160 F.

3d 33

UNITED STATES, Appellee,

v.
Lee H. LEICHTER, Defendant, Appellant.
UNITED STATES, Appellee,
v.
John F. CVINAR, Defendant, Appellant.
UNITED STATES, Appellee,
v.
David W. PRIGMORE, Defendant, Appellant.
Nos. 97-1358, 97-1359, 97-1478.

United States Court of Appeals,

First Circuit.
Heard May 8, 1998.
Decided Nov. 3, 1998.

Richard G. Taranto, with whom Farr & Taranto, Robert D. Keefe, Daniel
W. Halston, Jason T. Sherwood, Hale and Dorr LLP, Andrew Good,
Harvey A. Silverglate, Silverglate & Good, William H. Kettlewell, Amy
Baron-Evans, Michael B. Galvin and Dwyer & Collora, LLP were on
brief, for appellants.
Stephen Andrew Higginson, Special Assistant United States Attorney,
with whom Mark W. Pearlstein, Acting United States Attorney, and
Michael Loucks, Assistant United States Attorney, were on brief, for
appellee.
Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge,
and BOUDIN, Circuit Judge.
TORRUELLA, Chief Judge.

Defendants Lee H. Leichter, David W. Prigmore, and John F. Cvinar, former

employees of C.R. Bard, Inc. ("Bard"), who were charged in a multi-count
indictment arising from Bard's manufacturing and distribution of heart

catheters, appeal their convictions on one count each of conspiring to defraud

the Food and Drug Administration ("FDA") by impairing its lawful
governmental functions. They were each sentenced to 18 months of
imprisonment and two years of supervised release. However, the execution of
their sentences was stayed pending the outcome of appeal. Appellants contend
that, at this time, we lack appellate jurisdiction to consider their appeal. We
find that the existence of other untried counts against the appellants renders the
district court's judgment on the conspiracy count non-final. Accordingly, we
dismiss this matter without prejudice to any subsequent appeal upon entry of
final judgment by the district court.
I. BACKGROUND
2

Appellants Leichter, Prigmore, and Cvinar (and other defendants) were indicted
on over 390 counts stemming from Bard's manufacture and sale of non-FDAapproved heart catheters.1 Count One of the indictment charged appellants with
conspiring to defraud the government in violation of 18 U.S.C. 371 through
an allegedly fraudulent scheme involving the sale of adulterated heart catheters
and the concealment of material facts from the FDA. The district court sua
sponte decided to proceed to trial against appellants only as to Count One,
deferring further proceedings on the remaining counts. After two months of
trial, a jury returned a verdict finding appellants guilty of the conspiracy count.
The district court sentenced each appellant to 18 months of imprisonment and
two years of supervised release, and imposed a special assessment of $50 for
each conviction. The execution of the sentences have been stayed pending the
outcome of appeal, and none of the appellants is now in prison. Following
appellants' conviction on the first count, the government dismissed all but 38 of
the other counts against them. On March 13, 1997, the district court entered
judgment on the Count One conviction. Shortly thereafter, appellants filed
timely notices of appeal to preserve their right of appeal.

On April 4, 1997, appellants filed a motion requesting that this court remand
the matter to the district court, alleging that no final judgment had entered
inasmuch as numerous other untried counts remained pending. On May 6,
1997, this court dismissed the matter without prejudice to appeal upon the entry
of final judgment. In response, the government filed a motion to reconsider,
arguing that, when the district court, on its own initiative, proceeded to trial on
only the conspiracy count, the court, in effect, severed that count from the other
charges, and thus created a separately appealable case. On September 18, 1997,
this court withdrew its May 6 dismissal order, and allowed the parties to brief
the merits of their case on appeal. However, the jurisdictional issue remains a
threshold question, which we now address below.

II. DISCUSSION
4

The jurisdiction of this court is limited to "all final decisions of the district
courts of the United States...." 28 U.S.C. 1291 (emphasis added). "This
requirement of finality is particularly strict in criminal proceedings because the
disruption and delay caused by interlocutory appeals 'are especially inimical to
the effective and fair administration of the criminal law.' " United States v.
Sorren, 605 F.2d 1211, 1213 (1st Cir.1979) (quoting Abney v. United States,
431 U.S. 651, 657, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)). "Final judgment in a
criminal case means sentence. The sentence is the judgment." Berman v.
United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937).

