United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 15, 1999 Decided May 18, 1999
No. 98-3114
United States of America,
Appellant/Cross-Appellee
v.
Maria Hsia,
Appellee/Cross-Appellant
Consolidated with
No. 98-3125
Appeals from the United States District Court
for the District of Columbia
(No. 98cr00057-01)
Elizabeth D. Collery, Attorney, U.S. Department of Justice,
argued the cause for appellant/cross-appellee. With her on
the briefs was Eric L. Yaffe, Trial Attorney.
Nancy Luque and Rangeley Wallace argued the cause and
filed the briefs for appellee/cross-appellant.
Reid H. Weingarten, William T. Hassler and Brian M.
Heberlig were on the brief for amicus curiae Yah Lin Trie.
Before: Williams, Rogers and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Concurring opinion filed by Circuit Judge Rogers.
Williams, Circuit Judge: A six-count indictment charged
Maria Hsia with various offenses deriving from a scheme to
solicit illegal political contributions and disguise them as
lawful ones. Hsia filed numerous motions to dismiss. The
district court denied the motions as to Count One--conspira-
cy to defraud the Federal Election Commission ("FEC") and
the Immigration and Naturalization Service ("INS")--but
dismissed Counts Two through Six--causing false statements
to be made to FEC. 24 F. Supp. 2d 33, 38-47, 52-63 (D.D.C.
1998); 24 F. Supp. 2d 63, 64-65 (D.D.C. 1998). The United
States appeals this dismissal; we reverse. Hsia cross-
appeals the refusal to dismiss Count One; we dismiss the
appeal for lack of appellate jurisdiction.
* * *
The International Buddhist Progress Society ("IBPS"), one
of Hsia's alleged co-conspirators and operator of the Hsi Lai
Temple in Hacienda Heights, California, is a tax-exempt
religious organization incorporated in California. The Feder-
al Election Campaign Act ("FECA") forbids such a corpora-
tion from making contributions in federal election campaigns,
2 U.S.C. s 441b(a); the tax code bars participation in political
campaigns whether they are federal or not, 26 U.S.C.
s 501(b)(3).
Hsia herself is an immigration consultant in the Los Ange-
les area. The indictment alleges a series of actions taken by
her and her co-conspirators to funnel money from IBPS
through straw contributors into various campaigns. Hsia
would either find and solicit individuals to serve as nominal
contributors, see Indictment pp 32, 35, 38, 40(hh), 40(ii), or
ask IBPS to do so, see id.pp 17, 19, 23, 26, 28, 33, 35, 40(h),
40(k), 40(n), 40(q), 40(t), 40(z), 40(cc), 40(gg). (She sometimes
employed herself as such a contributor. See id.pp 15, 30, 38,
40(jj).) When IBPS complied with such a request--often
employing people associated with the Temple as nominal
contributors, see id. p 13(b)--Hsia sometimes forwarded the
checks to the campaign. See id.pp 23, 33, 38, 40(kk). All
nominal contributors, whether solicited by Hsia or by IBPS,
were reimbursed in full by IBPS from its corporate funds.
See id.pp 17, 19, 23, 24, 26, 28, 30, 32, 33, 35, 39, 40(g), 40(i),
40(l), 40(o), 40(r), 40(u), 40(x), 40(aa), 40(dd), 40(ll). The
individuals thus simply served as conduits for IBPS's money.
Hsia also allegedly used conduits to funnel money from two
of her immigration clients--Hsieh San Yeh and Zhe Xu1--to
the Clinton/Gore '96 Primary Committee, Inc. ("Clinton/Gore
'96"). In these instances she instructed others to solicit the
straw donors but conveyed the checks to the committee
herself. See Indictment pp 47-49; Bill of Particulars at 14-
16.
Count One charges that the actions involving IBPS consti-
tuted a conspiracy to defraud the United States, specifically
the FEC and INS, in violation of 18 U.S.C. s 371. See
Indictment p 10. Counts Two through Six charge that Hsia,
by means of her conduit contribution schemes, willfully
caused certain recipients of such contributions--
Clinton/Gore '96, the Democratic National Committee, and
The Friends of Patrick J. Kennedy '96--to make false state-
ments to the FEC in violation of 18 U.S.C. ss 2 and 1001:
these recipients filed reports listing the conduit contributions
as being from their nominal sources, although the true source
was either IBPS, Mr. Yeh, or Ms. Xu. See Indictment pp 43,
46, 49, 52, 55; Bill of Particulars at 14-16.
