George B. Parr v. United States , 225 F.2d 329 ( 1955 )

HUTCHESON, Chief Judge.

This appeal is from an order dismissing, on motion of the United States, an indictment in three counts returned against the defendant below, appellant here, in the Corpus Christi Division of the Southern District of Texas, and charging him within such division and district with preparing and causing to be prepared false and fraudulent income tax returns for the years 1950, 1951, and 1952, and filing them with the Collector of Internal Revenue for the First Internal Revenue Collection District of Texas, by depositing and causing them to be deposited at the Corpus Christi Division Office. Giving notice of appeal from the order, defendant is here attacking it as erroneous and seeking its reversal.

The United States, proceeding under Rule 39(a), Federal Rules of Criminal Procedure, 18 U.S.C.A., “Supervision of Appeal * * * in Appellate Court”,¹ has filed a motion to dismiss the appeal on three grounds,² and the matter is before us on the motion to dismiss.

Supporting its motion by brief and argument and the citation of many authorities,³ the United States urges upon us that the only kind of order having the requisite finality to support an appeal in a criminal case is one imposing a sentence and leaving nothing to be done but to enforce by execution what has been determined, and that the order in question determined nothing as to defendant’s guilt or innocence. So urging, it insists: that whatever may be the merits of appellant’s contentions as to the correctness or incorrectness of the judge’s action in entering the order, those contentions are not, they cannot be, for decision here; and that, since the dismissal of the indictment determined nothing except that it would be no longer prosecuted, the determination by us of defendant’s contentions must await the entry of, and the appeal from, a final judgment.

On his part, the appellant, realizing that an ordinary dismissal on the motion of the United States of a pending indictment is not a final judgment from which an appeal will lie, is here insisting that the order appealed from is not such an order, and this appeal is not such an appeal. So insisting, he thus states his case:

“It is the position of the accused that (1) the dismissal was filed during the trial without his consent, contrary to the provisions of Rule 48(a) Rules of Criminal Procedure, and (2) the order transferring the case from the Corpus Christi Division to the Laredo Division, Southern District of Texas, pursuant to Rule 21(a) R.C.P., was res judicata of venue and effectively lodged exclusive jurisdiction of the offenses charged by the indictment against accused in the Laredo Division, Southern District of Texas. For these and other reasons stated below, the accused urges that the judgment of dismissal filed May 20, 1955, from which this appeal is prosecuted is an erroneous final decision of the District Court of the United States for the Southern District of Texas, Laredo Division, within the meaning of 28 U.S.C., Section 1291.”

In support of his position, as thus stated, appellant cites no federal decision, there is none, holding that an order dismissing an indictment is appealable, none supporting his claim that under federal jurisprudence the order in this case was a final and appealable order. Instead he cites cases dealing with non suits entered in civil cases such as Cybur Lumber Co. v. Erkhart, 5 Cir., 247 F. 284; Massachusetts Fire & Marine Ins. Co. v. Schmick, 8 Cir., 58 F.2d 130; Cf. Marks v. Leo Feist, Inc., 2 Cir., 8 F.2d 460; Ruff v. Gay, 5 Cir., 67 F.2d 684; Weeks v. Fidelity & Casualty Co., 5 Cir., 218 F.2d 503; and Vaughan v. City Bank & Trust Co., 5 Cir., 218 F.2d 802.

He further urges that the order, entered on defendant’s motion, transferring the case from the Corpus Christi to the Laredo Division for trial was res judicata as to the jurisdiction and venue of the prosecution of the defendant for the identical offense charged in the indictment in this case; that the court, therefore, was without authority to dismiss the case under Rule 48(a) Federal Rules of Criminal Procedure, 18 U.S.C.; that under the circumstances the only order of dismissal authorized is with prejudice forever terminating the prosecution of defendant for the offense charged; and that thus the order sought to be appealed from is invested with finality. He, however, cites no federal cases in support of this view. Instead he relies entirely upon decisions of state courts controlled by particular statutes or particular principles or theories of jurisprudence. Basic among them is the case of Coleman v. State, 83 Miss. 290, 35 So. 937, 64 L.R.A. 807, a Mississippi decision holding that under a statute providing in effect that where an offense is committed in one or more counties that county where the offense was commenced, prosecuted or consummated, where prosecution shall be first begun, shall have exclusive jurisdiction of the cause, the state could not, after having begun the prosecution in one county, dismiss the indictment and file it in another county. He also cites several civil cases from Texas, one of them holding that under certain conditions interlocutory orders, though not appealable for want of finality, may be complained of on an appeal from a final judgment in the cause, Coke v. Pottorff, Tex.Civ.App., 140 S.W.2d 586, and others that, under Texas Rules of Civil Procedure expressly so providing, appeals will lie from certain interlocutory orders.

