United States v. Henry Samueli ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-50417
Plaintiff-Appellee, D.C. No.
v.  8:08-cr-00156-
HENRY SAMUELI, CJC-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted
September 2, 2009—Pasadena, California
Filed September 24, 2009
Before: Ferdinand F. Fernandez and Ronald M. Gould,
Circuit Judges, and Morrison C. England, Jr.,*
District Judge.
Opinion by Judge Gould
*The Honorable Morrison C. England, Jr., United States District Judge
for the Eastern District of California, sitting by designation.
13785
13788 UNITED STATES v. SAMUELI
COUNSEL
Gordon A. Greenberg, McDermott Will & Emery, LLP, Los
Angeles, California, for the defendant-appellant.
George S. Cardona (argued) and Robb Adkins, Assistant
United States Attorneys, and Thomas P. O’Brien, United
States Attorney, Los Angeles, California, for the plaintiff-
appellee.
OPINION
GOULD, Circuit Judge:
Defendant-Appellant Dr. Henry Samueli appeals two
orders entered by the district court in a criminal proceeding
alleging that he made a false statement to the Securities and
Exchange Commission (SEC) in violation of 18 U.S.C.
§ 1001. We lack jurisdiction to review either order, and we
dismiss the appeal.1
I
This criminal case follows allegations that securities fraud
occurred at Broadcom, a company that Samueli co-founded.
During an SEC investigation into Broadcom’s stock-option
1
Our determination that we lack jurisdiction means that we do not pass
on the merits of the appeal. We do not, therefore, review the disposition
or reasoning contained in the orders below. Samueli may or may not have
viable issues to present on appeal of his sentence once a final order has
been entered, and we express no views on the merits of any such sentenc-
ing appeal.
UNITED STATES v. SAMUELI 13789
grants, Samueli told investigators that he had no involvement
in the granting process. Samueli now admits that he was
involved in the granting process and that he knew that state-
ment was false at the time he made it.
After negotiations with the government, Samueli entered
into a combination charge-and-sentence bargain under Federal
Rule of Criminal Procedure 11(c). Under the agreement, Sam-
ueli would plead guilty to one count of making a false state-
ment in violation of 18 U.S.C. § 1001, but would not face
criminal exposure on securities-fraud charges. The statutory
maximum for an 18 U.S.C. § 1001 violation is five years
imprisonment and a $250,000 fine. The parties’ sentence bar-
gain stipulated five years probation, a $250,000 fine, and a
$12 million payment to the U.S. Treasury “for making a false
statement to the SEC.”
Samueli entered his guilty plea on June 23, 2008. Under
Rule 11(c)(3)(A), the district court elected to wait until the
presentence report (PSR) was complete before deciding
whether to accept the plea agreement. Both parties objected
to portions of the PSR after the probation officer disclosed it.
Before filing his set of objections with the court, Samueli
filed an application for an order sealing the objections and an
in camera hearing to discuss them. The district court denied
this relief on August 26, 2008.
On September 8, 2008, after reviewing the terms of the plea
agreement and the PSR, the district court rejected the agree-
ment. United States v. Samueli, 575 F. Supp. 2d 1154, 1166
(C.D. Cal. 2008). Samueli thereafter declined to withdraw his
guilty plea and now awaits sentencing. In the interim, he
brings this appeal.
II
Samueli first requests review of the August 26, 2008, order
denying his requests to file his PSR objections under seal and
13790 UNITED STATES v. SAMUELI
to hear his objections in camera. Samueli filed his notice of
appeal on September 22, 2008, almost one month after the
August 26, 2008, order was issued. Because a criminal defen-
dant has only ten days to file a notice of appeal from a district
court order, Samueli’s appeal is untimely. Fed. R. App. P.
4(b)(1)(A)(i). Dismissal of the appeal of this order is manda-
tory. United States v. Sadler, 480 F.3d 932, 942 (9th Cir.
2007).
III
[1] The second order at issue, which Samueli did timely
appeal, is the September 8, 2008, order rejecting the plea
agreement. Here, Samueli’s appeal is met by the broad rule
that orders in criminal cases are generally unreviewable
before imposition of a judgment and sentence. Midland
Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989).
Samueli nonetheless asserts that his case comes within an
exceptional category of cases in which an appeal at this stage
might proceed. We address in turn his contentions, reject
them as being without merit, and dismiss his appeal. Because
of the importance of this case for the general subject of
attempts to gain interlocutory appeal of a district court’s
rejection of a plea agreement reached under Rule 11(c) of the
Federal Rules of Criminal Procedure, and because one of our
sister circuits has spoken on this subject although the Ninth
Circuit has not done so, we elaborate on the governing princi-
ples.