* * *
Counts Two through Six are based on 18 U.S.C. ss 2(b),
1001(a):
__________
1 Ms. Xu was apparently a foreign national barred from making
contributions by 2 U.S.C. s 441e.
Whoever willfully causes an act to be done which if
directly performed by him or another would be an of-
fense against the United States, is punishable as a princi-
pal.
18 U.S.C. s 2(b).
[W]hoever, in any matter within the jurisdiction of the
executive, legislative, or judicial branch of the Govern-
ment of the United States, knowingly and willfully--
...
(2) makes any materially false, fictitious, or fraudu-
lent statement or representation ...
shall be fined under this title or imprisoned not more
than 5 years, or both.
Id. s 1001(a).2
The most orderly fashion for addressing the district court's
decision is by the elements of willfulness, causation, and
falseness, with respect to all of which it found deficiencies.
"Willfully"
According to the district court, the word "willfully" in
s 2(b) requires the government to show that Hsia knew that
her conduct was unlawful. 24 F. Supp. 2d at 62 n.32; 24
F. Supp. 2d 14, 21 (D.D.C. 1998) (original decision on this
issue); see also United States v. Trie, 21 F. Supp. 2d 7, 14-16
(D.D.C. 1998).3 Believing that the charges here required an
__________
2 This is the current form of s 1001, which applies only to Count
Six. Counts Two through Five, alleging acts occurring before this
current language went into effect, charge violations of the previous
version of s 1001. That stated: "Whoever, in any matter within
the jurisdiction of any department or agency of the United States
knowingly and willfully ... makes any false, fictitious or fraudulent
statements or representations ... shall be fined under this title or
imprisoned not more than five years, or both." The differences
between the versions are not relevant to this case, and we will refer
to the current s 1001.
3 Although the district judge appeared to attribute this
knowledge-of-criminality requirement to s 1001's "knowingly and
unconventional and extreme interpretation of ss 2(b) and
1001, the court found that Hsia could not have known that her
conduct would fall within their grasp.
Although we find no material novelty in the government's
reading of the statutes (see below), our decision on whether
the element of willfulness is adequately alleged does not turn
on this point. We believe that the government need not
prove that Hsia knew her acts to be unlawful; the question
whether she could in fact have had such knowledge is there-
fore irrelevant.
The natural reading of ss 2(b) and 1001 is this: the
government may show mens rea simply by proof (1) that the
defendant knew that the statements to be made were false
(the mens rea for the underlying offense--s 1001) and (2)
that the defendant intentionally caused such statements to be
made by another (the additional mens rea for s 2(b)). See
United States v. Gabriel, 125 F.3d 89, 101 (2d Cir. 1997). The
district court, like the Third Circuit in United States v.
Curran, 20 F.3d 560 (3d Cir. 1994), relied on Ratzlaf v.
United States, 510 U.S. 135 (1994), for its contrary result.
But this extends Ratzlaf too far: that case did not universal-
ize a broad reading of "willfully" and thus overturn the
general rule that ignorance of the law is no excuse. Ratzlaf
found a knowledge-of-criminality requirement in a statute
that independently required the act at issue to be "for the
purpose of evading" various reporting requirements; reading
"willfully violating" there as only requiring intention would
have made it surplusage. Id. at 139-41. In this case, no
such problem exists. We find Ratzlaf's narrow exception
inapplicable and adopt the natural reading of mens rea above.
Accordingly, nothing in the indictment's allegations contra-
dicts the government's capacity to prove the statutorily re-
quired mens rea.
__________
willfully" language, it must, if it exists at all, be a gloss of "willfully"
in s 2(b): no court adopting such a requirement has questioned the
rule that knowledge of criminality need not be shown in direct
s 1001 prosecutions. See United States v. Curran, 20 F.3d 560,
567-68 (3d Cir. 1994) (analyzing issue as s 2(b) requirement).
"Causes"
It is not entirely clear what defects the district court found
in the government's theory of causation. The initial objec-
tion--that "a check is not a statement," 24 F. Supp. 2d at 62-
63--appears not only incorrect (the cases indicate, at most,
that a check does not assert that it will not bounce) but
irrelevant. The false statements here are the political com-
mittees' reports identifying certain listed names as sources of
specific contributions; the names on the checks, together with
the rest of the alleged conduit contribution scheme, could
have "caused" these false statements to be made whether or
not the checks were themselves statements of anything. But
the district court seems also to have had a more general
objection--that the causal link between Hsia's conduct and
the making of false statements was too "attenuated." Id. at
61-62.
