United States v. Sam Goody, Inc., and Samuel Stolon, in Re United States of America

MANSFIELD, Circuit Judge

(concurring in part and in the result):

I concur in the result, but solely because we are bound by our decision on rehearing in United States v. Alberti, 568 F.2d 617 (2d Cir. 1977), in which we rejected the argument that § 1291 permits an appeal by the government from an order granting a new trial. Otherwise I would hold that in these circumstances, where the trial judge grossly abused his discretion in granting a new trial despite overwhelming evidence of guilt, § 1291 should be construed to permit a government appeal.

The effect of the district court’s order is to deprive the public of a fairly-won and fully-supported conviction. The grounds advanced by the district judge for granting a new trial (as the majority seems to recognize) are unsupportable. The denial of review therefore works a grave injustice. It was these basic principles that led the Supreme Court to permit appeals, even from technically non-final orders, in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Stack v. Boyle, 342 U.S. 1, 6-7, 72 S.Ct. 1, 4, 96 L.Ed. 3 (1951); and Abney v. United States, 431 U.S. 651, 657-59, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977). In my view the Supreme Court should grant similar relief here.

Despite the jury’s finding, based on ample evidence presented in a long trial, that the appellants are guilty beyond a reasonable doubt of certain of the charges in the indictment, and despite the absence of any rational grounds for upsetting the jury’s findings, the verdict has, by a stroke of the district court’s pen, been forever erased and the appellants are given another bite at the cherry. Should the government be unable, because of the passage of time or lack of prosecutorial resources to reassemble all of the proof for a long and expensive retrial, the guilty appellants will go scot-free. In this vital respect the district court’s order differs from a similar order in a civil case where, even after a new trial ends with a contrary result, the order granting the new trial may then be reviewed and set aside. Bigart v. Goodyear Tire & Rubber Co., 361 F.2d 317, 318 (2d Cir. 1966) (per curiam); Damanti v. A/S Inger, 314 F.2d 395, 398 (2d Cir.), cert. denied, 375 U.S. 834, 84 S.Ct. 46, 11 L.Ed.2d 64 (1963); Junea Square Corp. v. First Wisconsin National Bank, 624 F.2d 798, 806 (7th Cir.), cert. denied, 449 U.S. 1013, 101 S.Ct. 571, 66 L.Ed.2d 472 (1980); Vizzini v. Ford Motor Co., 569 F.2d 754, 759 (3d Cir. 1977).

Moreover, the effect of denying reviewability in the present case is not to avoid delay but to increase it. The public, which has prevailed, is now put to the delay and expense of seeking once more to obtain a conviction even though the jury’s guilty verdict after the first long trial should *28stand. The ironic part is that if the trial judge had only dismissed the counts of which appellants were found guilty rather than grant a new trial, the government would be entitled to appeal as of right under 18 U.S.C. § 3731 and the dismissal would be reversed, leaving the verdicts of guilty to stand and avoiding the waste of another long trial. In my view it is fundamentally unjust to deny appealability simply because the district court granted a new trial rather than dismiss the indictment.

As the majority recognizes, neither the policy against piecemeal appeals nor the Double Jeopardy Clause mandate a rule denying appealability. Nor can the rule be justified on the ground that it conserves judicial resources. Orders granting new trials in a criminal case are rare.1 In most instances the judge would grant a new trial after a guilty verdict only when an egregious error has been disclosed, in which event the government would be unlikely to appeal. To deny review when the district judge articulates no reasonable basis for his conclusion, and the record discloses none, hardly is in the interest of justice.

The majority, after correctly rejecting all other possible arguments for the result it reaches, bases its refusal to interpret § 1291 to allow a government appeal in these circumstances on two grounds. First, it relies on the lack of finality of an order granting a new trial and the failure of such an order to fit within an exception to the finality rule. While an order granting a new trial is not normally thought of as final, the same can be said of the type of orders made appealable under the collateral order doctrine in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and its progeny. In my view the reasons that led the Supreme Court in Cohen to create an exception favor a similar exception for orders granting a criminal defendant a new trial. The government’s inability to obtain review of this order after a retrial makes the district court’s decision to grant a new trial a separable issue; the injustice to the public that occurs when a new trial is granted for no supportable reason makes this an order “too important to be denied review.” Id., 337 U.S. at 546, 69 S.Ct. at 1225.

The second ground relied upon by the majority for denying reviewability is the old maxim that “appeals by the government in criminal eases are not favored and are permitted only if expressly authorized by statute.” Maj. Op. at 23. Reliance on such common law maxims as a substitute for analysis is risky; as Prof. Karl Llewellyn has shown, for virtually every common law maxim there is a contradictory one. K. Llewellyn, The Common Law Tradition 521-35 (1960). Here the simple relevant antidote is that an injustice should not go unredressed. More important, however, the majority’s maxim has been called into question by Congress itself, which, in adopting the Criminal Appeals Act, 18 U.S.C. § 3731, stated that “[t]he provisions of this [Act] shall be liberally construed to effectuate its purposes.” While § 3731 does not provide jurisdiction for this appeal, it is a persuasive response to the maxim that appeals by the government in criminal cases are disfavored.