As his final position, appellant, disputing appellee’s claim that the appeal is frivolous, asserts that his claim of prejudice from the dismissal order is meritorious in that if the orders transferring the cause to the Laredo Division and then dismissing the indictment, did not constitute former jeopardy so as to prevent further prosecution, the order of transfer was a holding that he could be prosecuted only in that division and in legal effect prevents his being prosecuted in the Western District of Texas, or anywhere except in the Laredo Division of the Southern District.

Interpreting these contentions and arguments in terms of legal theory, they seem to be: that when, after lengthy hearings, Judge Kennerly granted defendant’s motion to transfer the case to Laredo, his ruling was a final and irrevocable adjudication that jurisdiction of the offense of defrauding the revenue was thereby exclusively vested in the Laredo Division of the Southern District of Texas; that it created in the defendant a vested right to be tried there, and there alone; and that, when the government presented the facts to a grand jury and obtained an indictment in the Western District of Texas, and then, as appellant claims, erroneously procured a dismissal of the indictment earlier obtained in the Southern District, it in effect induced the court to enter an order depriving defendant of that right, and thus the order appealed from was invested with finality and was and became a final judgment. Thus, as it seems to us, presenting his position at once on the motion to dismiss and on the merits of the appeal and analogizing the dismissal of the indictment over his objection to a non suit in a civil case over the objection and to the prejudice of the defendant, the defendant argues quite contradictorily: (1) that this deprivation furnishes the element which at once invests the order with finality sufficient to make it appealable and requires its reversal; and (2) that if it stands unre-versed, it has the effect of entitling him to an acquittal altogether.

We pass, without consideration or discussion of them, appellant’s views on the merits, because, unless the order is final and we think it is not, the merits are not before us, to take up and dispose of the only matter now before us, the finality vel non of the order here sought to be appealed from.

We think it clear that none of defendant’s claims that it is final are well taken, as bearing upon the finality of the order for the purpose of appeal. All that occurred in this case and the sole purport and effect of the order sought to be appealed from is simply that the United States has elected to discontinue, and has discontinued, the prosecution of the indictment returned in the Southern District of Texas, and that the order sought to be appealed from is therefore not final but discretionary and interlocutory and not appealable. Semel v. United States, 158 F.2d 231, and authorities cited in note 3, supra. These, though not on all fours on their facts, do give insight into the problem of “finality” presented here. They, together with Swift (Swift & Co. Packers v. Companía Colombiana Del. Caribe, S. A.), 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206 and Cohen (Cohen v. Beneficial Industrial Loan Corp.), 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, .indicate the general and consistent approach that an order is “final” only if it terminates the matter in controversy below. When a seemingly interlocutory order has been held appealable, it has been on the theory that irreparable injury will result from dismissal of the appeal or that the particular narrow issue with which the order was concerned is wholly separable from the remainder of the case and the order terminates the separable issue.

The matter put in controversy by the dismissed indictment was the defendant’s guilt of the crime of tax evasion charged in it. That issue was never reached for determination, let alone determined, and under the controlling authorities cited, supra, the appeal must, therefore, be and it is hereby dismissed for want of finality in the order appealed from.

From these views that the order appealed from was not a final order and the court is without jurisdiction of this appeal to be followed by an order dismissing it, completely inconsistent as they are with the theory of protecting and preserving this court’s jurisdiction, on which appellant’s motion was filed in this cause, it follows that the motion for leave to file petition for writs of mandamus and prohibition must be, and it is, denied.

1 . Cf. Semel v. United States, 5 Cir., 158 F.2d 229.

2 . These are: (1) that the order of dismissal is not appealable because not a final decision in a criminal case within the meaning of 28 U.S.C. § 1291; (2) because, as the record shows, the defendant has been indicted in the Western District of Texas, and it is the intention of the government to prosecute that indictment to a final decision there; and (3) because the appeal is frivolous and obviously without merit, and is taken for the purpose of delay.

3 . Particularly Berman v. U. S., 302 U.S. 211, 58 S.Ct. 164, 82 L.Ed. 204; Cobbledick v. U. S., 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783; U. S. v. Swidler, 3 Cir., 207 F.2d 47; Lewis v. U. S., 216 U.S. 611, 30 S.Ct. 438, 54 L.Ed. 637; Heike v. U. S., 217 U.S. 423, 30 S.Ct. 539, 54 L.Ed. 821; McLish v. Hoff, 141 U.S. 661, 12 S.Ct. 118, 35 L.Ed. 893; Ex parte Altman, D.C., 34 F.Supp. 106; and U. S. v. Doe, D.C., 101 F.Supp. 609.