Section 2(b) does not, of course, limit by its terms the
particular means by which the defendant may "cause" anoth-
er to commit the act, nor the degree of permissible "attenua-
tion" between these two people's actions. Cf., e.g., United
States v. West Indies Transp., Inc., 127 F.3d 299, 307 (3d Cir.
1997) (defendant may be prosecuted under ss 2(b) and 1001
even if people who actually made false statements are not
criminally liable). The mens rea element of the statute
provides an outer limit on the latter, for a weak or implausi-
ble causal link would make it more difficult to prove that the
defendant brought the effect about "willfully."
Nor is the general scheme of the indictment novel; the
application of s 2(b) to a conduit contribution scheme has
been several times upheld. See Curran, 20 F.3d 560; United
States v. Hopkins, 916 F.2d 207 (5th Cir. 1990); Goland v.
United States, 903 F.2d 1247 (9th Cir. 1990); cf. United
States v. Yermian, 468 U.S. 63, 68-75 (1984) (s 1001 convic-
tion requires no proof that defendant was aware of any
federal agency jurisdiction). In those cases, defendants were
convicted under ss 2(b) and 1001 for employing such a
scheme to conceal their own contributions: they had found
nominal donors, had these conduits make payments to a
committee, and reimbursed them. Here, the money was not
Hsia's; it belonged instead to her immigration clients or to
her co-conspirator IBPS. But Hsia arranged--directly or
indirectly--for the conduits to do their part. That she did
this to channel others' money does not help her. As FEC
regulations direct committees to report "any contribution
made by check, money order, or other written instrument"
"as a contribution by the last person signing the instrument"
"[a]bsent evidence to the contrary," 11 CFR s 104.8(c), the
simple interposition of conduits to sign the checks is certainly
enough to "cause" a committee to make false statements in its
report. The indictment and bill of particulars straightfor-
wardly lay out the government's account of Hsia's affirmative
steps toward that result.
Invocation of the due process clause or the First Amend-
ment does not change the analysis, at least for review of the
indictment. As the case fits comfortably within the clear and
previously accepted scope of ss 2(b) and 1001, there is no
question of notice or vagueness. As for overbreadth, we do
not understand how it might apply here. There is no sugges-
tion that the statutes are facially invalid. While the absence
of any claim that Hsia's activity was itself constitutionally
protected is consonant with the general form of overbreadth
standing, see Board of Trustees v. Fox, 492 U.S. 469, 484
(1989), neither Hsia nor the district court ever specified just
what protected activity could be chilled by the application of
ss 2(b) and 1001 to this case. "Overbreadth" appears, at
bottom, to have been another tag for the court's concern that
the indictment stretched ss 2(b) and 1001 unreasonably far.
We see no constitutional difficulty in use of the statutes
against the conduct alleged here.
"False"
The final strand of the district court's reasoning was its
suggestion that the statements at issue were "literally true."
24 F. Supp. 2d 33, 58.
FECA requires that political committees file periodic re-
ports containing, among other things,
the identification of each--
(A) person ... who makes a contribution to the
reporting committee during the reporting period,
whose contribution or contributions have an aggregate
amount or value in excess of $200 within the calendar
year ... together with the date and amount of any
such contribution.
2 U.S.C. s 434(b)(3). "Contribution" is defined, in relevant
part, as
any gift, subscription, loan, advance, or deposit of money
or anything of value made by any person for the purpose
of influencing any election for Federal office.
Id. s 431(8)(A)(i). FECA also provides that
For purposes of the limitations [on contributions and
expenditures] imposed by this section, all contributions
made by a person, either directly or indirectly, on behalf
of a particular candidate, including contributions which
are in any way earmarked or otherwise directed through
an intermediary or conduit to such candidate, shall be
treated as contributions from such person to such candi-
date. The intermediary or conduit shall report the origi-
nal source and the intended recipient of such contribution
to the Commission and to the intended recipient.
Id. s 441a(a)(8). Finally, FECA specifically states:
No person shall make a contribution in the name of
another person or knowingly permit his name to be used
to effect such a contribution, and no person shall know-
ingly accept a contribution made by one person in the
name of another person.
Id. s 441f.
We are convinced by these latter provisions that
s 434(b)(3)'s demand for identification of the "person ... who
makes a contribution" is not a demand for a report on the
person in whose name money is given; it refers to the true
source of the money. As the committees here did not report
the true sources, their statements would appear to be false.
