United States v. E. A. Gregory and Vonna Jo Gregory, G. W. Atkinson and Robert T. Spurlock, Jr.

Citations: 656 F.2d 1132; 1981 U.S. App. LEXIS 17388Docket: 80-7642, 80-7644

Court: Court of Appeals for the Fifth Circuit; September 25, 1981; Federal Appellate Court

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Defendants E. A. Gregory, Vonna Jo Gregory, G. W. Atkinson, and Robert T. Spurlock, Jr. appealed the denial of two pretrial motions: one to dismiss the indictment due to alleged prosecutorial vindictiveness and another to disqualify the trial judge for bias. The United States Court of Appeals for the Fifth Circuit, led by Circuit Judge Roney, determined that neither motion was subject to interlocutory appeal under 28 U.S.C.A. § 1291, which allows review only of final district court decisions. The court emphasized a strong judicial policy against piecemeal appeals, underscoring that all claims of error should typically be addressed in a single appeal after a final judgment to promote judicial efficiency and respect for trial judges' authority. The court also noted the importance of this rule in criminal cases, where delays can undermine the enforcement of criminal law. While the Supreme Court has recognized a narrow Cohen exception for immediate appeals of collateral issues, the defendants failed to demonstrate the exceptional circumstances required for a writ of mandamus for the trial judge's recusal.

A pretrial order denying a motion to dismiss an indictment on double jeopardy grounds is appealable under the Cohen collateral-order exception, as established in Abney v. United States. The Supreme Court recognized that the right against double jeopardy involves protection from both subsequent convictions and successive prosecutions, which would be irreparably compromised if appeals were delayed until final judgment. However, the Court clarified that this exception applies specifically to double jeopardy claims and not to other claims raised in a motion to dismiss. Immediate appellate review is justified for double jeopardy claims due to their unique nature, as opposed to other claims like speedy trial rights, which do not warrant such immediate review. 

In the current case, defendants G. W. Atkinson, Robert Spurlock, E. A. Gregory, and Vonna Jo Gregory were indicted in May 1980 for conspiracy, wire fraud, and willful misapplication of bank funds related to the 1978 collapse of the Wilcox County Bank in Alabama. They contended in their motion to dismiss that there was "prosecutorial vindictiveness," citing comments from the prosecutor and actions by the FDIC to indict them. The district court denied this motion without conducting an evidentiary hearing.

Defendants' claim of prosecutorial vindictiveness does not meet the criteria for immediate review under the Cohen exception, as it does not protect a right requiring urgent attention. They have not demonstrated how delaying their challenge until after final appeal would irreparably harm their rights. Such issues can typically be addressed on appeal following a conviction, supported by multiple case precedents. The claims of prosecutorial misconduct can be remedied at retrial or effectively reviewed on appeal, and the court holds discretion to deny evidentiary hearings based on conclusory allegations. The recent case of United States v. Brizendine reaffirms that motions to dismiss based on prosecutorial vindictiveness are not immediately appealable, emphasizing the need to avoid disruptive interlocutory appeals. Conversely, the Ninth Circuit's decision in United States v. Griffin, which cited the personal impact on defendants awaiting trial, is criticized for its broad applicability to pretrial claims. The Supreme Court has clarified that while pretrial resolutions can be beneficial, only specific claims warrant pretrial resolution based on their unique nature.

Substantial policy considerations discourage the adoption of a rule allowing immediate appeals for claims of prosecutorial vindictiveness following the denial of a motion to dismiss, as effective review is available after final judgment. While some vindictiveness claims could be irreparably harmed by delay, the current case only suggests aggressive prosecution aimed at securing convictions, with no indication of groundless claims. Consequently, an interlocutory appeal is not permitted, leading to the dismissal of the appeal without addressing the merits.

Regarding the motion to disqualify the trial judge, prior court decisions confirm that such claims are not immediately appealable but can be reviewed upon final judgment. Disqualification may be reconsidered through a writ of mandamus, which requires proof of a "clear and indisputable" right and is subject to the court's discretion. The defendants seek a writ based on alleged personal bias from the trial judge, citing comments made by the judge about his financial disclosures and characterizations of prior cases involving the defendants. They argue these statements reflect bias that prejudices the judge's ability to fairly adjudicate the current case, compounded by temporary gag orders that they claim violate statutory and constitutional rights.

The trial judge denied a motion to disqualify himself, explaining that his "choke on it" remark stemmed from discomfort with personal financial disclosure and the typical dynamics between a judge and counsel during lengthy trials. He acknowledged the comment was sharp but maintained it was not indicative of bias or hostility towards the defendants. The legal standard for judicial disqualification requires bias to arise from personal, extrajudicial sources, with an exception for pervasive bias demonstrated through judicial conduct. The judge's comments, while potentially intemperate, did not imply personal bias, and the remaining complaints arose within a judicial context without evidence of pervasive bias. The motion for disqualification could not rely on the judge's rulings in the case or related cases. The trial judge exercised his discretion appropriately in declining to disqualify himself, leading to the denial of the petition for a writ of mandamus. Appeals No. 80-7644 and No. 80-7642 were both dismissed.