However, "a criminal judgment involving multiple counts is not final and
appealable unless the record discloses the precise disposition (e.g., the
sentence) for each count." United States v. Luciano-Mosquera, 63 F.3d 1142,
1148 n. 2 (1st Cir.1995), cert. denied, 517 U.S. 1234, 116 S.Ct. 1879, 135
L.Ed.2d 174 (1996); see also United States v. Wilson, 440 F.2d 1103, 1104 (5th
Cir.1971) ("when a multi-count indictment and verdict are involved, it is
essential for post-conviction review that the record disclose the precise
sentence for each count"); 15B Charles Alan Wright, Arthur R. Miller, &
Edward H. Cooper, Federal Practice and Procedure 3918.7, at 536-37 (2d ed.
1992) ("if sentence is imposed on some counts, but the court expressly defers
imposition of sentence on other counts, there is no final judgment"). Thus, we
agree with appellants that we currently lack appellate jurisdiction due to the
presence of 38 untried counts, which precludes the issuance of a final judgment
against them. Ultimately, we prefer to view a final judgment as one disposing of
all counts or claims with respect to all parties.

The government contends that, when the district court judge decided to conduct
a separate trial on Count One, he severed that count from the remaining counts
pursuant to Fed.R.Crim.P. 14.2 Thus, according to the government, the district
court created a separately appealable criminal case. By urging us to hear this
appeal now, the government, at bottom, is attempting to preserve its remaining
counts in case of reversal on the first count without being forced to try those
counts now.

The power to order separate trials "rests within the broad discretion of the
District Court as an aspect of its inherent right and duty to manage its own
calendar." United States v. Gay, 567 F.2d 916, 919 (9th Cir.1978). The record
reflects that the district court, on its own initiative, ordered a separate trial on
Count One for case management reasons. 3 As the hearing transcript shows, the
district court judge separated Count One from the other counts because he

assumed, albeit incorrectly, that, whatever the outcome of the trial on that
count, the government would dismiss the remaining counts. We believe that the
district court did not abuse its discretion in following such a course under its
case management authority, nor does the government claim abuse.
8

The government's argument based on Rule 14 is doubly mistaken. First, the

district judge did not rely upon Rule 14, see infra, but on its separate case
management authority. Nor is there any reason to think that Rule 14 was
applicable in this case: there was no claim by either side, nor any finding by the
judge, that either the defendant or government would be "prejudiced" by
joinder. Not every trial management decision is designed to avoid prejudice.

But there is a second and more fundamental reason why Rule 14 is irrelevant.
Rule 14 refers to "severance" but also to "whatever relief justice requires."
While the separation of defendants, or less often counts, into two separate cases
is a form of relief commonly granted under Rule 14, nothing in the rule says or
means that every action taken under Rule 14 to remedy prejudice necessarily
involves the separation of a case into two separate cases. Such a separation is
merely one form of permissible relief and that relief was not granted in this
case. 4

10

The truth is that neither Rule 14 or any other Federal Rule of Criminal
Procedure directly addresses the question of when a criminal matter comprises
a separate appealable unit. When making such determinations, the courts have
relied essentially on policy and precedent. The prevailing practice has been to
treat "the case" as the basic unit for an appeal. The question of when a case has
been separated into "two cases," each separately appealable, depends upon the
circumstances.

11

In our view, two objectives are important: first, preserving the district judge's
flexibility to manage litigation, reserving a trial court's authority (subject
always to appropriate review) to sever a single case into two cases or to take
lesser steps such as retaining a single case but ordering two trials. The other
objective, in our view, is to provide the clearest possible notice to litigants (and
to the appellate court) as to whether there has been a severance into two cases,
notice that is especially important because of the time limits that require an
appeal to be taken within a fixed period of time.

12

With this latter concern in mind, we think that where a matter originated as one
case, normally it should be treated as two cases only where the district court has
made clear its intention to sever the case into two cases. In the present instance,

there was no formal severance; there was no indication that separate dockets
were established for the separately tried counts; and the trial judge indicated his
doubt as to whether the judgment on the first count alone could be appealed.
Under these circumstances--unless sentence has been executed--we conclude
that no appeal can be taken on the first count until all counts have been tried
and sentenced.5
13

There is nothing in this view that is inconsistent with United States v. Powell,
24 F.3d 28, 30-31 (9th Cir.1994), relied upon by the government. That case
effectively held that when a severance occurs under Rule 14, each conviction
on the separate count should be separately appealable upon the imposition of
sentence. See id. at 30. In this case, the question is whether a severance creating
two cases has occurred and we find, for the reasons indicated, that it has not.