The district court, for the most part, appears to have
agreed with this analysis. See 24 F. Supp. 2d at 59-60. It
determined, however, that FECA's safe harbor provision, 2
U.S.C. s 432(i), controlled the case. That subsection, added
five years after FECA's original enactment, states:
When the treasurer of a political committee shows that
best efforts have been used to obtain, maintain, and
submit the information required by this Act for the
political committee, any report or any records of such
committee shall be considered in compliance with this
Act.
Id. Because the indictment does not allege that the commit-
tee treasurers had any wrongful knowledge, the district court
found, the statements in the reports must be considered
FECA-compliant (and therefore not false). 24 F. Supp. 2d at
60-61.
The argument assumes that this safe harbor does not
merely provide an affirmative defense for the committee and
its officers but actually modifies the substantive reporting
requirements of FECA. Even if the provision wrought some
substantive amendment, however, it could not be so drastic as
to aid Hsia here. Section 432(i) conditions its relief on the
treasurer's making "best efforts" to ascertain the necessary
information, and FEC has spelled such efforts out in 11 CFR
s 104.7. But not even Hsia argues that the section would
shield a treasurer who went through the motions of the "best
efforts" and then submitted information contrary to facts
known to her. Thus, if the act of filing the report with
conduits listed as contributors were "directly performed by"
Hsia, 18 U.S.C. s 2(b), her actual knowledge of falsity--
required to be shown anyway--would make the statements
culpable regardless of any ritualistic performance of "best
efforts."
In any event, we find no substantive modification. The
statute allows the safe harbor only when the treasurer
"shows" the use of best efforts, suggesting that the provision
only applies to a proceeding against the committee itself or
one in a position to make such efforts on the committee's
behalf. 2 U.S.C. s 432(i). Further, there remains no qualify-
ing language in the actual reporting requirements, and indeed
s 432(i) refers to "the information required by this Act." Id.
Finally, it would make no sense for Congress to allow trea-
surers to rely on the provision of information by others while
at the same time giving others a virtual carte blanche to
provide inaccurate information. We believe s 432(i) does not
benefit those not associated with the committee at issue.
On appeal, amicus Yah Lin ("Charlie") Trie presents an
alternate theory of truth. Trie relies on the FEC forms
themselves, claiming that they did not request identification
of the actual source of the money. This argument might
make some sense if the forms employed terms other than
those of the statute itself, but they do not. Schedule A--the
list of names at issue--is simply an itemized list of "Contribu-
tions (other than loans) From [ ] Individuals/Persons Other
Than Political Committees." This, like the rest of the form,
simply echoes and implements the language of s 434(b)--a
subsection which, as we have noted above, requires that the
true source of money be reported.
We thus reject all arguments that the statements alleged in
the indictment were "literally true."4
* * *
Although Hsia conclusorily restates the theories adopted by
the district court, most of her briefs are devoted to alternate
theories for affirming the dismissal.
Hsia's initial claims are all of First Amendment protection.
Her free exercise arguments (asserted on behalf of IBPS and
its members) we can dismiss immediately: these are--at
most--a basis for a defense at trial, not a legal deficiency in
the indictment. Her free speech argument appears to be
this: since Hsia was simply soliciting political contributions,
__________
4 We also reject Trie's contention, based on his same theory, that
the counts must be dismissed because the FEC forms were "funda-
mentally ambiguous." Read in context, the forms have no such
defect.
her actions here were protected speech; therefore the indict-
ment must be subject to strict scrutiny.
This misframes the issue. The only solicitations alleged
are those of conduit contributions and of nominal "contribu-
tions" from the conduits themselves. Neither is protected.
FECA's reporting requirements were upheld by the Supreme
Court. See Buckley v. Valeo, 424 U.S. 1, 60-68 (1976). Hsia
has not suggested any plausible grounds for a right to tamper
with these reports. Cf., e.g., Goland, 903 F.2d at 1258
(rejecting as frivolous defendant's asserted right to contribute
anonymously via conduits).
Finally, turning to Hsia's argument that FECA constitutes
a pro tanto repeal of ss 2 and 1001, we agree with the district
court that it does not.
We work in these cases under a presumption against repeal
by implication. In United States v. Hansen, 772 F.2d 940
(D.C. Cir. 1985), rejecting an argument that the financial
disclosure requirements of the Ethics in Government Act
effected a pro tanto repeal of s 1001, we said that the
presumption rests on the view "that Congress legislate[s]
with knowledge of former related statutes, ... and will
expressly designate the provisions whose application it wishes
to suspend, rather than leave that consequence to the uncer-
tainties of implication compounded by the vagaries of judicial
construction." Id. at 944-45 (internal quotation omitted).
