconsideration in that he did not raise his multiplicity challenge in support
of his motion to dismiss and all of the facts necessary to bring the claim were known to
him when he filed the motion to dismiss. Nevertheless, Judge Rufe found Credico’s
multiplicitous claim without merit since each count of the indictment required proof of a
fact that the others did not: that a different person was threatened. The District Court also
denied Credico’s oral motion to file an interlocutory appeal from that ruling. Credico
immediately appealed the denial of his multiplicity challenge to the indictment.2
The government responds that since Credico is appealing a pretrial order, this
Court lacks jurisdiction over this interlocutory appeal. The government further argues
that even if we had jurisdiction, an affirmance of the denial of the reconsideration motion
would be warranted in that the District Court properly found that Credico was not entitled
to reconsideration, and in any event, there was no violation of the rule against
multiplicity.
2
Shortly after filing his appeal, Credico submitted a petition for a writ of mandamus
requesting that we direct the District Court to stay “any and all proceedings” until we
resolve his double jeopardy claim in his separate appeal. We denied that petition. See In
re Credico, No. 15-2659, 611 F. App’x 754 (3d Cir. Aug. 7, 2015) (per curiam).
3
2. DISCUSSION3
Credico claims that Counts Two through Four should be dismissed as
impermissibly multiplicitous and may lead to multiple sentences for a single violation,
which is prohibited by the Double Jeopardy Clause. See United States v. Pollen, 

978 F.2d 78

, 83 (3d Cir. 1992) (defining “multiplicitous indictment”). Thus, Credico argues
that the District Court erred in denying his reconsideration motion.
The threshold question presented here is whether we have jurisdiction over
Credico’s appeal of the District Court’s pretrial order rejecting his claim that the counts
of the indictment with which he is being charged are impermissibly multiplicitous, in
violation of the Double Jeopardy Clause of the Fifth Amendment. Concluding that we
lack jurisdiction over Credico’s appeal under the circumstances of this case, we dismiss
the appeal.
Title 28 U.S.C. § 1291 grants the federal courts of appeals jurisdiction to review
“all final decisions of the district courts,” both civil and criminal. Abney v. United States,

431 U.S. 651

, 657 (1977) (quoting § 1291). This “final judgment” rule ordinarily
“prohibits appellate review until conviction and imposition of sentence” in a criminal
case. United States v. Wright, 

776 F.3d 134

, 140 (3d Cir. 2015) (quoting Flanagan v.
United States, 

465 U.S. 259

, 263 (1984) (citations omitted)). Moreover, “[a]dherence to
this rule of finality has been particularly stringent in criminal prosecutions because ‘the
delays and disruptions attendant upon intermediate appeal,’ which the rule is designed to
3
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. Our review of the
threshold question of whether we have jurisdiction is plenary. United States v. Wright,

776 F.3d 134

, 139 (3d Cir. 2015) (citing In re Blatstein, 

192 F.3d 88

, 94 (3d Cir. 1999)).
4
avoid, ‘are especially inimical to the effective and fair administration of the criminal
law.’” 

Abney, 431 U.S. at 657

(quoting DiBella v. United States, 

369 U.S. 121

, 126
(1962)).
In Cohen v. Beneficial Industrial Loan Corp., 

337 U.S. 541

(1949), the Supreme
Court announced the collateral order exception to the “final judgment” rule. The
collateral order doctrine permits appellate review of a “small class” of cases that “finally
determine[s] claims of right separable from, and collateral to, rights asserted in the action
too important to be denied review and too independent of the cause itself to require that
appellate consideration be deferred until the whole case is adjudicated.” 

Id. at 546.

The Supreme Court in Cohen identified a three-pronged test which, when
satisfied, “render[s] the District Court’s order a ‘final decision’ within [§ 1291’s]
meaning.” 

Abney, 431 U.S. at 658

; see 

Cohen, 337 U.S. at 546

; 

Wright, 776 F.3d at 143

-
44 (explaining the “three-pronged Cohen test”). Under the collateral order exception, a
court of appeals may exercise immediate review over Orders that: (1) conclusively
determine the disputed question; (2) resolve an important issue completely separate from
the merits of the action; and (3) are effectively unreviewable on appeal from a final
judgment. 

Wright, 776 F.3d at 140

(quoting Coopers & Lybrand v. Livesay, 

437 U.S. 463

, 468 (1978) (citations omitted)).
“Time and again, the Supreme Court has reiterated the limited nature of” the
collateral order doctrine. 

