Opinion
No. 04-40008-01-SAC.
August 11, 2004
MEMORANDUM AND ORDER
The case comes before the court on the defendant's pro se filing of a pleading entitled "David G. Pflum's Status Report." This pleading was filed on August 10, 2004, at 4:10 p.m. The status conference in this case is scheduled to occur on August 11, 2004, at 11:00 a.m. In this pleading, the defendant posits that upon the filing of his notice of appeal from the order denying his motion to dismiss for retaliatory, selective, and vindictive prosecution this court was automatically divested of further jurisdiction pending a decision on appeal. In his motion to dismiss, the defendant alleged the government brought this prosecution to chill his exercise of the First Amendment right to litigate. Asserting a right not to be tried, the defendant argues the court's order denying his motion to dismiss is subject to the collateral order doctrine. In particular, the defendant asserts his First Amendment claim is a right of exceptional importance that must be resolved now instead of waiting for the close of the criminal proceedings. As there is no express judicial finding of record that the defendant's appeal is frivolous, nor even a request from the government for such a finding, the defendant insists the court has been divested of jurisdiction upon filing of his notice of appeal on July 8, 2004. Due to the immediate need to address this jurisdictional issue prior to the status conference scheduled to occur less than a day after the defendant's filing, the court will rule without waiting for the government's response.
Generally, the court of appeals exercises jurisdiction over appeals from "final decisions" from district courts, 28 U.S.C. § 1291, which in criminal cases, means the defendant must await conviction and sentencing before taking an appeal. Flanagan v. United States, 465 U.S. 259, 263 (1984). Under the judicially established collateral order doctrine, the Supreme Court recognizes certain limited exceptions for orders meeting the following three requirements: "(1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) effectively unreviewable on appeal from a final judgment." Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989) (quotation marks and citation omitted). In criminal cases, the "exception is applied `with the utmost strictness.'" United States v. Ambort, 193 F.3d 1169, 1171 (10th Cir. 1999), cert. denied, 528 U.S. 1190 (2000).
In United States v. Ambort, the defendants relied on the First Amendment right to petition for redress of grievances to argue their "right not to be tried" merited immediate review under the collateral order doctrine. 193 F.3d at 1171. The Tenth Circuit summarily rejected this argument:
The defendants in Ambort were charged with operating an organization that gave seminars instructing attendees how to file tax returns as "nonresident aliens" so as to be exempt from most federal income taxes. The defendants were indicted on one count for conspiracy to defraud the United States by assisting in the preparation of false tax returns and on seventy counts of aiding and assisting in the filing of false tax returns. The defendants filed a motion to dismiss claiming a right not to be tried for violating tax laws when they were simply encouraging others to make a lawful challenge of the government's interpretation of the tax laws.
Defendants have the burden of establishing the legal and factual basis for such a right. As the Supreme Court has noted, "§ 1291 requires courts of appeals to view claims of a `right not to be tried' with skepticism, if not a jaundiced eye." Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 873 (1994). . . . Nowhere in the Constitution or laws of the United States is there an "explicit statutory or constitutional guarantee" of a right not to be tried for ordinary speech, even if otherwise protected by the First Amendment. . . .
This analysis "reflects the crucial distinction between a right not to be tried and a right whose remedy requires the dismissal of charges. The former necessarily falls into the category of rights that can be enjoyed only if vindicated prior to trial. The latter does not." Hollywood Motor Car Co., 458 U.S. [263] at 269 [(1982)] (citation omitted). Accordingly, First Amendment defenses like those asserted here are adequately safeguarded by review after any adverse final judgment. See, e.g., United States v. Knapp, 25 F.3d 451, 457 (7th Cir. 1994); United States v. Kuball, 976 F.2d 529, 531-32 (9th Cir. 1992); United States v. Citrowske, 951 F2d 899, 900-01 (8th Cir. 1991).
Defendants analogize their situation to the "unusual, perhaps unique confluence of factors" present in United States v. P.H.E., 965 F.2d [848] at 855 [(10th Cir. 1992)]. P.H.E. is distinguishable. In that case, federal prosecutors engaged in a nationwide campaign against pornography. The P.H.E. holding rests upon a finding that this campaign was "designed to use the burden of repeated criminal prosecutions to chill the exercise of First Amendment rights." Id. at 855. A review of the record confirms that, at this stage, Defendants have made no such showing. Cf. Pleasant v. Lovell, 974 F.2d 1222, 1223 (10th Cir. 1992) (no evidence "that [governmental] defendants motive was to harass or disrupt the NCBA in any legal political pursuits"). Thus, no factual predicate exists for the invocation of P.H.E. 193 F.3d at 1171-72. (quotation and footnote omitted). When the defendants in the Ambort case made a second attempt to take an interlocutory appeal asserting new evidence of a pre-textual prosecution, the Tenth Circuit again rejected the appeal and further circumscribed the holding in P.H.E.:
This time the defendants also asserted the government was "waging a vindictive prosecution against them, motivated by a desire to chill their First Amendment rights." United States v. Ambort, 43 Fed. Appx. 263, 2002 WL 1647232 at *1 (10th Cir. July 24, 2002).
In P.H.E. we held that a defendant has a First Amendment "right not to be tried" in the "unusual" and "unique" case where there is "substantial evidence" that the prosecution is pre-textual and based on "an extensive government campaign . . . designed to use the burden of repeated criminal prosecutions to chill the exercise of First Amendment rights." 965 F.2d at 855. Concluding that the "right not to be tried" would be "lost, probably irreparably, if review had to await final judgment," we allowed the defendant's interlocutory appeal. Id. at 855 (quotation omitted).United States v. Ambort, 43 Fed. Appx. 263, 2002 WL 1647232, at *1 n. 2 (10th Cir. July 24, 2002), cert. denied, 537 U.S. 1076 (2002).