Thus we will not find repeal absent "clear and manifest"
evidence that it was intended. Id. at 947-48.
Hsia presents no evidence of this sort. Instead, she relies
on our decision in Galliano v. United States Postal Service,
836 F.2d 1362 (D.C. Cir. 1988). There the Postal Service,
exercising its administrative power under the general postal
fraud provisions of 39 U.S.C. s 3005, had attacked as mislead-
ing the name and disclaimers on a solicitation for political
contributions. To the extent FECA set out standards for
these elements of such a solicitation, we held, it displaced the
Service's authority under s 3005.
Hsia reads the case broadly, as indicating that FECA
generally displaces more general statutes. Like the district
court, we disagree. Galliano concerned the relative scope of
jurisdiction for two administrative agencies--FEC and the
Postal Service. The Department of Justice's authority to
enforce general criminal statutes is quite different.5
Unlike the Postal Service, the Department of Justice has
no authority to develop substantive standards of its own. As
a criminal enforcer, it brings cases in federal court, where
judges interpret the underlying statutes without deference to
the Department. See Crandon v. United States, 494 U.S.
152, 177-78 (1990) (Scalia, J., concurring). There is, there-
fore, no risk that Congress might have empowered two bodies
to promulgate conflicting substantive standards--a result that
Galliano presumed Congress would seek to avoid. We thus
rely on our general requirement of clear evidence and find no
repeal.
* * *
On both statutory and First Amendment grounds, Hsia
cross-appeals the district court's refusal to dismiss Count One
(conspiracy). On its face, of course, this refusal is plainly not
a "final decision" over which 28 U.S.C. s 1291 gives us
jurisdiction. Hsia nevertheless suggests two grounds for
appellate jurisdiction: the collateral order doctrine and pen-
dent appellate jurisdiction. We reject both.
To qualify as a final collateral order appealable under
s 1291, the order at issue must, among other things, "be
effectively unreviewable on appeal from a final judgment,"
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)--that
is, it must involve "an asserted right the legal and practical
__________
5 Galliano did not purport to disturb the long-recognized rule
that the power of the Department to prosecute criminal violations is
not displaced merely by the fact of a more focused later enactment,
see Hansen, 772 F.2d at 945-46 (citing cases)--a corollary to the
rule that where various criminal prohibitions intersect, a prosecutor
may choose among them, see United States v. Batchelder, 442 U.S.
114, 123-24 (1979).
value of which would be destroyed if it were not vindicated
before trial." United States v. MacDonald, 435 U.S. 850, 860
(1978). Hsia's asserted rights--principally free speech and
free expression--do not so qualify. Unlike congressional
Speech or Debate immunity, see Helstoski v. Meanor, 442
U.S. 500 (1979), for example, they are not rights to avoid trial
altogether. But see United States v. P.H.E., Inc., 965 F.2d
848, 855 (10th Cir. 1992) (finding that "unique confluence of
factors" made First Amendment-based collateral appeal per-
missible). We apply the collateral order doctrine "with the
utmost strictness in criminal cases," Flanagan v. United
States, 465 U.S. 259, 265 (1984); any rule allowing immediate
appeals for defendants advancing some First Amendment
reason why an indictment should be dismissed would expose a
vast array of criminal trials to interruption.
Hsia alternatively asserts pendent jurisdiction. But in
dictum in Abney v. United States, 431 U.S. 651 (1977), the
Supreme Court appeared to rule out such a theory:
In determining that the courts of appeals may exercise
jurisdiction over an appeal from a pretrial order denying
a motion to dismiss an indictment on double jeopardy
grounds, we, of course, do not hold that other claims
contained in the motion to dismiss are immediately ap-
pealable as well.... [S]uch claims are appealable if, and
only if, they too fall within Cohen's collateral-order ex-
ception to the final-judgment rule. Any other rule would
encourage criminal defendants to seek review of, or
assert, frivolous double jeopardy claims in order to bring
more serious, but otherwise nonappealable questions to
the attention of the courts of appeals prior to conviction
and sentence.
