Appeal by the United States from an order of the United States District Court for the Eastern District of New York, Thomas C. Platt, Jr., Judge, granting defendants' motions for a new trial in a criminal case after jury verdicts of guilty; petition by the United States for a writ of mandamus directing the district court to reinstate the jury verdicts, enter judgment, and impose sentence. Appeal dismissed; writ denied.
Before Feinberg, Chief Judge, Mansfield and Kearse, Circuit Judges.
The United States seeks to appeal pursuant to 28 U.S.C. § 1291 (1976) from an order of the United States District Court for the Eastern District of New York, Thomas C. Platt, Jr., Judge, granting the motions of defendants Sam Goody, Inc. ("Goody"), and Samuel Stolon for a new trial after jury verdicts of guilty on charges of interstate transportation of stolen property in violation of 18 U.S.C. § 2314 (1976) and copyright infringement in violation of 17 U.S.C. § 506(a) (1976). Alternatively, the United States petitions pursuant to 28 U.S.C. § 1651 (1976) for a writ of mandamus directing the district court to reinstate the jury verdicts, enter judgment, and impose sentence. Because neither 28 U.S.C. § 1291 nor any other statutory provision authorizes an appeal by the government from an order granting a new trial in a criminal case, we dismiss the appeal for lack of appellate jurisdiction. Because we conclude that the circumstances of this case do not justify the granting of the extraordinary writ of mandamus, we deny the petition.
The pertinent facts may be summarized briefly. Goody operates a large chain of retail record stores in the New York City area. Stolon was its vice president in charge of procurement. Between June and October, 1978, Goody purchased more than 100,000 counterfeit eight-track and cassette tapes, including thousands of copies of the original soundtracks from the films "Saturday Night Fever," "Grease," and "Thank God It's Friday," and of popular recordings such as "The Stranger" by Billy Joel, "Flowing Rivers" by Andy Gibb, and "Slowhand" by Eric Clapton. Most of these counterfeit tapes allegedly were shipped by Goody to an affiliate in Minnesota. On the basis of these events and allegations, Goody and Stolon, along with Goody's president, George Levy, were named as defendants in a sixteen-count indictment charging each of them with one count of racketeering in violation of 18 U.S.C. § 1962(c) (1976) (the "RICO count"*fn1), three counts of interstate transportation of stolen property in violation of 18 U.S.C. § 2314 (the "transportation counts"), and twelve counts of copyright infringement in violation of 17 U.S.C. § 506(a) (the "copyright counts").
The trial of the case lasted approximately one month. At the conclusion of the government's case, the court entered judgments of acquittal in favor of Goody on the RICO count and six of the copyright counts, in favor of Stolon on the same six copyright counts, and in favor of Levy on all counts. After the close of all the evidence, Goody and Stolon moved to dismiss the remaining counts; the court denied these motions, leaving for submission to the jury the three transportation counts and six copyright counts against Goody, and the same three transportation counts and six copyright counts, plus the RICO count, against Stolon. The jury found Goody guilty on two transportation counts and three copyright counts and acquitted it on the remaining transportation count and three copyright counts. The jury found Stolon guilty on one transportation count and one copyright count and acquitted him on the RICO count, two transportation counts, and five copyright counts.