14

The government also cites several cases in which appeals courts have assumed
jurisdiction although less than all counts had been resolved. See, e.g., United
States v. Bay State Ambulance Hosp. Rental Serv., Inc., 874 F.2d 20, 22 (1st
Cir.1989) (appeal of conviction on some counts, even though jury also hung on
another count); United States v. Richardson, 817 F.2d 886, 887 (D.C.Cir.1987)
(same); United States v. Levasseur, 816 F.2d 37, 45 (2d Cir.1987) (appeal of
conviction on some counts, even though other counts remained untried).
However, these courts failed to comment on the jurisdictional issue. Thus, we
find them to be far from compelling. For instance, this court's Bay State
decision is silent as to the status of the disposition of the hung count. Perhaps
the government dismissed the hung count prior to appeal, mooting the
jurisdictional issue. In the alternative, the Bay State panel may not have
detected a jurisdictional problem despite the existence of the hung count. In any
event, the Bay State court's grounds for assuming appellate jurisdiction are not
apparent from the opinion, and it remains unpersuasive precedent on this issue.

15

It is important to note that the district has stayed the execution of appellants'
sentences for the Count One conviction. "The insistence on final disposition of
all counts ... is reasonable unless an attempt is made to enforce the sentence on
the counts that have been finally resolved." 15B Wright, Miller, Cooper,
Federal Practice and Procedure 3918.7, at 537 (2d ed.1992). Otherwise, "
[i]mmediate appeal must be allowed before a partial sentence can be executed."
Id. Here, we do not confront a situation in which appellants are languishing in
jail awaiting trial on the remaining counts. According, we hold that we
presently lack appellate jurisdiction to consider this appeal.

III. CONCLUSION

16

For the foregoing reasons, we dismiss this appeal without prejudice to

subsequent appeal upon disposition of all pending counts.

17

I disagree that in these circumstances no "severance" has occurred. It seems to

me that the district court's ordering of a separate trial of the conspiracy counts
while leaving the plethora of other counts untried and in limbo (with no plans
or agreement as to their future disposition) constituted a de facto severance of
the former. As would be true in a severed case, I believe the final judgment on
the tried counts is immediately appealable. See United States v. Powell, 24 F.3d
28, 30-31 (9th Cir.1994).

18

My colleagues would depend upon the label used or not used by the district
judge to decide whether there was a severance, holding there is none unless the
judge specifically so announces. On the present facts, this approach has the
practical effect of enabling the district judge to do what the law otherwise
would not allow--namely, to put the government in a position where it will
likely have to drop all the remaining counts. For, assuming the judge continues
not to execute the currently imposed sentences, a stalemate will exist that the
government can break only by seeking dismissal of all the remaining untried
counts.

19

My colleagues say, perhaps tongue in cheek, "[t]here is nothing preventing the

government from proceeding on the remaining counts," see note 5; but the
practical implications of so doing, where a trial followed by conviction has just
been concluded on the conspiracy counts, makes that course implausible.
Trying the remaining counts now would be at odds with the rationale for
originally separating the counts. Another trial would be wasteful and futile so
long as the possibility exists that the convictions under the already tried counts
will be affirmed on appeal, perhaps rendering further proceedings unnecessary
from the government's perspective.

20

The most practical alternative, under this court's ruling, is for the government to
drop all the remaining counts. This will permit the appellate process to occur
and the current sentence to take effect if the judgment is affirmed. Defendants'
guilt or innocence will thus stand or fall on the outcome of that appeal, and the
government will have permanently surrendered the ability to utilize the other
counts should the appeal succeed (or for any other reason). This court's ruling,
therefore, has the effect of compelling or, at least, strongly pressuring the
government to dismiss counts, an authority the courts by themselves do not
possess.6

21

I fully accept that, when multiple counts are prosecuted together, they may
sometimes be best treated as a single unit for appeal. See 15B Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure
3918.7, at 536-37 (2d ed.1992) (where prosecution of a multi-count
indictment proceeds together, "[t]he insistence on final disposition of all counts,
treating the entire prosecution as a single judicial unit, is reasonable...."). (This
approach, of course, is contingent upon the postponement of the sentences
already imposed on some of the counts, so that defendants are not languishing
in jail. My colleagues agree that if a sentence, once imposed, is executed, an
immediate appeal must be allowed, even if unsentenced counts remain.)

22

But while the above principle (i.e. treating all counts as a unit for appeal) has
been accepted in appropriate circumstances, it is also clear that--unlike the
situation on the civil side--there can be no general principle in a criminal case
that all counts be disposed of before appeal. Compare Fed.R.Civ.P. 54(b). Such
a rule could not work in cases where the imposed sentence is executed, supra,
and--even without execution--might be inappropriate in some other cases given
the chilling effect of an unexecuted sentence. Hence it is only in some criminal
cases that, after imposition of sentence on one or more counts, an immediate
appeal will be disallowed. As the majority properly notes, the established
general rule in criminal cases is that, "[t]he sentence is the judgment."