Wright, 776 F.3d at 140

. The Supreme Court has “repeatedly
stressed that the ‘narrow’ exception should stay that way and never be allowed to
swallow the general rule that a party is entitled to a single appeal, to be deferred until
5
final judgment has been entered.” Digital Equip. Corp. v. Desktop Direct Inc., 

511 U.S. 863

, 868 (1994) (citations omitted). Thus, the Supreme Court has emphasized the
“modest scope” of the doctrine and pointed out that “although the Court has been asked
many times to expand the ‘small class’ of collaterally appealable orders, we have instead
kept it narrow and selective in its membership.” Will v. Hallock, 

546 U.S. 345

, 350
(2006). “This admonition holds special significance in criminal cases, where we must
apply the collateral-order exception ‘with the utmost strictness.’” 

Wright, 776 F.3d at 140

(citing 

Flanagan, 465 U.S. at 265

). As we pointed out in Wright and United States v.
Wecht, 

537 F.3d 222

(3d Cir. 2008), “[s]uch appeals are thus permitted ‘only in the most
rare and exceptional circumstances.’” 

Wright, 776 F.3d at 140

(citing 

Wecht, 537 F.3d at 244-45

).
In Abney, the Supreme Court acknowledged that “[t]he pretrial denial of a motion
to dismiss an indictment on double jeopardy grounds is obviously not ‘final’ in the sense
that it terminates the criminal proceedings in the district court.” 

Abney, 431 U.S. at 657

.
However, after applying the three-pronged Cohen test, the Supreme Court in Abney
stated: “We therefore hold that pretrial orders rejecting claims of former jeopardy, such
as that presently before us, constitute ‘final decisions’ and thus satisfy the jurisdictional
prerequisites of § 1291.” 

Id. at 662

(emph. added).
In support of this holding in Abney, the Supreme Court explained that the double
jeopardy claim made in that case challenging a retrial on the indictment “contest[ed] the
very authority of the Government to hale [the petitioner] into court to face trial on the
charge against him.” 

Id. at 660

(emph. added). The Supreme Court’s conclusion was
6
“based on the special considerations permeating claims of that nature which justify a
departure from the normal rule of finality.” 

Id. at 663.

Indeed, Abney clarified: “Quite
obviously, such considerations do not extend beyond the claim of former jeopardy. . .
Rather, such claims are appealable if, and only if, they too fall within Cohen’s collateral-
order exception to the final-judgment rule.” 

Id. (emph. added).

Consistent with that principle, we explained in Wright that “seven of our sister
courts of appeals have found that the touchstone for interlocutory jurisdiction is a
collateral-estoppel claim that, if successful, would require dismissal of, at a minimum,
an entire count.” 

Wright, 776 F.3d at 141

(emph. added) (citing cases which each
involved claims of former jeopardy).4 Thus, these cases entailed the issue of former
jeopardy or prior and successive criminal or civil proceedings. See, e.g., Witkowski v.
Welch, 

173 F.3d 192

, 198-99 (3d Cir. 1999) (collateral estoppel requires, among other
things, prior adjudication of an issue on its merits).
“The Double Jeopardy Clause of the Fifth Amendment provides that no person
shall be ‘subject for the same offence to be twice put in jeopardy of life or limb.’” Jones
v. Thomas, 

491 U.S. 376

, 380 (1989). The Clause affords three protections to a criminal
defendant: (1) protection against a second prosecution for the same offense after
acquittal; (2) protection against a second prosecution for the same offense after
4
In Wright, we cited the cases from our sister circuits in support of the proposition that
interlocutory jurisdiction was dependent on whether the claim, if successful, would
require dismissal of the indictment as a whole, or, at a minimum, dismissal of any single
count. 

Wright, 776 F.3d at 141

-42. However, we also noted that these cases involved
collateral-estoppel claims. 

Id. at 141.

                                               7
conviction; and (3) protection against “multiple punishments for the same offense”
imposed in a single proceeding. 

Id. at 380-81

(citations omitted).
The Supreme Court in Jones v. Thomas pointed out that the first two protections
afforded by the Double Jeopardy Clause, which are the most familiar, protect against a
second prosecution for the same offense after either acquittal or conviction. 

Id. at 381.

