United States v. Robert A. Aliotta, Wilfred W. Leyland, and William Peters

VAN GRAAFEILAND, Circuit Judge,

dissenting:

Because I believe that this lengthy litigation can be terminated properly by a simple order of affirmance, I voice my disagreement with what I believe to be an unwise holding that we lack jurisdiction to hear the appeal. A brief summary of the pertinent facts will help to frame the issue.

On January 17, 1995, Wilfred Leyland entered into a Plea Agreement in an action having docket number 91-CR-118-A, the indictment in which charged him in pertinent part with possessing and distributing cocaine and marijuana between January 1, 1989 and March 5, 1991. The Agreement contained no reference to a second indictment that was returned against Leyland on January 26, 1993 in an action having docket number 93-CR-26(A). The 1993 indictment charged Leyland in part with possessing with intent to distribute a quantity of marijuana between March 1, 1988 and November 24, 1992, an offense of which Leyland was convicted following a jury trial on September 29,1995.

On September 12,1997, prior to sentencing under the Plea Agreement, Leyland moved, as was his right under Fed. R. Crim. P. 32(e), for permission to withdraw his guilty plea and for dismissal of further prosecution under the 1991 indictment on the ground of double jeopardy. The district court denied Leyland’s application, stating that the indictment alleged a conspiracy facially distinct from the conspiracy alleged in indictment 93-CR-26E[sic].

Leyland appealed the denial of his motion for both the withdrawal of his plea and the dismissal of the indictment on double jeopardy grounds. The district court ordered that sentencing in 91-CR-118-A be stayed “until such time as the Second Circuit Court of Appeals has had an opportunity to rule of [sic] the defen*85dant’s pending interlocutory appeal.” My colleagues’ response to this thoughtful order is to hold that we do not have jurisdiction to hear this appeal. I respectfully disagree.

A guilty plea is not a gossamer trial tactic that readily can be disregarded. It “differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive.” Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). See also Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). It is therefore an ideal candidate for the collateral order doctrine of Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), which permits interlocutory appeals in situations such as this. See Richardson v. United States, 468 U.S. 317, 320-22, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984). As the United States Court of Appeals for the Eleventh Circuit succinctly stated in United States v. Carter, 60 F.3d 1532, 1534 (11th Cir.1995):

The denial of a pretrial motion to dismiss on the ground of double jeopardy is a final judgment that can be appealed to a circuit court of appeals.

Our holdings are in accord. See United States v. Morgan, 51 F.3d 1105, 1109 (2d Cir.1995); United States v. Ahmed, 980 F.2d 161, 163 (2d Cir.1992).

Moreover, the grant or denial of a motion to withdraw such a plea does not create a jurisdictional issue. It is instead a matter for the exercise of sound discretion by the trial court. See United States v. Vega, 11 F.3d 309, 313 (2d Cir.1993); United States v. Gonzalez, 970 F.2d 1095, 1099-1100 (2d Cir.1992).

In sum, I believe that we have jurisdiction to hear Leyland’s appeal and therefore would bring this protracted litigation to a close by affirming the district court’s order.