More procedural hurdles for the appeal of Judge Cacheris’ Citizens United ruling

UPDATE: It did not take long.  At a status conference today Judge Cacheris decided to stay the July trial pending the outcome of the appeal.  Coverage can be found here.  The Order can be found here.  Now we probably wait 5-12 months unless the appeal is expedited.

UPDATE 2: In response to a request made in the comments I have published a politico's guide to Danielczyk.  

On June 7, 2011, Judge Cacheris upheld his ruling that pursuant to the holding in Citizens United v. FEC, 130 U.S. 876 (2010), the Defendants in U.S. v. Danielczyk, Case No. 1:11cr85 can not be held criminally liable for alleged violations of Federal campaign finance laws banning direct contributions to candidates from corporations.  Today the U.S. Government appealed that ruling, constituting what I believe is a procedural mistake. 

I addressed the severe limitations of Judge Cacheris’ ruling, and for those reasons, those seeking to uphold the Constitutionality of the criminal ban on corporate donations to federal candidates were better off not risking expanding the jurisdiction of Judge Cacheris’ ruling as I described here:

http://northernvirginialawyer.blogspot.com/2011/05/why-real-fallout-of-judge-cacheris.html

Nonetheless, now that the Department of Justice has decided to appeal the case, it is important to understand the pitfalls and limitations of this appeal.  To do this I must provide a civil litigator’s take on the interlocutory appeals process by the Department of Justice:

The next procedural hurdle

The Federal government needs to figure out how to stay the remainder of the case, or risk having the appeal dismissed.  A Federal criminal case is started by the issuance of an indictment by a grand jury (the indictment is similar to a civil complaint).  The indictment will contain various counts stating specific criminal violations, usually of federal statutes (similar to civil statutory or common law causes of action).  During the course of the cause of action the defendants can file motions to have portions of the case dismissed (in this instance) due to the unconstitutionality of a statute.  In Danielczyk the Defendants filed such a motion and only one of six challenged counts was dismissed.  This is similar to a civil case in which one cause of action out of six is dismissed.  In a civil case, normally one would not have the right to interlocutory appeal (appeal before the conclusion of the case).

Federal prosecutors are restricted in their appeal rights by a body of case law disfavoring appeals by prosecutors under the common law.  Instead, federal prosecutor’s rights to appeal are limited to those granted by statute.  In this instance those rights are granted by 18 U.S.C. § 3731.  Oddly, (unlike in a civil case) the statute does allow for an interlocutory appeal by the government of the portion of the indictment that was dismissed if a count of the indictment is dismissed prior to trial.

But what is going on with the rest of the case? 

Part of my original post on the Danielczyk decision was to point out that Judge Cacheris issued a 52 page opinion strongly upholding the legitimacy of many Federal campaign finance criminal laws in 47 of the 52 pages in the decision.  The remaining counts are set to go to trial July 6, 2011.  If a trial occurs, all of the facts proving or disproving the count being appealed will be presented at that trial.  If there is a conviction at that trial, the issue of the previously dismissed count may become irrelevant and the appeal dismissed, because it is a lesser included offense.  If there is no conviction, the appeal may be dismissed because granting the relief the government seeks would functionally subject the Defendants to double jeopardy.  In short: if the case goes to trial on the remaining counts the appeal likely becomes moot and will be dismissed on procedural grounds without Judge Cacheris’ Citizens United ruling being overturned.

But doesn’t the filing of the interlocutory appeal stop the trial from going forward until the appeal is concluded?

No.  The trial will go on unless one of the parties asks for a stay of the trial pending the outcome of the appeal.  The defendants generally do not benefit from such a stay.  Two Fourth Circuit cases indicate the proper procedure is a motion for a stay filed in either the District Court or the Circuit Court of Appeals, U.S. v. Fernandez, 887 f.2d 465, 467 (4th Cir. 1989); and U.S. v. Haines, 42 Fed. Appx. 554, 556 (4th Cir. 2002) (unpublished).  In both cases a stay was sought in the District Court, denied, and then sought in the Circuit Court and granted.  No discussion of the standard of review for granting a stay was discussed.  Based on the denials at the District Court level, one could presume a discretionary standard in both District and Circuit Courts applies, similar to the standard a civil litigator finds when seeking to stay enforcement of a judgment pending appeal in both the District and Circuit Courts.

The important thing to take away from this is: A motion for a stay is forthcoming very soon.  For those hoping for actual adjudication on the merits of an appeal of Judge Cacheris’ Citizens United ruling you better hope Judge Cacheris, or the Fourth Circuit grant a stay of the July 6 trial.

What about settlement?

 

Just a reminder.  If a plea bargain is reached the appeal will be moot and Judge Cacheris’ ruling will stand.  Do not be surprised if this is how this chapter ends.