                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-7-2008

USA v. Kuper
Precedential or Non-Precedential: Precedential

Docket No. 07-1916




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                                               PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                           No. 07-1916


              UNITED STATES OF AMERICA

                               v.

                         MARTIN KUPER,
                                    Appellant


        On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                    (D.C. No. 05-cr-00167-3)
          District Judge: Honorable Paul S. Diamond


    Submitted by the Clerk for Possible Dismissal Due to a
           Jurisdictional Defect February 29, 2008

      Before: SLOVITER, FISHER, and HARDIMAN,
                     Circuit Judges

                     (Filed: April 7, 2008 )
                             _____

Burton A. Rose
Philadelphia, PA l9l30

      Attorney for Appellant

Vineet Gauri
Office of United States Attorney
Philadelphia, PA l9l06

      Attorney for Appellee
                              _____

                  OPINION OF THE COURT




SLOVITER, Circuit Judge.

        The issue before us is whether an order of the District
Court granting, without prejudice, defendant’s motion to dismiss
the indictment based on a violation of the Speedy Trial Act is
appealable at this time. This court has not previously addressed
that issue, although many of our sister circuits have.

                                I.

        On March 23, 2005, Martin Kuper and two co-
defendants, Steven Rockman and Jeffrey Foster, were indicted
on five counts of mail fraud in violation of 18 U.S.C. §§ 1341
and 1342. The trial date was initially set for May 17, 2005.
Defendant Rockman moved for a continuance, which the District
Court granted on April 18, 2005, under the Speedy Trial Act’s
“ends of justice” provision. 18 U.S.C. § 3161(h)(8)(A). Foster
entered a guilty plea on June 12, 2006 and Rockman entered a
guilty plea on February 6, 2007. Both defendants who pled
guilty became cooperating witnesses for the government. This
left Martin Kuper as the sole defendant. By order dated
February 9, 2007, the District Court set the date for Kuper’s trial
as March 26, 2007. On March 6, 2007, Kuper filed a motion to
dismiss the indictment based on a violation of the Speedy Trial
Act. The District Court entered an order on March 19, 2007,
granting Kuper’s motion and dismissed the case without
prejudice. Kuper filed a timely notice of appeal, arguing that the
indictment should have been dismissed with prejudice. See 18
U.S.C. § 3162(a)(1). The Government responded, arguing that
this court lacks jurisdiction over Kuper’s appeal because it is
taken from an order that is not appealable at this time. We turn
to that issue.



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                                II.

        The rule that this court’s jurisdiction is limited to final
orders of the district courts, see 28 U.S.C. § 1291, with only a
few exceptions, is equally applicable in criminal cases. United
States v. MacDonald, 435 U.S. 850, 853 (1978). In MacDonald,
the Court held that a district court’s order denying a defendant’s
motion to dismiss an indictment because of an alleged violation
of defendant’s Sixth Amendment right to a speedy trial was not
appealable because “such an order obviously is not final in the
sense of terminating the criminal proceedings in the trial court.”
Id. at 857.

       To be sure, the Supreme Court has held that certain orders
in criminal cases fall within the collateral order doctrine
enunciated in Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541 (1949), and are therefore appropriate for interlocutory
appeal. See Stack v. Boyle, 342 U.S. 1, 6-7 (1951) (holding
appealable an order denying motion to reduce bail); Abney v.
United States, 431 U.S. 651, 662 (1977) (holding appealable an
order denying pretrial motion to dismiss indictment on double
jeopardy grounds). In MacDonald, the Court explained that if
review of an order denying bail had to await final judgment, the
right would probably be lost irreparably. 435 U.S. at 855 (citing
Stack, 342 U.S. at 12 (Jackson, J.)). Similarly, the right
conferred by the Double Jeopardy Clause would be
“‘significantly undermined if appellate review of double
jeopardy claims were postponed until after conviction and
sentence.’” Id. at 856 (quoting Abney, 431 U.S. at 660).

