ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (Crim. No. 80-00112)
Before Adams, Rosenn and Higginbotham, Circuit Judges.
The primary question before us is whether a pretrial order of a district court denying a motion to dismiss an indictment on statute of limitations grounds provides a proper basis for an interlocutory appeal. Because we conclude that the pretrial order here is not a final decision for purposes of § 1291, we dismiss the appeal.
In March 1980 the government brought a nine-count indictment against appellant Paul Levine, alleging misapplication of funds from the Yellow Cab Company of Philadelphia, in violation of 18 U.S.C. § 660.*fn1 Levine moved to dismiss the indictment on the ground that the five year statute of limitations governing § 660 offenses barred prosecution of all nine charges of embezzlement.
The history of the case goes back to August 1975, shortly after settlement of a civil suit over the control of the Yellow Cab Company. At that time, the F.B.I. commenced an investigation of Levine, who previously had been the chairman and chief executive officer of the Company. Two years later the F.B.I. referred the matter to an Assistant United States Attorney who initiated grand jury proceedings. Within a year the case was transferred to the Department of Justice Strike Force and assigned to Edward Levitt, who was already engaged in a separate examination of Yellow Cab's activities.
Levine became aware of the Strike Force's investigation and in May 1978 his counsel, Lawrence Lesser, contacted Levitt about the status of the investigation. As found by the district court, Lesser and Levine attempted to convince Levitt that Levine's activities had no criminal aspects. Levitt, however, was unpersuaded. Nevertheless, Levitt indicated he would be willing to explore a plea agreement, whereby Levine might avoid indictment or limit his criminal exposure. Levitt also raised the possibility of waiving the statute of limitations and referred Lesser to the case of United States v. Wild, 179 U.S. App. D.C. 232, 551 F.2d 418 (D.C.Cir.), cert. denied, 431 U.S. 916, 97 S. Ct. 2178, 53 L. Ed. 2d 226 (1977), in which the Court of Appeals for the District of Columbia Circuit had recently held that a statute of limitations was waivable and, therefore, not a jurisdictional bar to prosecution.
Discussions ensued concerning what a waiver would involve and what information Levine might offer. The government, seeking a guilty plea, and Lesser, who wanted a nolo contendere disposition, were initially unable to reach any agreement. Because Lesser's expertise lay in the corporate field, Levine wanted additional time to consider the plea agreement and waiver proposals. After Levine consulted Donald Goldberg, an attorney specializing in criminal law, regarding the implications of a waiver of the statute of limitations, Levine, Lesser and Levitt met on July 5, 1978 and executed a waiver agreement. It reads:
WAIVER OF STATUTE OF LIMITATIONS
PAUL LEVINE, a person who could be indicted in the United States District Court for the Eastern District of Pennsylvania on various counts of violation of Title 18, United States Code, Section 660, to wit, on various counts of embezzling, abstracting, wilfully misapplying, wilfully admitting to be misapplied and wilfully and knowingly converting monies, funds and other assets of the Yellow Cab Company of Philadelphia and the Yellow Cab Company of Camden, both of which are common carriers, during the period in which PAUL LEVINE operated and controlled the said companies, that is, during the period from on or about February 28, 1973, through on or about March 12, 1975,
HAVING BEEN ADVISED of the nature of the potential charges and of his rights, and having been expressly advised that the statute of limitations as set forth in Section 3282 of Title 18, United States Code, for the offenses which could be charged against him as specified above is five (5) years from the date of the occurrence of each of the alleged violations, and having been expressly advised that he could not be prosecuted for any of the above-described offenses which occurred more than five (5) years from the date of indictment absent his express waiver of the statute of limitations,
DESIRING that an indictment against him not be immediately returned but that he be given a period within which to discuss this matter with his attorney, in the hope and belief that this matter may be settled in a manner satisfactory to all parties,
HEREBY WAIVES the five (5) year statute of limitations with regard to any indictable violation enumerated in Title 18, United States Code, Section 660, in the event that the statute of limitations as to any particular offense would, subsequent to July 4, 1978, serve as a bar to prosecution for said offense, and consents and agrees that should these charges be brought against him, either by Information or Indictment, he shall not raise the statute of limitations as a defense in said criminal proceedings. In so doing, PAUL LEVINE does not waive any defense based upon the statute of limitations with regard to any offense as to which a statute of limitations would be a bar as of July 4, 1978.
