Respondents, originally indicted in the Eastern District of Kentucky on two counts for violations of 18 U. S. C. §§ 371
We do not reach the question of prosecutorial vindictiveness, for we hold that the Court of Appeals was without jurisdiction under 28 U. S. C. § 1291 to review the District Court's interlocutory order refusing to dismiss the indictment. Congress has limited the jurisdiction of the Courts of Appeals to "final decisions of the district courts."
This Court has interpreted the jurisdictional statute to permit departures from the rule of finality in only a limited category of cases falling within the "collateral order" exception delineated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-547 (1949). Such orders "must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). In criminal cases, we have adhered to the collateral order exception to the rule of finality on three occasions: present in each of these cases were factors noticeably lacking in the instant appeal.
In Stack v. Boyle, 342 U.S. 1 (1951), the Court held that an order denying a motion to reduce bail could be reviewed before trial. Writing separately, Justice Jackson (the author of Cohen) recognized that "an order fixing bail can be reviewed without halting the main trial—its issues are entirely independent of the issues to be tried—and unless it can be reviewed before sentence, it never can be reviewed at all."
Each of these cases, in addition to satisfying the other requirements of Cohen, involved "an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial." United States v. MacDonald, 435 U.S. 850, 860 (1978). Our holding in United States v. MacDonald underscores the significance of this feature. The issue in MacDonald was whether a defendant could appeal, prior to trial, a District Court's order denying his motion to dismiss the indictment because of an alleged violation of his
Respondents assert that their claim of prosecutorial vindictiveness, based on the modification of the original indictment in retaliation for their exercise of a right to move for change of venue, is analogous to the three instances in which we have allowed appeal in criminal cases under the collateral order doctrine. But we think that their claim is more analogous to the speedy trial claim which we held unreviewable under the collateral order doctrine in United States v. MacDonald, supra. We think that it particularly fails the third part of the test for Cohen appeals articulated in Coopers & Lybrand, supra, that the claim "be effectively unreviewable on appeal from a final judgment."
Blackledge v. Perry, 417 U.S. 21 (1974), on which respondents base the merits of their claim of vindictive prosecution, was an application of the principles announced in North Carolina v. Pearce, 395 U.S. 711 (1969), to conduct on the part of a prosecutor. In Perry the defendant had been
Although there is language in the Perry opinion suggesting that the defendant possessed a "right not to be haled into court at all" upon the more serious charge, id., at 30, it is clear that the Court was not using this language to indicate that he was entitled to be free of any retrial whatever. We stated in Perry that "[w]hile the Due Process Clause of the Fourteenth Amendment bars trial of Perry on the felony assault charges in the Superior Court, North Carolina is wholly free to conduct a trial de novo in the Superior Court on the original misdemeanor assault charge." Id., at 31, n. 8. The defendant in Perry was fully protected by postconviction relief, leading to a new trial free of the taint of vindictiveness.
Obviously, it is wholly desirable to correct prior to trial any substantive errors noticed at that time. It is equally evident that when relief must await postconviction proceedings, the defendant is subjected to the burden of defending himself at trial, even though the presence of errors might require reversal of his conviction and possibly a second trial. Nevertheless, reversal of the conviction and, where the Double Jeopardy Clause does not dictate otherwise, the provision of a new trial free of prejudicial error normally are adequate means of vindicating the constitutional rights of the accused.
Even when the vindication of the defendant's rights requires dismissal of charges altogether, the conditions justifying an interlocutory appeal are not necessarily satisfied. In MacDonald, for example, we declined to permit a defendant whose speedy trial motion had been denied before trial to obtain interlocutory appellate review, despite our recognition that "an accused who does successfully establish a speedy trial claim before trial will not be tried." Id., at 861, n. 8. The nature of the speedy trial right was such that "[p]roceeding with the trial does not cause or compound the deprivation already suffered." Id., at 861. This holding reflects the crucial distinction between a right not to be tried and a right whose remedy requires the dismissal of charges. See id., at 860, n. 7. The former necessarily falls into the category of rights that can be enjoyed only if vindicated prior to trial. The latter does not.
The petition for certiorari is granted, and the judgment of the Court of Appeals for the Ninth Circuit is reversed, with instructions to that court to dismiss the appeal.
