In United States v. Cloud, No. 22-30044 (9th Cir. May 21, 2024), the Ninth Circuit holds that even before entry of a conviction against the criminal defendant, the United States could appeal a district court order, under the collateral-order, directing the Government to pay monetary sanctions for an alleged Brady violation.
Mid-trial during a homicide case, “the district court learned that the Government failed to turn over [to the defense] information suggesting that its star witness, Esmeralda Z., was willing to shape her testimony in exchange for certain benefits.” The district court found a violation of Brady v. Maryland, 373 U.S. 83 (1963).
“[O]n March 9—the same day that the jury entered a verdict convicting Cloud on thirteen counts, including four counts of first-degree murder—the district court issued a sanctions order, directing the Government to pay $4,844.68 (an amount that reflected the defense’s accounting) to the Federal Defenders of Eastern Washington & Idaho and $216.00 (the amount paid to jurors while they sat idle) to the district court clerk.”
The Ninth Circuit, affirming the sanction, first addresses its appellate jurisdiction.
“This case presents an unusual situation. The Government filed a timely notice of appeal of the sanctions order two weeks after the district court issued the order, but several months before final judgment issued in the underlying criminal case. The Government asserts jurisdiction under 28 U.S.C. § 1291, or alternatively under 28 U.S.C. § 1651(a) as a petition for a writ of mandamus. It goes without saying that it is atypical for us to hear an appeal from the Government after it has obtained a conviction.”
The panel finds that each of the elements of the collateral-order doctrine were met.
“To begin, the order conclusively determined the issue of the Brady violation . . . . The order resolved an important issue—the consequences of the Government’s withholding of impeachment information from defense counsel—separate from the ultimate merits of the underlying action, which in this case is Cloud’s criminal conviction. And finally, the order was not a ‘step toward final disposition of the merits” and was not ‘merged in [the] final judgment,’ because the judgment in a criminal case runs to the defendant and reflects only his conviction and sentence.’”
“To be sure, we are mindful of the Supreme Court’s repeated admonitions that the ‘class of collaterally appealable orders must remain ‘narrow and selective in its membership.’’ Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 113 (2009) . . . . We have, however, long taken a ‘pragmatic approach to finality in situations where events subsequent to a nonfinal order fulfill the purposes of the final judgment rule’ . . . . This practical approach counsels in favor of our conclusion that appellate jurisdiction is proper here. Because the district court entered final judgment against Cloud in the underlying criminal case before we heard this appeal, we are not confronted with any risk of ‘piecemeal appeals and concomitant delays” of the sort that “the final judgment rule was designed to prevent,’ Cunningham v. Hamilton County, 527 U.S. 198, 209 (1999), for ‘nothing else remains in the federal courts[.]’”
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