Despite the rather clear language of the waiver, some ambiguity nonetheless surrounds it. As drafted by the government, the arrangement appears to be intended solely for Levine's benefit to afford him an opportunity to discuss with counsel how to proceed in order to achieve a more favorable disposition of the matter. Levine, however, contends that the government coerced his acceptance of the waiver by representing that an indictment was imminent. He argues that the waiver served the government's purposes as well, since it would enable Levitt to test what evidence Levine could offer and provide time to determine whether a nolo plea would be acceptable to the Justice Department.
Lesser and Levitt continued their talks, and various trade offs were discussed but never consummated. Then, in December 1978, Levitt learned that the Justice Department would not approve the nolo plea which Lesser sought. At that point communications came to a halt. In crediting Levitt's testimony that Lesser would contact Levine and then recontact Levitt the trial court found Lesser responsible for the breakdown in the negotiations in February 1979. Presumably, Levine and Lesser decided it was not in their interest to continue to bargain with Levitt who, they hoped, would lose interest if not reminded of the matter.
An indictment was returned in March 1980, more than a year after the negotiations ended. Because Levine's actions, and not the government's, largely accounted for the delay, the district court found that the time period was not so lengthy as to vitiate the waiver. Further, the trial judge concluded that the waiver was not a device to gain a tactical advantage over the accused or to avoid the government's obligation to prosecute reasonably promptly. The court explicitly found that Levine was not prejudiced by the circumstances.
Ultimately, the district court concluded that the first three counts in the indictment, covering acts through July 1973, were time-barred. The district judge reasoned that the waiver could not apply to these counts for which the government would not, as a practical matter, have been able to obtain an indictment but for the waiver. Employing the same logic, the district court determined that, had the government not engaged in good faith negotiations and forborne prosecution in reliance on the waiver, it would have been prepared to indict Levine on the remaining six counts, which related to more recent events, before the statutory period had run. Therefore, with respect to counts four through nine, the trial judge, in a pretrial order, denied Levine's motion to dismiss the indictment on statute of limitations grounds. Levine appeals from this pretrial order.
At the threshold, we are obligated to address a novel jurisdictional issue: whether in a criminal case a pretrial denial of a motion to dismiss on statute of limitations grounds is immediately appealable under the collateral order exception to the final judgment rule.
A fundamental principle of federal appellate jurisdiction, adopted in the First Judiciary Act, requires that review of nisi prius proceedings await their termination by final judgment.*fn2 Currently embodied in 28 U.S.C. § 1291, this congressional rule of finality, as well as the statutory policy against piecemeal appeals, has been applied with particular rigor in criminal cases because "the delays and disruptions attendant upon intermediate appeal are especially inimical to the effective and fair administration of the criminal law." DiBella v. United States, 369 U.S. at 126, 82 S. Ct. at 657, quoted in Abney v. United States, 431 U.S. 651, 657, 97 S. Ct. 2034, 2039, 52 L. Ed. 2d 651 (1977). Passage of time hampers the defendant's right to a speedy trial and his ability to defend himself, and is also antithetical to the public's concern to prosecute offenders quickly and the government's ability to prove its case. See United States v. McDonald, 435 U.S. 850, 854, 98 S. Ct. 1547, 1549, 56 L. Ed. 2d 18 (1978); Dickey v. Florida, 398 U.S. 30, 42, 90 S. Ct. 1564, 1571, 26 L. Ed. 2d 26 (1970) (Brennan, J., concurring) (interests protected by Speedy Trial Clause).
The Supreme Court has carved three carefully calibrated exceptions from the prohibition against piecemeal appeals generally observed in criminal proceedings. In each instance, the collateral order doctrine, as articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S. Ct. 1221, 1225-26, 93 L. Ed. 1528 (1949), was transferred from its original civil setting to the criminal context. The district court in Cohen had determined that a state statute requiring a plaintiff in a stockholder's derivative action to post security did not apply in federal court. Defendants sought immediate review of ...