Aldisert, James Rosen and Hunter, III, Circuit Judges.
The defendants, Peter Crusco and Philip Cimmino, were arrested on August 13, 1971 and indicted on December 2, 1971 for conspiracy to distribute narcotics and for the substantive offense of selling heroin. They were charged with violating 21 U.S.C. §§ 812, 841(a) (1) and 841(b) (1) (A).
The day after the indictment was returned, the defendants proceeded before Judge Whipple and filed an order to show cause (1) why the United States Attorney for the District of New Jersey "ought not to be precluded from continuing the prosecution," or (2) "why any Indictment or Indictments which may have been handed up in the within matter ought not to be dismissed." By the terms of the order submitted for court approval, the United States Attorney for the District of New Jersey would have been "permanently enjoined and restrained" from proceeding to seek an indictment.*fn1 The appellants claimed that such injunctive relief was warranted because the Government had allegedly failed to fulfill its part of a "bargain" which all the parties to this appeal had made in September, 1971. Crusco and Cimmino contended that, under the terms of this "bargain" they gave to the Government "tapes and confidential communications" which were "crucial to their defense" in order to help the Government make a comprehensive investigation of whether a Government agent had acted illegally in pursuing the appellants. The defendants were also allegedly required to "refrain from filing motions" so that the Government's investigation could be expedited. In return, the Government was said to have promised them a "comprehensive full report of the results of the investigation" and dismissal of the indictment in the event that illegality were uncovered. The appellants filed for injunctive relief on the ground that the Government had breached this "bargain" and that the Government's action "has made any preparation of a defense an impossibility."*fn2
The judge denied the relief requested in the order "without prejudice to proceed by notice of motion." The present appeal is taken from this denial.
After the appellants filed their appeal and unsuccessfully sought a stay of the district court proceedings pending the disposition of the appeal, they filed a notice of motion for a restraining order, or in the alternative a dismissal of the indictment. A hearing was held on February 14, 1972, after which the parties entered into a February 25th consent order providing that there be an evidentiary hearing on March 15, 1972 so that the court could determine the facts relevant to the appellants' claim for relief.*fn3
The appellants assert that they are entitled to review of the judge's denial of the order to show cause on the basis of 28 U.S.C. § 1292(a) (1), which permits appeals from motions for injunctive relief.*fn4 To prevail on this contention, they must demonstrate that the order denied by the district judge was in fact an injunction, because denials of temporary restraining orders are generally not appealable. Richardson v. Kennedy, 418 F.2d 235 (3d Cir. 1969); United States v. Chelsea Towers, 404 F.2d 329, 330 (3d Cir. 1968); Pennsylvania Motor Truck Association v. Port of Philadelphia Marine Terminal Association, 276 F.2d 931 (3d Cir. 1960). Cf. Pan American World Airways v. Flight Engineers' International Association, 306 F.2d 840, 843 (2d Cir. 1962); Perlman v. United States, 247 U.S. 7, 13, 38 S. Ct. 417, 62 L. Ed. 950 (1918).
The order to show cause submitted by the appellants to the district judge requested the issuance of a permanent injunction, prior to a hearing and without notice to the Government. The relief requested is not available, however, through an ex parte procedure. Judge Whipple accordingly denied the order to show cause and directed the appellants to seek their injunctive relief by way of a notice of motion. F.R.Crim.P. Rule 12(a).
Why the appellants believed they could obtain a permanent injunction without notice or a hearing is beyond our understanding. Even if we assume the appellants' erroneous premise that injunctive relief is as available in criminal matters as it is in civil practice, the appellants were nonetheless not entitled to obtain more than a temporary restraint through an ex parte proceeding.*fn5 Despite the confusion wrought by the appellants' unorthodox and, indeed, impermissible hybrid application for an order to show cause, it is clear that the district court did not deny injunctive relief. While refusing a temporary restraint, the district court explained to the appellants that they could still give notice, obtain the requisite hearing and seek an injunction of the prosecution and a dismissal of the indictment.*fn6 Both parties consented to a hearing scheduled for February 25, 1972, but it was postponed pending this appeal.
The denial of the order to show cause cannot properly be construed as a § 1292(a) (1) denial of injunctive relief. The motions for injunctive relief and dismissal of the indictment*fn7 are still before the district court and are yet to be decided. What the judge did was simply to inform the appellants that there was no ex parte short cut to a permanent injunction and that if they wanted to try to enjoin the Government or have the indictment dismissed, they would have to proceed via notice of motion, the normal route.
We find that the judge's denial of the order to show cause was not appealable within the meaning of § 1292(a) (1). Richardson v. Kennedy, supra. A mandate will issue to ...