Each defendant moved, pursuant to Fed.R.Crim.P. 29, for a judgment of acquittal on the counts on which he or it had been found guilty, and moved alternatively, pursuant to Fed.R.Crim.P. 33, for a new trial. In an opinion reported at 518 F. Supp. 1223, familiarity with which is assumed, the court denied the motions for acquittal on the ground that the evidence, viewed in the light most favorable to the government, was sufficient to allow reasonable jurors to find each defendant guilty beyond a reasonable doubt. Id. at 1224. Nevertheless, the court granted the motions for a new trial "in the interest of justice," Fed.R.Crim.P. 33, because of the cumulative effect of three factors. First, the court found that the evidence of interstate transportation of the stolen goods was "slim" and that there was a "distinct risk" that the jury had been improperly influenced by the allegations of the RICO count. 518 F. Supp. at 1225. Second, the court accused the government of improperly delaying the correction of what the court characterized as the "false testimony" of an FBI agent who appeared as a government witness, id. at 1225-26, and found that there was a strong possibility that this "false testimony," which was "before the jury for a long period of time," might have influenced the jury's consideration of the rest of the evidence, id. at 1226.*fn2 Third, the court thought it possible that the various unproven charges might have had a "cumulative adverse effect ... upon the jurors' deliberations." Id. at 1225. The court "believe(d) that there was substantial prejudice suffered by the defendants here as a result of the factors enumerated above," id. at 1226, and concluded that it must "exercise its discretion to order a new trial in the interests of justice," id. at 1225.
The government filed its notice of appeal under 28 U.S.C. § 1291, seeking reversal of the order granting a new trial. Thereafter, recognizing that § 1291 may be inapplicable, the government petitioned for a writ of mandamus under 28 U.S.C. § 1651, ordering the district court to reinstate the guilty verdicts and to enter judgments thereon. We conclude that § 1291 does not authorize the present appeal and that the circumstances do not warrant issuance of mandamus.
II. APPELLATE JURISDICTION
Section 1291 provides, in relevant part, that "(t)he courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States...." A final judgment or order is one that conclusively determines the rights of the parties to the litigation, leaving nothing for the court to do but execute the order. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S. Ct. 2454, 2457, 57 L. Ed. 2d 351 (1978). " "(T)he final judgment rule is the dominant rule in federal appellate practice,' " DiBella v. United States, 369 U.S. 121, 126, 82 S. Ct. 654, 657, 7 L. Ed. 2d 614 (1962), quoting 6 Moore, Federal Practice 113 (2d ed. 1953), and is designed to prevent the parties from taking piecemeal appeals, leading to judicial inefficiency and unnecessary delay of the conclusion of the litigation.
An order granting a new trial has none of the earmarks of a final decision. It settles no rights between the parties, but instead initiates a new proceeding to determine those rights. Accordingly, such orders have almost uniformly been held interlocutory,*fn3 and hence nonappealable, both in civil cases, see, e.g., Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S. Ct. 188, 190, 66 L. Ed. 2d 193 (1980), and in criminal cases, United States v. Hitchmon, 602 F.2d 689, 692-93 (5th Cir. 1979) (en banc); United States v. Taylor, 544 F.2d 347, 349 (8th Cir. 1976) ("Courts of appeal will entertain appeals only from final judgment and ... an order granting a new trial is not a final judgment."); 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3919, at 331 (Supp.1982) ("An order that merely grants a new trial ... is not subject to appeal by the government ....").
The final judgment requirement is not entirely inflexible, having been tempered by certain exceptions. The principal judge-made exception, articulated by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949), is known as the "collateral order" doctrine. Under that doctrine, a small class of orders "which finally determine claims of right separable from, and collateral to, rights asserted in the action," and which are too important and too independent of the cause itself to be denied immediate review, may be appealed under § 1291 before final judgment is entered. Id. at 546, 69 S. Ct. at 1225. The government contends that the new-trial order in the present case is a collateral order within the meaning of the Cohen doctrine.
