United States v. Christopher Joseph Ecker, 232 F.3d 348, 2d Cir. (2000)
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Scribd Government DocsUnited States v. Christopher Joseph Ecker, 232 F.3d 348, 2d Cir. (2000)
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Scribd Government Docs232 F.3d 348 (2nd Cir.
2000)
UNITED STATES OF AMERICA, Appellee,
v.
CHRISTOPHER JOSEPH ECKER, Defendant-Appellant.
Docket Nos. 99-1335(L), 00-1187
August Term, 2000
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Argued: November 3, 2000
Decided: November 17, 2000
Appeals from orders of the United States District Court for the Western
District of New York, Richard J. Arcara, Judge, denying motions to
dismiss the indictment on grounds of double jeopardy and breach of plea
agreement.
Order denying double jeopardy motion is affirmed; order denying motion
to dismiss for breach of plea agreement is dismissed for lack of appellate
jurisdiction.
JAMES P. KENNEDY, Jr., Assistant United States Attorney, Buffalo,
New York (Denise E. O'Donnell, United States Attorney for the Western
District of New York, Buffalo, New York, on the brief), for Appellee.
JOHN KENNETH ZWERLING, Alexandria, Virginia (Zwerling &
Kemler, Alexandria, Virginia, Alan S. Hoffman, Buffalo, New York, on
the brief), for Defendant-Appellant.
Before: KEARSE, LEVAL, and SOTOMAYOR, Circuit Judges.
Per Curiam:
Defendant Christopher Joseph Ecker appeals (1) from a February 22, 2000
order of the United States District Court for the Western District of New York,
Richard J. Arcara, Judge, denying his motion to dismiss the indictment against
him on the ground that the present prosecution violates his right under the Fifth
Amendment to the Constitution to be free from double jeopardy ("February
2000 order" or "double jeopardy order"), and (2) from a May 25, 1999 order
denying his motion to dismiss the indictment on the ground that the prosecution
breaches a plea agreement entered into between Ecker and the United States
Attorney's Office for the District of Maryland ("May 1999 order" or "pleabargain order"). We affirm in part and dismiss in part.
2
As to Ecker's contention that the prosecution violates his right to be free from
double jeopardy, we affirm substantially for the reasons stated in Judge
Arcara's February 2000 order. We write only to make clear that the pleabargain order is not yet appealable.
In support of his contention that the plea-bargain order is appealable prior to
the entry of final judgment, Ecker contends that this Court has already made
that determination, and that appealability is confirmed by United States v.
Aliotta, 199 F.3d 78, 82 n.2 (2d Cir. 1999). We reject both arguments.
The procedural background of Ecker's contention that this Court has already
determined that the plea-bargain order is appealable is as follows. Ecker's
motion to dismiss on the ground that the prosecution breaches his plea
agreement was denied in May 1999. Ecker promptly filed a notice of appeal,
but he later moved to withdraw his appeal for lack of appellate jurisdiction.
That motion was granted. When his motion to dismiss on double jeopardy
grounds was denied in February 2000 and he appealed that denial, he moved to
have his previously withdrawn appeal challenging the May 1999 order
reinstated and consolidated with the double jeopardy appeal; a motions panel of
this Court granted those motions. Ecker contends that the order granting
reinstatement is controlling. We disagree. A ruling by a motions panel of this
Court indicating that the Court has appellate jurisdiction does not bar
reconsideration of that issue by the merits panel. See, e.g., Rezzonico v. H&R
Block, Inc., 182 F.3d 144, 149 (2d Cir. 1999). Thus, the jurisdiction question
may be revisited here.
We find no merit in Ecker's contention that the current law of this Circuit
permits immediate appeal of a pretrial order denying a motion to dismiss for an
alleged breach of a plea agreement. In United States v. Macchia ("Macchia"),
41 F.3d 35 (2d Cir. 1994), this Court considered an appeal from an order
denying a motion to dismiss an indictment alleged to have been returned in
violation of a plea agreement that made the defendant immune to prosecution.
We noted that
[i]n this Circuit, we have heretofore permitted interlocutory appeals to assert
[i]n this Circuit, we have heretofore permitted interlocutory appeals to assert
breach of plea agreements alleged to confer immunity. See United States v.
Abbamonte, 759 F.2d [1065, 1070 71 (2d Cir. 1985)], United States v. Alessi,
544 F.2d 1139 (2d Cir.) (Alessi III), cert. denied, 429 U.S. 960, 97 S.Ct. 384,
50 L.Ed.2d 327 (1976); United States v. Alessi, 536 F.2d 978 (2d Cir. 1976)
(Alessi I).
Macchia, 41 F.3d at 38. However, after discussing intervening United States
Supreme Court decisions, including Abney v. United States, 431 U.S. 651
(1977) (allowing interlocutory appeal of adverse double jeopardy ruling), and
Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989) (denying
interlocutory appealability of denial of a motion to dismiss an indictment on the
ground of alleged violation of grand jury secrecy), we concluded as follows:
[T]he appealability rulings in AlessiI, AlessiIII, and Abbamonte have been
eroded, and we overrule those rulings and dismiss this appeal for lack of
appellate jurisdiction.
Macchia, 41 F.3d at 39.
10
Ecker's suggestion that Macchia has, in turn, been overruled by United States v.
Aliotta, 199 F.3d 78 ("Aliotta"), has no merit. The ruling in Macchia, an
opinion circulated to all of the active judges of the Court prior to filing, see 41
F.3d at 39 n.1, was not even discussed in Aliotta. The Aliotta statement on
which Ecker relies reads as follows:
11
"[A]t least in this Circuit, an order denying a colorable claim to dismiss an
indictment for violation of a prior plea agreement may properly be appealed
prior to a final judgment on the entire criminal case in the district court." United
States v. Romero, 967 F.2d 63, 65 (2d Cir. 1992) (citing United States v.
Abbamonte, 759 F.2d 1065, 1071 (2d Cir. 1985)).
12
Aliotta, 199 F.3d at 82 n.2. This statement, however, was dictum, as the Aliotta
appeal dealt not with an allegedly breached plea bargain but rather with a claim
of double jeopardy. Further, the Aliotta panel itself dismissed the appeal before
it for lack of jurisdiction, noting the strong policy disfavoring piecemeal
appeals. See id. at 84. Finally, the Aliotta footnote on which Ecker relies was,
as revealed above, a quote from United States v. Romero, a 1992 case relying
on a 1985 decision (United States v. Abbamonte) that was explicitly
"overrule[d]" by Macchia in 1994, see 41 F.3d at 39.
13
We conclude that Aliotta did not disturb the holding of Macchia. The law of
13
We conclude that Aliotta did not disturb the holding of Macchia. The law of
this Circuit remains that an order denying a motion to dismiss on the ground of
an allegedly breached plea agreement is not appealable prior to the entry of
final judgment. Accord United States v. Green, 139 F.3d 1002, 1004 (4th Cir.
1998); United States v. Ledon, 49 F.3d 457, 459-60 (8th Cir. 1995); United
States v. Crosby, 20 F.3d 480, 487 (D.C. Cir.), cert. denied, 513 U.S. 883
(1994); United States v. Eggert, 624 F.2d 973, 975-76 (10th Cir. 1980). We
have considered all of Ecker's arguments in support of a contrary result and
have found them to be without merit. The appeal in No. 99 1335 is dismissed
for lack of appellate jurisdiction.
14
We have considered all of Ecker's contentions in No. 00 1187, challenging the
February 2000 double jeopardy order and have likewise found them to be
without merit. That order is affirmed.