The circumstances of this case provide compelling evidence of the need for appellate review of orders granting a criminal defendant a new trial. Judge Platt based his decision on three grounds (which he described as the “only” grounds): spillover from the RICO count, the failure of the government to correct so-called “false” testimony by one of its witnesses, and “the possible cumulative adverse affect [sic] that the various unproven charges may have had upon the jurors’ deliberations.” 518 F.Supp. at 1225. None of these reasons withstands analysis. The alleged RICO *29spillover clearly did not hurt the defendants, for the jury acquitted Stolon, the only defendant remaining in the RICO count after the court had dismissed the count as against Goody. The evidence in support of the remaining counts was the same as that in support of the RICO count. Thus the only conceivable harm would have been RICO’s use of the word “racketeering.” But from the beginning the prosecutor made clear that although RICO

“stands for Racketeer Influence and Corrupt Organizations^] . . . that doesn’t mean, ladies and gentlemen, that we are going to be — and I quote, with organized crime or the mob. That’s not what is involved in this case.” (Prosecutor’s opening statement).

Nor does our decision in United States v. Guiliano, 644 F.2d 85 (2d Cir. 1981), require a new trial. In Guiliano we reversed a conviction on a RICO count on the ground that there was insufficient evidence to support it and then ordered that a new trial be held on a separate count because on the facts of that case the RICO evidence did spill over into the jury’s consideration of the substantive count. Since the jury in the present case acquitted on the RICO count and the evidence on the other counts was the same, there could not have been any such prejudicial spillover.

The second ground upon which the district court rested its decision to grant a new trial, the alleged failure of the government to correct in a timely fashion “false” testimony by Agent Ferri that he had destroyed some of his interview notes, is totally without merit. The majority states that it is difficult to show how the defendants

“were prejudiced by Ferri’s testimony, since if it were construed as evidence that notes had been destroyed, it gave the defendants a better jury argument [i.e., that the prosecution had destroyed exculpatory evidence] than did the later clarification that notes had not been destroyed and had been furnished to the defendants.” (Maj. Op. at p. 26 n.8).

This is, however, an understatement. There is no way in which the defendants could have been prejudiced by this testimony, as was confirmed by their decision not to recall Agent Ferri before the jury after being offered the opportunity to do so by the trial judge. Indeed, the defendants’ argument was that the initial testimony (characterized by Judge Platt as “false”) was the truth, and that the “correction” was false. Finally, the original testimony, described by the trial judge as “false,” was corrected by the witness in his subsequent testimony before the jury. Nothing supports the district judge’s conclusion that the defendants may have been prejudiced by these events.

The final ground relied upon by the district court in granting a new trial was that the unproved charges may have had a cumulative prejudicial effect on the defendants. Each count in the indictment in his case, however, referred to a discrete transaction, and the jury was properly charged to consider each count separately. Its acquittal on many counts shows that it was able to distinguish among them. The claim of prejudice is therefore groundless, as we have consistently held under the same circumstances. United States v. Sperling, 506 F.2d 1323, 1342-43 (2d Cir. 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975); United States v. Gaines, 460 F.2d 176, 179-80 (2d Cir.), cert. denied, 409 U.S. 883; 93 S.Ct. 172, 34 L.Ed.2d 139 (1972); United States v. Ferrara, 451 F.2d 91, 97 (2d Cir. 1971), cert. denied, 405 U.S. 1032, 92 S.Ct. 1291, 31 L.Ed.2d 489 (1972); United States v. Adcock, 447 F.2d 1337, 1339 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 278, 30 L.Ed.2d 252 (1971);. United States v. Febre, 425 F.2d 107, 113 (2d Cir.), cert. denied, 400 U.S. 849, 91 S.Ct. 40, 27 L.Ed.2d 87 (1970). Neither the district court nor appellant have pointed to any facts differentiating the present case from those where we have denied a new trial sought on grounds of cumulative prejudicial effect. Moreover, much of the evidence introduced to support these counts would on retrial of the counts on which the defendants were convicted be admissible on the issues of their knowledge and intent. Fed.R.Evid. 404(b). Thus this ground is unsupported.

*30The district judge’s decision to grant these defendants a new trial was therefore a clear abuse of discretion. For the reasons stated, although I concur in the view that mandamus relief is not available and I am forced by Alberti to concur in the result, I do so with reluctance because I believe that Alberti was wrongly decided.

. Although the Administrative Office of the U.S. Courts keeps no records of the number of such orders, an informal survey I have conducted of the offices of the Clerks of several district courts that conduct a large number of criminal trials (the Southern District of California, the Southern District of Florida, the Eastern District of Louisiana, and the District of Maryland) reveals that orders granting new trials after a guilty verdict are few and far between, or, as one Clerk put it, such an order is “a rare bird.”