The collateral order exception recognized in P.H.E., as subsequently interpreted and applied by the Tenth Circuit in Ambort, does not extend to the order in this case. In other words, the defendant Pflum is unable to prove the existence of a "right not to be tried" as was articulated in P.H.E. Unlike the accused in P.H.E., the defendant Pflum cannot claim the prosecution here is a direct attack on his exercise of First Amendment rights. See United States v. Pottorf, 828 F. Supp. 1501, 1502-03 (D. Kan. 1993) (Stay denied on interlocutory appeal of motion to dismiss for discriminatory and vindictive prosecution of federal income tax violations). At most, the defendant only alleges a retaliatory prosecution because he exercised his right to redress grievances in another context. Thus, the differences between the instant case and P.H.E. are many, obvious, and material. First, the defendant Pflum is not being prosecuted for his First Amendment activities. Second, Pflum's allegations of retaliatory prosecution of tax crimes hardly make this case "unusual" and "unique." Third, this is not a case where there is "substantial evidence" of a pre-textual prosecution as demonstrated by the court's prior ruling that defendant had not even carried his threshold burden of proving actual vindictiveness or a realistic likelihood of vindictiveness. Unable to bring his appeal within the very small umbrella of P.H.E., the defendant has appealed from an order that does not met the strict requirements of the collateral order doctrine.
The holding in P.H.E. must be narrowly read and applied so as not to conflict with the Supreme Court's decision in United States v. Hollywood Motor Car Co., 458 U.S. 263 (1982), which refused to recognize as immediately appealable an order that denied a motion to dismiss asserting prosecutorial vindictiveness based on a modification to the original indictment after the defendants moved for a change of venue. The Court observed:
"The right asserted by respondents is simply not one that must be upheld prior to trial if it is to be enjoyed at all. As noted in [United States v.] MacDonald, [ 435 U.S. 850 (1978)] supra, there is a superficial plausibility to the contention that any claim, particularly a constitutional claim, that would be dispositive of the entire case if decided favorably to a criminal defendant, should be decided as quickly as possible in the course of the litigation. but if such a principle were to be applied, questions as to the constitutionality of the statutes authorizing the prosecution and doubtless numerous other questions would fall under such a definition, and the policy against piecemeal appeals in criminal cases would be swallowed by ever-multiplying exceptions. It is only a narrow group of claims which meet the test of being `effectively unreviewable on appeal from a final judgment,' and the claim of prosecutorial vindictiveness is, we hold, not one of them."458 U.S. at 270.
The court's prior order states: "Other than the government's delay in commencing the criminal prosecution, the court finds no evidence on which even to couch an argument of vindictive prosecution. Under the facts of this case, in particular the nature and extent of the defendant's failure to file income tax returns and to pay income taxes, the court deems it fanciful and not realistic to attach any inference of vindictiveness to the government's delay." (Dk. 54, p. 11).
Unquestionably, "an effective notice of appeal transfers jurisdiction from the district court to the court of appeals." Howard v. Mail-Well Envelope Co., 150 F.3d 1227, 1229 (10th Cir. 1998) (citing Stewart v. Donges, 915 F.2d 572, 575 (10th Cir. 1990)), cert. denied, 525 U.S. 1019 (1998). To effect this transfer of jurisdiction, the appeal must be taken from an appealable final order or an appealable collateral order. Stewart, 915 F.2d at 575. Put another way, "no transfer occurs if the appeal is taken from a nonappealable order." Howard, 150 F.3d. at 1229 (citations omitted); see United States v. DeFries, 129 F.3d 1293, 1302-03 (D.C. Cir. 1997); United States v. Mala, 7 F.3d 1058, 1061 (1st Cir. 1993), cert. denied, 511 U.S. 1086 (1994). In light of the controlling precedent of Ambort, P.H.E. and Hollywood Motor Car, the court concludes that its prior order is not appealable and, therefore, no transfer of jurisdiction occurred upon the defendant's filing of the notice of appeal.
Even if this court were able to find that "a right not to be tried" existed upon the denial of a motion to dismiss asserting a prosecution impermissibly motivated to retaliate against a defendant's exercise of his First Amendment right to redress of grievances, this court would apply the frivolousness exception to the general divestment-of-jurisdiction rule. See Kamplain v. Curry County Board of Com'rs, 159 F.3d 1248, 1250 (10th Cir. 1998); United States v. Hines, 689 F.2d 934, 936-37 (10th Cir. 1982). The court's prior order is replete with analysis showing the defendant's allegations and arguments of a vindictive prosecution to be untenable. Here are several examples. The defendant's asserted inference of an retaliatory intent from a letter exchanged between government attorneys "does not qualify as even arguable." (Dk. 54, p. 7). "[T]he court finds no evidence that shows actual vindictiveness or a realistic likelihood of vindictiveness as to sustain a presumption of vindictiveness." (Dk. 54, p. 8). "[W]hat the defendant asserts as evidence of a bad faith motive is simply an allegation." (Dk. 54, p. 8 n. 1). "The defendant has not come forth with any facts or allegations that would take this case outside the typical legal framework governing vindictive prosecution claims." (Dk. 54, p. 9). "The evidence attached to the defendant's motion do not establish circumstances from which one could reasonably infer a realistic likelihood of vindictiveness." (Dk. 54, p. 10). As these examples demonstrate, the court found no evidence to support the defendant's allegations of vindictiveness and found no reasonable inferences of prosecutorial vindictiveness to be drawn from the argued circumstances. On these findings, it necessarily follows that the court would consider an appeal from them to be frivolous.
IT IS THEREFORE ORDERED that the court retains jurisdiction of this case pending the defendant's interlocutory appeal of the order (Dk. 54) denying his motion to dismiss.