The Cohen doctrine does have some applicability to criminal cases, Carroll v. United States, 354 U.S. 394, 403-04, 77 S. Ct. 1332, 1338, 1 L. Ed. 2d 1442 (1957) (dictum), for although Cohen itself was a civil case, it construed § 1291, which by its terms applies to "all final decisions of the district courts" without differentiation between civil cases and criminal prosecutions. See Arizona v. Manypenny, 451 U.S. 232, 244-45, 101 S. Ct. 1657, 1665-66, 68 L. Ed. 2d 58 (1981); Abney v. United States, 431 U.S. 651, 659 n.4, 97 S. Ct. 2034, 2040 n.4, 52 L. Ed. 2d 651 (1977). The teaching of the Supreme Court, however, is that interlocutory orders "relating to a criminal case (that) may be found to possess sufficient independence from the main course of the prosecution to warrant treatment as plenary orders .... are very few." Carroll v. United States, supra, 354 U.S. at 403, 77 S. Ct. at 1338. Thus, the Carroll Court noted only one prior Supreme Court decision expressly applying the Cohen reasoning to a criminal case, to wit, Stack v. Boyle, 342 U.S. 1, 6, 72 S. Ct. 1, 4, 96 L. Ed. 3 (1951), which held that an order relating to the amount of bail to be exacted was a final collateral order. In addition, the Carroll Court said that
earlier cases illustrated, sometimes without discussion, that under certain conditions orders for the suppression or return of illegally seized property are appealable at once, as where the motion is made prior to indictment, or in a different district from that in which the trial will occur, or after dismissal of the case, or perhaps where the emphasis is on the return of property rather than its suppression as evidence.
354 U.S. at 403-04, 77 S. Ct. at 1338 (emphasis in original; footnotes omitted). More recently, the Court has applied the collateral order doctrine to allow a defendant to appeal immediately an order rejecting his claim that a trial would subject him to double jeopardy in violation of his constitutional rights. Abney v. United States, supra. The courts of appeals, in applying the Cohen-Carroll principle, have permitted government appeals under § 1291 from certain types of sentencing decisions, e.g., United States v. Busic, 592 F.2d 13, 25-26 (2d Cir. 1978); see United States v. United States District Court, 645 F.2d 7 (6th Cir. 1981) (denying mandamus because appeal available under § 1291); United States v. United States District Court, 601 F.2d 379, 380 (9th Cir. 1979) (same), from an order disqualifying the entire United States Attorney's office in a pending prosecution, United States v. Caggiano, 660 F.2d 184, 189-90 (6th Cir. 1981), and from an order appointing a special prosecutor to pursue a prosecution whose dismissal had been sought by the government, United States v. Cowan, 524 F.2d 504, 507 (5th Cir. 1975), cert. denied, 425 U.S. 971, 96 S. Ct. 2168, 48 L. Ed. 2d 795 (1976).
So far as we can determine, however, every court presented with the question has viewed an order granting a new trial as not sufficiently final or collateral to give a right of appeal under the principles of Cohen and Carroll. We share that view. In the present case, the trial judge ordered a new trial "in the interest of justice," Fed.R.Crim.P. 33, because he believed it possible that the jury, which had before it legally sufficient evidence to support the defendants' convictions, might have reached its verdicts of guilty because of factors other than that evidence, namely the presence of the RICO count, the presence of the other unproven charges, and the effect of what the judge called "false testimony" that was belatedly corrected. Such an order for a new trial can hardly be considered "independent from the main course of the prosecution," Carroll v. United States, 354 U.S. at 403, 77 S. Ct. at 1338, for it focused squarely on the course of that prosecution and determined that the prosecution must be repeated. Nor does the order determine an important claim of right with any sort of finality, for the disputed substantive question was not, as the government would frame it, whether the defendants should have a new trial, but rather whether the jury would have found the defendants guilty absent the prejudicial factors cited by the trial judge. The new-trial order does not answer the substantive question but only starts the process by which it may be answered. Hence we conclude that the order granting Goody and Stolon a new trial was not a final collateral order within the meaning of Cohen and Carroll.
The government argues persuasively that some of the factors that militate against our entertaining appeals from new-trial orders in other circumstances do not pertain here. Here, for example, the desire to avoid piecemeal appeals is not a consideration since there can be no review of this new-trial order after a final judgment is entered: if the new trial results in a conviction, the propriety of the new-trial order will have become moot; and if the new trial results in an acquittal, the government will be precluded from appealing because of the Double Jeopardy Clause, e.g., United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 1354, 51 L. Ed. 2d 642 (1977) ("Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that "(a) verdict of acquittal ... could not be reviewed ... without putting (a ...