United States v. Edwards

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 99-31130

UNITED STATES OF AMERICA

Plaintiff-Appellee

VERSUS

EDWIN EDWARDS; STEPHEN EDWARDS; CECIL BROWN; ANDREW MARTIN; BOBBY
JOHNSON; GREGORY TARVER; AND ECOTRY FULLER

Defendants-Appellants

Appeal from the United States District Court
for the Middle District of Louisiana

March 8, 2000

Before JONES, DUHE’ and WIENER, Circuit Judges.

PER CURIAM:

Edwin W. Edwards, Stephen Edwards, Cecil Brown, Andrew Martin

Bobby Johnson, Gregory Tarver, and Ecotry Fuller (the “Defendants”)

appeal the district court's denial of their motion to lift a court-

imposed gag order. We dismiss this appeal for lack of

jurisdiction.

Three days after the United States indicted the Defendants for

racketeering, the district court entered the gag order on November
9, 1998 pursuant to Local Criminal Rule 53. The gag order

restricts the parties, attorneys and witnesses from making certain

extrajudicial comments. No party initially objected to or filed

motions with the district court to re-consider or to amend the gag

order. Ten months later, the Defendants filed a motion on

September 16, 1999 to lift the gag order. The district court

denied the motion calling it “frivolous.” The Defendants then

filed a notice of appeal arguing that the gag order was imposing “a

continuous prior restraint on speech which [wa]s damaging the

[D]efendants ability to obtain a fair trial.”

This court's jurisdiction is limited to final decisions of the

district court. 28 U.S.C. § 1291. A decision is not final unless

it “ends the litigation on the merits and leaves nothing for the

court to do but execute the judgment.” In Re: Grand Jury Subpoena,

190 F.3d 375, 379 (5th Cir. 1999) (quoting Cunningham v. Hamilton

County, _U.S._, 119 S.Ct. 1915, 1919-20 (1999)). There is no final

judgment in this case.

We have applied the collateral order doctrine, notwithstanding

the absence of final judgment, only when the orders “are

conclusive, resolve important questions separate from the merits,

and are effectively unreviewable on appeal from the final judgment

in the underlying action.” In Re: Grand Jury Subpoena, 190 F.3d at

381 (quoting Cunningham, 119 S.Ct. at 1919). In criminal cases we

have applied the collateral order doctrine “with the utmost

strictness” and have limited it to the denial of only three types

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of motions: (1) motions to reduce bail; (2) motions to dismiss on

double jeopardy grounds, and (3) motions to dismiss under the

Speech or Debate Clause. In Re Grand Jury Subpoena, 190 F.3d at

381 (citing Midland Asphalt Corp. v. United States, 489 U.S. 794,

799 (1989)).

The collateral order doctrine does not apply to the district

court's denial of the Defendants' motion to lift the gag order.1

Therefore, we lack jurisdiction to hear this appeal.

DISMISSED.

1
The Defendants argue that we should extend the collateral order
doctrine to orders that restrain speech in connection with pending
cases. See United States v. Ford, 830 F.2d 596, 598 (6th Cir.
1987). We decline to do so under the circumstances of this case.

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