A
[2] First, Samueli contends that we have jurisdiction under
28 U.S.C. § 1291, which confers appellate jurisdiction over
final decisions of the district courts. Although conceding that
the plea-rejection is not a final order terminating the litigation,
Samueli argues that it falls within what may be generally
described as the “collateral-order doctrine.” This rule was first
announced prominently in Cohen v. Beneficial Indus. Loan
UNITED STATES v. SAMUELI 13791
Corp., 337 U.S. 541 (1949). Under this doctrine, an interlocu-
tory order is “final,” and thus immediately appealable, if it
determines “claims of right separable from, and collateral to,
rights asserted in the action . . . ” Id. at 546. Collateral-order
jurisdiction attaches to the “small class” of orders determining
rights that are “too important . . . and too independent of the
cause itself to require that appellate consideration be deferred
until the whole case is adjudicated.” Id.[3] In criminal cases, we apply the collateral-order doctrine
with “the utmost strictness.” Flanagan v. United States, 465
U.S. 259, 265 (1984). Otherwise this limited exception would
threaten to undermine the general rule requiring a final order
to support an appeal. Interlocutory appeals are typically
unsuitable for criminal cases. In this sphere interlocutory
appeals can be “fatal to the vindication of the criminal law”
because ensuing delays will threaten to prejudice the govern-
ment’s ability to prove its case and increase litigation and
detention costs. Cobbledick v. United States, 309 U.S. 323,
325 (1940); see also United States v. Austin, 416 F.3d 1016,
1020 (9th Cir. 2005) (citing United States v. MacDonald, 435
U.S. 850, 862 (1978)). For such reasons, an interlocutory
order is appealable only where it affects a “right not to be
tried.” Austin, 416 F.3d at 1022 (citing Flanagan, 465 U.S. at
267).
[4] With these general principles in mind, we apply the
collateral-order doctrine to this case. Our circuit precedent
makes it clear that the plea-rejection order, as with other inter-
locutory orders, will be immediately-appealable only if it: (1)
conclusively determines the disputed question; (2) resolves an
important issue completely separate from the merits; and (3)
is effectively unreviewable on appeal from a final judgment.
United States v. Romero-Ochoa, 554 F.3d 833, 836 (9th Cir.
2009) (citing Will v. Hallock, 546 U.S. 345, 349 (2006)). We
lack jurisdiction unless all three elements are met. McElmurry
v. U.S. Bank Nat’l Ass’n, 495 F.3d 1136, 1140 (9th Cir.
2007). The newsworthy nature of a case and potential public
13792 UNITED STATES v. SAMUELI
interest in it do not alter these basic rules and, if they are not
satisfied, we have no discretion to alter our law.
[5] Addressing the first prong, if the “disputed question”
concerns the sentence that will be given, that has not yet been
determined. But if the “disputed question” concerns whether
the plea agreement will be accepted, the first prong is satisfied
because this plea agreement has been rejected. On this analy-
sis, it is not at all clear that Samueli can show a conclusive
determination on the disputed question of his sentence. But
even if we may reasonably assume that the first prong in sub-
stance has been satisfied on the theory that the question in dis-
pute concerns acceptance of the Rule 11(c) plea agreement,
nonetheless the appeal of the order fails because the second
and third prongs of the test for a collateral order are not satis-
fied.
[6] As to the second prong of the collateral-order test, a
plea-rejection order is not completely separate from the mer-
its. The district court concluded that the rejected sentence bar-
gain was not in the interest of justice, a determination
inescapably intertwined with the issue of what is the appropri-
ate and just sentence due Samueli in the light of his role in the
allegedly-fraudulent stock-option grants and his culpability on
the charge to which he pleaded guilty. Cf. Abney v. United
States, 431 U.S. 651, 659-60 (1977) (holding interlocutory
review is appropriate where an order related to claim “com-
pletely independent of [the defendant’s] guilt or innocence”).
We agree with the Tenth Circuit, which has held that the deci-
sion to reject a plea is “directly dependent on the court’s
assessment of the defendant’s degree of culpability” and can-
not be separated from the principal issue as required by the
collateral-order doctrine. United States v. Carrigan, 778 F.2d
1454, 1465 (10th Cir. 1985).2
2
The Carrigan court reviewed a plea rejection under a previous version
of Rule 11. Despite having been renumbered, the substantive provisions
of the rule remain the same. See Fed. R. Crim. P. 11(e), Federal Criminal
Code and Rules, at 37-38 (West 1985).
UNITED STATES v. SAMUELI 13793
[7] Applying the third-prong of the collateral order rule, we
determine the plea-rejection order is effectively reviewable on
appeal from a final judgment. After Samueli’s sentencing,
either party may argue that the district court abused its discre-
tion in rejecting the combined plea and sentence agreement.
