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    United States v. Garib-Bazain, 222 F.3d 17, 1st Cir. (2000)

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    The United States Court of Appeals for the First Circuit dismissed an interlocutory appeal from a district court's denial of a motion to dismiss a conspiracy charge on statute of limitations grounds. The court held that such denials are not immediately appealable under the collateral order doctrine. While some exceptions exist, like denials of motions to dismiss on double jeopardy grounds, statute of limitations is an ordinary defense that can be fully addressed on appeal after a final judgment. In line with four other circuit courts, the First Circuit concluded the defendant's arguments did not undermine the persuasive reasoning that the denial of a motion to dismiss on statute of limitations grounds is not immediately appealable.

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    United States v. Garib-Bazain, 222 F.3d 17, 1st Cir. (2000)

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    The United States Court of Appeals for the First Circuit dismissed an interlocutory appeal from a district court's denial of a motion to dismiss a conspiracy charge on statute of limitations grounds. The court held that such denials are not immediately appealable under the collateral order doctrine. While some exceptions exist, like denials of motions to dismiss on double jeopardy grounds, statute of limitations is an ordinary defense that can be fully addressed on appeal after a final judgment. In line with four other circuit courts, the First Circuit concluded the defendant's arguments did not undermine the persuasive reasoning that the denial of a motion to dismiss on statute of limitations grounds is not immediately appealable.

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    Filed: 2000-08-30 Precedential Status: Precedential Citations: 222 F.3d 17 Docket: 00-1005

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    The United States Court of Appeals for the First Circuit dismissed an interlocutory appeal from a district court's denial of a motion to dismiss a conspiracy charge on statute of limitations grounds. The court held that such denials are not immediately appealable under the collateral order doctrine. While some exceptions exist, like denials of motions to dismiss on double jeopardy grounds, statute of limitations is an ordinary defense that can be fully addressed on appeal after a final judgment. In line with four other circuit courts, the First Circuit concluded the defendant's arguments did not undermine the persuasive reasoning that the denial of a motion to dismiss on statute of limitations grounds is not immediately appealable.

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    48 views3 pages

    United States v. Garib-Bazain, 222 F.3d 17, 1st Cir. (2000)

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    The United States Court of Appeals for the First Circuit dismissed an interlocutory appeal from a district court's denial of a motion to dismiss a conspiracy charge on statute of limitations grounds. The court held that such denials are not immediately appealable under the collateral order doctrine. While some exceptions exist, like denials of motions to dismiss on double jeopardy grounds, statute of limitations is an ordinary defense that can be fully addressed on appeal after a final judgment. In line with four other circuit courts, the First Circuit concluded the defendant's arguments did not undermine the persuasive reasoning that the denial of a motion to dismiss on statute of limitations grounds is not immediately appealable.

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    of 3

    222 F.3d 17 (1st Cir.

    2000)

    UNITED STATES, APPELLEE,


    v.
    JORGE L. GARIB-BAZAIN, DEFENDANT, APPELLANT.
    No. 00-1005

    United States Court of Appeals For the First Circuit


    Submitted August 21, 2000
    Decided August 30, 2000

    Charles E. Fitzwilliam, Gonzalez & Torres P.S.C., Howard M. Srebnick


    and Black, Srebnick & Kornspan on memorandum for appellant.
    Before Torruella, Chief Judge, Boudin and Lipez, Circuit Judges.
    Per Curiam.

    This is an interlocutory criminal appeal from a district court order denying a


    motion to dismiss on statute-of-limitations grounds. Because it is "well settled
    law" that such an order "is not immediately appealable under the collateral
    order doctrine," United States v. Pi, 174 F.3d 745, 750 (6th Cir.), cert. denied,
    120 S. Ct. 74 (1999), we dismiss the appeal for lack of jurisdiction.

    In connection with his employment at a medical institute in Puerto Rico,


    defendant Dr. Jorge Garib Bazain was indicted on two counts: conspiracy to
    commit program fraud, 18 U.S.C. 371, 666, and perjury, 18 U.S.C. 1623.
    Prior to trial, he moved to dismiss the conspiracy count as time-barred under
    the applicable five-year statute of limitations. See 18 U.S.C. 3282. When the
    district court denied that motion, defendant filed the instant appeal. As he
    recognizes, such an order is immediately appealable only if it satisfies the three
    criteria that define the collateral-order exception: the order "must (1)
    conclusively determine the disputed question, (2) resolve an important issue
    completely separate from the merits of the action, and (3) be effectively
    unreviewable on appeal from a final judgment." Midland Asphalt Corp. v.
    United States, 489 U.S. 794, 799 (1989) (internal quotation marks omitted).

    Defendant contends that, just as denials of motions to dismiss on double-

    Defendant contends that, just as denials of motions to dismiss on doublejeopardy grounds satisfy these criteria, see Abney v. United States, 431 U.S.
    651 (1977), so do denials of motions to dismiss on limitations grounds. With
    respect to the third criterion in particular, he asserts that a "right not to be tried,"
    like the one recognized in Abney, is also involved here--a right that "would be
    irretrievably lost if review were postponed until trial is completed." Flanagan v.
    United States, 465 U.S. 259, 266 (1984). Such a right is said to derive from the
    language of 3282 ("no person shall be... tried")1 and from the degree to which
    statutes of limitations and the Double Jeopardy Clause overlap in purpose.

    This view runs into a wall of contrary authority. As defendant acknowledges,


    the four circuit courts to have addressed the issue are in agreement that the
    denial of a limitations defense is not immediately appealable. See, e.g., United
    States v. Weiss, 7 F.3d 1088, 1089-90 (2d Cir. 1993); United States v.
    Rossman, 940 F.2d 535, 536 (9th Cir. 1991) (per curiam); United States v.
    Davis, 873 F.2d 900, 908-09 (6th Cir. 1989) (cited in Pi, 174 F.3d at 750);
    United States v. Levine, 658 F.2d 113, 116-29 (3d Cir. 1981). And the Supreme
    Court has held that denials of motions to dismiss on speedy-trial grounds are
    not immediately appealable. See United States v. MacDonald, 435 U.S. 850
    (1978).

    With rare exceptions, an interlocutory order in a federal criminal case rejecting


    or deferring a decision on a defense to prosecution is reviewable on appeal only
    if and after the defendant is convicted and sentenced. This is well settled
    practice in the federal courts and is based upon obvious practical
    considerations. In a few situations, such as double jeopardy, special reasons
    exist for an exception to this general rule, but the statute of limitations is an
    ordinary defense and it can fully and fairly be vindicated by appeal after a final
    judgment.

    The reasoning of these four circuit courts, which defendant has not called into
    serious question, proves entirely persuasive. For the reasons set forth by those
    courts at greater length, we conclude that the denial of a motion to dismiss on
    statute-of-limitations grounds is not immediately appealable under the
    collateral-order doctrine.2

    Dismissed for lack of jurisdiction.

    NOTES:
    1

    18 U.S.C. 3282 provides:

    Except as otherwise expressly provided by law, no person shall be prosecuted,


    tried, or punished for any offense, not capital, unless the indictment is found or
    the information is instituted within five years next after such offense shall have
    been committed.
    2

    We note that, during the pendency of this appeal, defendant has gone to trial,
    been convicted and sentenced, and filed a separate notice of appeal from final
    judgment. Our dismissal of the instant appeal has no bearing on that second
    appeal. Defendant is of course free to raise the limitations issue therein.

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