        In contrast, an order denying a motion to dismiss an
indictment on speedy trial grounds does not represent a final
rejection of a defendant’s claim. Id. at 858. It is not
independent of the outcome of the trial, and the defendant’s
speedy trial right would be satisfied by an acquittal. Id. at 859.
The same considerations apply to the District Court’s
determination that the dismissal of defendant Kuper’s indictment
should be without prejudice. Every court of appeals that has
considered the appealability of an order dismissing an indictment
without prejudice has held such an order is not final and

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appealable under § 1291. See, e.g., United States v. Ford, 961
F.2d 150, 151 (9th Cir. 1992) (per curiam) (dismissal of
indictment is not a final decision within the meaning of 28
U.S.C. § 1291); United States v. Tsosie, 966 F.2d 1357, 1361
(10th Cir. 1992) (dismissal without prejudice is not a final
decision under either 28 U.S.C. § 1291 or the collateral order
doctrine); United States v. Holub, 944 F.2d 441, 442 (8th Cir.
1991) (same); United States v. Jones, 887 F.2d 492, 493 n.2 (4th
Cir. 1989) (court would have lacked jurisdiction to hear any
appeal of dismissal order granted without prejudice under
Speedy Trial Act); United States v. Kelley, 849 F.2d 1395, 1397
(11th Cir. 1988) (per curiam) (any challenge to the dismissal of
an indictment without prejudice must await the defendant’s
subsequent conviction); United States v. Reale, 834 F.2d 281,
282 (2d Cir. 1987) (per curiam) (same); United States v.
Bratcher, 833 F.2d 69, 72 (6th Cir. 1987) (an order dismissing an
indictment is not final and appealable).

        Kuper does not attempt to distinguish MacDonald or the
decisions of the other courts of appeals holding nonappealable
defendants’ claims that the dismissal should have been with
prejudice. Instead, he relies on the Supreme Court’s recent
decision in Zedner v. United States, 547 U.S. 489 (2006). In
Zedner, the defendant had signed a form prepared by the district
court waiving his rights to a speedy trial under the Speedy Trial
Act. Id. at 494. More than four years later, after “a variety of
proceedings,” that included, inter alia, inquiry into the
defendant’s competency, the defendant moved to dismiss the
indictment for failure to comply with the Speedy Trial Act. Id.
at 495-96. The district court denied the motion on the ground
that defendant had waived his Speedy Trial Act rights “for all
time.” Id. at 496. Defendant was thereafter hospitalized, but
several months later he was found to be competent to stand trial,
albeit delusional. Id. The trial proceeded more than seven years
after he was indicted and the jury found him guilty on six counts
of attempting to defraud a financial institution. Id. He was
sentenced to 63 months of imprisonment and the Court of
Appeals affirmed the conviction. Id. at 496-97.

      The Supreme Court granted certiorari to consider the

                                4
standard for analyzing whether a defendant has made an
effective waiver of rights under the Act. Id. at 497. The Court
held, inter alia, that a defendant may not prospectively waive the
application of the Speedy Trial Act. Id. at 500. In reaching that
determination, Justice Alito, writing for the Court, rejected the
government’s estoppel argument, id. at 503-04, and instead
noted the public’s interest in “reducing defendants’ opportunity
to commit crimes while on pretrial release and preventing
extended pretrial delay from impairing the deterrent effect of
punishment,” id. at 501.

        The considerations discussed in Zedner are not directed to
the issue before us, the availability of appellate review. Indeed,
they are not directed to the issue of dismissal with or without
prejudice. It is of some interest that the Court remanded,
“leav[ing] it to the District Court to determine in the first
instance whether dismissal should be with or without prejudice.”
Id. at 509. Nothing in Zedner affects the long-standing
interpretation of the federal courts that the purpose of the Speedy
Trial Act does not encompass a “right not to be tried.” See, e.g.,
United States v. Mehrmanesh, 652 F.2d 766, 769 (9th Cir.
1981); United States v. Wilkes, 368 F. Supp. 2d 366, 368 (M.D.
Pa. 2005) (holding that order denying motion to dismiss an
indictment unappealable). Ultimately, Kuper will be able to
appeal the dismissal of his first indictment if he is re-indicted
and convicted. See, e.g., United States v. Wright, 6 F.3d 811,
813 (D.C. Cir. 1993).

       Because Kuper does not have a right to be free from re-
indictment or a second trial, his additional argument predicated
on personal hardship is not persuasive. “‘[B]earing the
discomfiture and cost of a prosecution for a crime even by an
innocent person is one of the painful obligations of citizenship.’”
United States v. Levine, 658 F.2d 113, 128 (3d Cir. 1981)
(quoting Parr v. United States, 351 U.S. 513, 519-20 (1956)).
Inasmuch as Kuper has no right to be free from re-indictment, he
has no right that would be irreparably lost if he were denied the
opportunity to appeal. The Supreme Court has stated that “it
makes no difference whether the dismissal [of an indictment]
leaves [a defendant] open to further prosecution . . . . The

                                 5
testing of the effect of the dismissal order must abide petitioner’s
trial, and only then, if convicted, will he have been aggrieved.”
Parr, 351 U.S. at 517.

                                III.

       For the reasons set forth, we will dismiss Kuper’s appeal
for lack of jurisdiction.




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