See In re Morgan, 506 F.3d 705, 708 (9th Cir. 2007). Because
Samueli decided to maintain his guilty plea after the sentence
agreed upon by Samueli and the government was rejected, the
only action remaining for finality is the sentencing of Sam-
ueli. Once the district court enters the judgment and commit-
ment order, it will be clear whether Samueli’s sentence is
greater than, less than, or equal to the stipulated term. We will
also have the benefit of the district court’s analysis at the sen-
tencing hearing. At that time, the district court’s rejection of
the Rule 11(c) plea and sentence agreement can be reviewed.
If there is then perceived merit to any claim by Samueli relat-
ing to his sentence imposed by final order, Samueli’s rights
can be vindicated on an appeal.
[8] Despite what we see as a clear application of settled
principles that take this case outside the legitimate bounds of
the collateral-order doctrine, Samueli argues that he will suf-
fer irreparable harms if required to wait until after sentencing
to appeal. Among these, he complains about the stigma of
continued association with the securities-fraud allegations, the
loss of an immediate evidentiary hearing on his objections to
the PSR, and the pressure that he feels to testify in his former
colleagues’ upcoming trials.3 These harms, however, do not
implicate rights “synonymous with a right not to be tried,”
3
Samueli incorrectly characterizes the plea-rejection order as a require-
ment that he cooperate with prosecutors in the trials of his former col-
leagues. He argues that the order is immediately-reviewable because of its
effect on his Fifth Amendment privilege, citing Bittaker v. Woodford, 331
F.3d 715 (9th Cir. 2003) (en banc), for the proposition that orders impli-
cating privileges are reviewable on interlocutory appeal. Bittaker, how-
ever, is inapposite because the order there directly determined the
applicability and scope of the attorney-client privilege in a civil habeas
proceeding. Id. at 717. Unlike in Bittaker, the order here does not make
any rulings with respect to Samueli’s Fifth Amendment privilege, but
rather considers the absence of a cooperation agreement as one of several
factors weighing against the acceptability of the plea. It does not conclu-
sively determine the existence or scope of Samueli’s privilege, as the order
in Bittaker did. Id.13794 UNITED STATES v. SAMUELI
Austin, 416 F.3d at 1024 (internal citations omitted), and we
decline to extend the scope of the collateral-order doctrine to
encompass them. Because the finality rule is important to a
well-functioning appellate system, we will not lightly expand
the collateral-order doctrine. We hold that an order rejecting
a plea agreement under Rule 11(c) is not separate from the
merits and can be effectively reviewed on appeal, and we
therefore lack jurisdiction to review it as a collateral order.
B
[9] Samueli’s second jurisdictional argument is that the
plea-rejection order is immediately-appealable under 28
U.S.C. § 1292(a)(1), which confers interlocutory jurisdiction
over orders refusing injunctions, as well as orders that have
the “practical effect” of doing so. Carson v. American Brands,
Inc., 450 U.S. 79, 83-84 (1981). An order has the practical
effect of an injunction if it is directed to a party, enforceable
by contempt, and designed to accord some or all of the relief
sought by a complaint. Orange County v. Hongkong and
Shanghai Banking Corp. Ltd., 52 F.3d 821, 825 (9th Cir.
1995) (citing 16 Charles A. Wright et al., Federal Practice and
Procedure § 3922 at 29 (1977) (additional citations omitted)).
[10] A plea-rejection order does not refuse an injunction,
because a plea agreement, if accepted, would not compel or
prohibit action by either party. See Alsea Valley Alliance v.
Dep’t of Commerce, 358 F.3d 1181, 1186-87 (9th Cir. 2004).
The district court’s order explains its reasons for rejecting the
plea agreement, but does not place the parties under court
order of any kind and is therefore not directed at a party.
Moreover, the plea-rejection order is not enforceable by con-
tempt. We lack jurisdiction under 28 U.S.C. § 1292(a)(1).
C
[11] Finally, Samueli argues that our decision in In re Mor-
gan, 506 F.3d 705 (9th Cir. 2007), provides an independent
UNITED STATES v. SAMUELI 13795
and sufficient jurisdictional basis for his appeal. Morgan,
however, did not purport to create an independent jurisdic-
tional ground. Jurisdiction was proper in that case because the
appellant petitioned for a writ of mandamus under 28 U.S.C.
§ 1651(a), a remedy not sought by Samueli here. See Morgan,
506 F.3d at 707. Absent a prerequisite showing that we have
jurisdiction, we have no power to review these interlocutory
orders, and accordingly we do not do so.
For the reasons stated above, the appeal is DISMISSED.