Id. at 662-63. Though the statement is only dictum, we think
it right to take it literally, at least as to defendants' attempted
appeals. Cf. United States v. Zafiro, 945 F.2d 881, 885 (7th
Cir. 1991) (suggesting that pendent appellate jurisdiction may
allow government to challenge, at time of an interlocutory
appeal authorized by s 3731, grant of severance to multiple
defendants). An even partly open door could enable defen-
dants to achieve untoward delay by coupling extra claims with
a weak interlocutory appeal, and thus would give them an
incentive to raise weak claims before the trial court on issues
allowing interlocutory appeals; even where the interlocutory
appeal is brought by the government, as here, we see no
reason to give the defendant a windfall opportunity to delay
proceedings via cross-appeal.
* * *
We reverse the district court's dismissal of Counts Two
through Six, dismiss Hsia's cross-appeal for lack of jurisdic-
tion, and remand the case for proceedings consistent with this
opinion.
So ordered.
Rogers, Circuit Judge, concurring: I join the court in
reversing dismissal of counts two through six, and remanding
the case for trial. Our remand order means that any appel-
late disposition of count one could not resolve the entire case
on appeal. Absent such an efficiency ground for review, or
any other compelling reason to act now rather than after
trial, there is no basis for exercising pendent appellate juris-
diction over Hsia's challenges to count one. The court there-
fore need not decide whether and under what conditions a
court may exercise pendent jurisdiction over interlocutory
appeals in criminal cases that may arise in the future. Con-
sequently, the court's dictum purporting to bar such jurisdic-
tion over claims raised by defendants is unnecessarily broad.
Hsia's pendent appellate jurisdiction claim would fail even
under the standards applicable to civil cases. Addressing her
challenges to count one now would not dispose of the case, see
Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d
1020, 1026-27 (D.C. Cir. 1997), and there is nothing in the
record to suggest that her cross-appeal is one of those "rare
exceptions" where "substantial considerations of fairness or
efficiency" justify exercising pendent jurisdiction. Gilda
Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675, 678-79
(D.C. Cir. 1996). Our remand of counts two through six
demonstrates, moreover, that the issues on cross-appeal are
not so "inextricably intertwined" with those of the jurisdic-
tionally proper appeal that "review of the former ... [is]
necessary to ensure meaningful review of the latter." Swint
v. Chambers County Comm'n, 514 U.S. 35, 51 (1995). In
short, Hsia has not advanced a compelling reason to review
count one before trial.
Hence, the court has no occasion to decide whether exercis-
ing pendent appellate jurisdiction over a criminal defendant's
claim may in some circumstances be appropriate. Contrary
to the court's suggestion, the Supreme Court has not foreclos-
ed such jurisdiction. The court relies on dictum from Abney
v. United States, 431 U.S. 651, 662-63 (1977), that it reads to
hold by negative implication that pendent appellate jurisdic-
tion is not available over claims by defendants in criminal
cases. See opinion at 13. The Supreme Court's subsequent
decision in Swint suggests a less rigid civil-criminal distinc-
tion than this court attempts to extract from Abney. First,
the Swint Court did not characterize Abney as completely
barring pendent appellate review in criminal cases, but rather
as rejecting a rule "loosely allowing" such review. See Swint,
514 U.S. at 49-50. Second, in Swint, a civil case, the Court
noted that Abney's reasoning applied in both civil and crimi-
nal contexts, but went on to permit at least some pendent
jurisdiction in civil appeals. See id. This extension of Abney
to the civil context does not automatically mean that Swint
likewise extends to the criminal context, but suggests that the
Abney dictum may not be a sturdy foundation upon which to
base a categorical limit to this court's appellate jurisdiction.
All of the reasons offered by the court to deny pendent
jurisdiction in criminal appeals would also justify withholding
such review over claims raised by defendants in civil appeals,
see opinion at 13-14, and yet review is available in civil cases
if certain strict standards are satisfied. See, e.g., Swint, 514
U.S. at 46-50; Clinton v. Jones, 520 U.S. 681, 707 n.41 (1997);
Gilda Marx, 85 F.3d at 678. While these standards may
apply more stringently in criminal cases, cf. United States v.
Rostenkowski, 59 F.3d 1291, 1301 (D.C. Cir. 1995), it is not
clear that criminal appeals are so fundamentally different
from civil appeals that a safety-valve to the finality require-
ment applies in one but never in the other, nor that the
asymmetric scheme posited by the court, categorically fore-
closing review only of defendants' claims, even when the
government has also filed an interlocutory appeal, see opinion
at 14, necessarily follows.
Accordingly, I would dismiss Hsia's cross-appeal on the
relatively narrow grounds discussed above, and leave broader
questions for a case that actually raises them.