It is so ordered.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.
Today, the Court carries its recent penchant for summary decision to a new extreme. The substantial and controversial question raised here—whether an order denying a motion
The Court, it seems to me, has shown a disturbing tendency of late to dispose of difficult cases by summary per curiam reversals. I must assume that this tendency is prompted, at least in part, by the growing pressures of the Court's calendar and an ill-conceived conviction that we must stay abreast of the increasing workload whatever the costs may be. I regret this pattern, for I think it demeans the Court and its work and surely tends to lessen the quality of its legal product.
Summary action is particularly unfortunate in this case, for the Court directs that respondents' appeal be dismissed on an issue that was not raised by the Government until its petition for rehearing in the Court of Appeals. Indeed, for more than a year—until the Court of Appeals ruled on the merits in favor of respondents—the Government affirmatively represented to that court that it "ha[d] jurisdiction to review prior to trial a District Court's denial of a defendant's motion to dismiss for vindictive prosecution." United States' Emergency Motion for Summary Affirmance of District Court, reprinted in App. to Brief in Opposition 5a. As a result, the jurisdictional question was not briefed or argued before the Court of Appeals or the District Court.
Respondents' opposition to the Government's petition for certiorari understandably focuses on arguments for denying certiorari—in particular, the Government's failure to raise the jurisdictional issue in a more timely fashion. Coupled
Additionally, I do not find today's ruling so clearly compelled as to warrant summary treatment, especially when the Solicitor General, contrary to his frequent practice, has not suggested summary reversal in his petition for certiorari. In my view, the issue is important enough to be briefed and argued fully in at least one court.
Certainly, the Court's disposition is not mandated by our precedents. As the Court explains, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), and Abney v. United States, 431 U.S. 651 (1977), interpret 28 U. S. C. § 1291 as authorizing interlocutory appeals when a three-part standard has been met. The Court fails, however, to mention the first two requirements, presumably because they are satisfied here: that the denial of a defendant's motion to dismiss an indictment on vindictive prosecution grounds "constitute[s] a complete, formal, and, in the trial court, final rejection of a criminal defendant's [vindictive prosecution] claim," 431 U. S., at 659, and that it resolves an issue that is "collateral to, and separable from, the principal issue at the accused's impending criminal trial, i. e., whether or not the accused is guilty of the offense charged," ibid. Unlike the speedy trial claim before the Court in United States v. MacDonald, 435 U.S. 850 (1978), which depended on an assessment of the extent to which delay had prejudiced the defense—an assessment that could only be "speculative" prior to trial, id., at 858—an allegation that the prosecutor impermissibly increased the charges in response to the defendant's exercise of a legal right may be evaluated before trial, for all the facts relevant to such a claim are fully available.
The Court properly suggests that the third requirement set out in Cohen and Abney is the most difficult to apply in
Moreover, postconviction review may not suffice to remedy the chilling effect the vindictive prosecution doctrine is designed to prevent. The Court repeatedly has declined to hold that the Due Process Clause forbids only prosecutorial action taken with an actual retaliatory motive. Rather, it has emphasized that "`since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of [his] right[s] . . ., due process also requires that a defendant be freed of apprehension of such a retaliatory motivation. . . .'"
In addition to extending our precedents, the Court goes well beyond the rulings of the two Courts of Appeals it characterizes as "directly conflict[ing]" with the decision below. Ante, at 264, n. 1. In United States v. Brizendine, 212 U. S. App. D. C. 169, 180, 659 F.2d 215, 226 (1981), the United States Court of Appeals for the District of Columbia Circuit refused to permit interlocutory appeals involving "claims of due process violations arising from the plea bargaining process." That court, however, expressly refused to consider the appealability of the denial of a motion to dismiss "in the Blackledge situation . . .," where the defendant's claim "turned on a purely legal issue . . ." and challenged increased charges filed in response to his exercise of a legal right. Id., at 175, 659 F. 2d, at 221. Similarly, in United States v. Gregory, 656 F.2d 1132, 1136 (1981), the United States Court of Appeals for the Fifth Circuit did not foreclose the possibility that some claims of prosecutorial vindictiveness could be the subject of interlocutory appeal.