23

Here, I believe my colleagues push too far with what is the occasional exception
in the criminal sphere to the usual rule that a sentence forms an immediately
appealable judgment. This is not a case where the unsentenced counts were
treated prior to sentencing in a unitary fashion with the tried counts. The
remaining counts here were, in fact, never set for trial. No plan or agreement
exists even now for their disposition. To postpone the appeal on the tried
counts until action is taken on the remainder serves no purpose other than to
unfairly penalize the government, since no action on such counts prior to appeal
is really contemplated. To be sure, defendants are not in jail; they are, indeed,
happy, since my colleagues' analysis, which defendants entirely support, will
likely pressure the government to drop all the remaining counts against them.
What the majority's holding accomplishes is to erode the government's rightful
power to retain the remaining counts as an anchor to windward or for whatever
other purpose. The court's analysis is predicated on what seems to me an unreal
distinction between an express severance and what was, in every functional
respect, a severance in fact, i.e., the entirely separate disposition through trial
and sentencing of the conspiracy counts. I would hold that actions speak louder
than words--a severance has in fact occurred, and the right to appeal applicable
to counts severed under Fed.R.Crim.P. 14 should apply here.

At the times relevant to the charged offenses, Prigmore was a Group Executive
Vice-President of Bard, with responsibility for the company's United States
Catheter and Instrument, Inc. ("USCI") division. Cvinar was President of USCI,
and Leichter was USCI's Director of Regulatory Affairs and Quality Assurance.
The other defendants, Kenneth G. Thurston and Janice T. Piasecki, were
acquitted after trial on the first count, and all other counts against them were
eventually dismissed

The rule provides in pertinent part:

If it appears that a defendant or the government is prejudiced by a joinder of
offenses or of defendants in an indictment or information or by such joinder for
trial together, the court may order an election or separate trials of counts, grant
a severance of defendants or provide whatever other relief justice requires....
Fed.R.Crim.P. 14.

Court: ... It is a relatively simple case: Did they change [the catheter] in a way
they shouldn't have, and the fact that there are 350 counts is a yawn to me. That
is why I am making it a one-count case.... You have a conspiracy. If [the
government] doesn't get the conspiracy--in other words, they have to take a
rifle shot, and put it right between your eyes. Otherwise they miss. And that is
the end of it
Transcript of Hearing, April 5, 1995, at p. 3.
Court: It is only going to be on Count 1.... [Those other counts] never may be
taken up. In other words, my prediction is that, if the government does not
succeed on the conspiracy, I'd be very surprised if they--and I haven't talked to
[the government's attorney] about it, naturally--but he is not that way. I think if
he misses on this, then that will probably be the end. On the other hand, if he
hits, that will probably be the end of it too.
Transcript of Hearing, April 5, 1995, at p. 13.
Court: ... As I recall it, it was all my idea to just do one count, and there was
really, I don't think, any objection from either party. I think there was equal
silence in the face of the suggestion.... I thought that Count 1 would do it, and
that, in other words, I thought that the government probably would go along
with Count 1. But, in fairness, there was no specific agreement to that. And I
don't think that my speculation on the subject is controlling, nor do I think it
bars the government from trying the other counts, if indeed, they want to try

them. I don't think there is appellate jurisdiction, but that is out of my salary
bracket.
Transcript of Hearing, September 25, 1996, at pp. 1-2 (hearing after trial on
Count One).
4

Severance is "only one remedy--and certainly the most extreme--in the federal
courts' remedial aresenal." United States v. Neal, 36 F.3d 1190, 1207 (1st
Cir.1994). The text of the rule makes clear that Rule 14 contemplates remedies
other than severance. See Fed.R.Crim.P. 14 ("the court ... may provide
whatever relief justice requires")

We think the dissent is mistaken when it argues that this approach "has the
practical effect of enabling the district judge to do what the law otherwise
would not allow--namely, to put the government in a position where it will
likely have to drop all the remaining counts." Infra at 37. There is nothing
preventing the government from proceeding on the remaining counts

Under Rule 48(a) of the Federal Rules of Criminal Procedure, the remaining
counts of the indictment may be dismissed only by the joint authority of the
court and prosecution. See also, e.g., United States v. Stokes, 124 F.3d 39, 46
(1st Cir.1997) (holding that "egregious circumstances ... are essential before a
court may unleash its supervisory powers to interfere with the exercise of
prosecutorial discretion")