However, Jones involved a claim that a defendant’s initial conviction and sentence for
both felony murder and the underlying felony violated the third aspect of the Double
Jeopardy Clause. 

Id. In addressing

the constitutional question of “what remedy is
required to cure the admitted violation,” the Supreme Court observed that the “answer
turns on the interest that the Double Jeopardy Clause seeks to protect.” 

Id. In particular,

the Court pointed out: “Our cases establish that in the multiple punishments context, that
interest is ‘limited to ensuring that the total punishment did not exceed that authorized by
the legislature.’” 

Id. (citing United

States v. Halper, 

490 U.S. 435

, 450 (1989)). The
Supreme Court in Jones concluded that the state-court remedy following the convictions
and sentences “fully vindicated [the defendant’s] double jeopardy rights.” 

Id. at 381-82

(emph. added).
In the appeal before us, Credico claims that he is being charged with a
multiplicitous indictment. “A multiplicitous indictment charges the same offense in two
or more counts and may lead to multiple sentences for a single violation, a result
prohibited by the Double Jeopardy Clause.” United States v. Pollen, 

978 F.2d 78

, 83 (3d
Cir. 1992) (citing United States v. Stanfa, 

685 F.2d 85

, 86-87 (3d Cir. 1982)). “The
interest protected by the Double Jeopardy Clause in this multiple punishment context is
8
confined to ‘ensuring that the total punishment did not exceed that authorized by the
legislature.’” 

Id. (citing Jones

, 491 U.S. at 381) (emph. added).
In United States v. Decinces, 

808 F.3d 785

(9th Cir. 2015), our sister circuit was
presented with an appeal of a pretrial Order where the appellant raised a double jeopardy
claim premised on the theory that certain counts in the indictment were multiplicitous.
As in the appeal before us, the appellant in Decinces argued that the Court of Appeals
had jurisdiction of the interlocutory appeal under the collateral order doctrine. 

Id. at 793.

The Ninth Circuit found that this “claim flounders on the third prong [of the Cohen test] –
reviewability following judgment.” 

Id. (citing United

States v. Tillman, 

756 F.3d 1144

,
1149 (9th Cir. 2014)). The Court in Decinces explained that it was undisputed that the
appellant was entitled to a direct appeal should he be convicted of violations of both
counts which he claimed were mulitiplicitous. 

Id. (citing Tillman,

756 F.3d at 1149
(noting that the collateral order doctrine is inapplicable where a direct appeal is
available)). The Ninth Circuit concluded that the appellant could not establish
jurisdiction under the collateral order doctrine. 

Id. Similarly, here

where Credico argues that the counts in the indictment are
multiplicitous, the “interest protected by the Double Jeopardy Clause in this multiple
punishment context is confined to ‘ensuring that the total punishment [does] not exceed
that authorized by the legislature.’” See 

Pollen, 978 F.2d at 83

(citing 

Jones, 491 U.S. at 381

). Credico does not claim a violation of the first two protections afforded by the
Double Jeopardy Clause, and significantly, his appeal does not involve former jeopardy.
See 

Jones, 491 U.S. at 380-81

; see also 

Abney, 431 U.S. at 662

(holding that “pretrial
9
orders rejecting claims of former jeopardy . . . satisfy the jurisdictional prerequisites of §
1291”). Rather, his appeal alleges a violation of the third protection afforded by the
Clause – multiple punishments for the same offense imposed in a single proceeding. See

Jones, 491 U.S. at 380-81

.
Even assuming, without deciding, that Credico’s double jeopardy claim is
colorable and that the first two prongs of the Cohen test are satisfied, his appeal does not
satisfy the third prong of the Cohen test since his claim can be effectively reviewed on
appeal from a final judgment. See 

Decinces, 808 F.3d at 793

; see, e.g., 

Jones, 491 U.S. at 381

-82 (where remedy following the convictions and sentences “fully vindicated [the
defendant’s] double jeopardy rights”). Moreover, he does not show a likelihood that if
review of his multiplicity claim had to await final judgment, his right against double
jeopardy would be lost irreparably. We therefore lack jurisdiction over this interlocutory
appeal, and the appeal is dismissed.
3. CONCLUSION
For the foregoing reasons, this appeal does not qualify as an exception to the final
judgment rule. Accordingly, we dismiss for lack of jurisdiction. In holding that this
appeal is barred by 28 U.S.C. § 1291, we express no opinion as to the merits.
10