An application by a former Government official to stay his
imminent perjury trial pending this Court's disposition of his
petition for certiorari is denied. After applicant was indicted
following an independent counsel's investigation pursuant to the
Ethics in Government Act, the District Court denied his motion to
dismiss, which was based on a separation of powers challenge to
that Act, and the Court of Appeals dismissed his appeal because the
District Court's order is not a final decision under 28 U.S.C. §
1291. There is a fair prospect that a majority of this Court would
not find the decision below erroneous, since the District Court's
action did not terminate the litigation, and since applicant's
constitutional challenge to the Act is not sufficiently collateral
to fall within the limited exception enumerated in
Cohen v.
Beneficial Industrial Loan Corp., 337 U.
S. 541, in that consideration of the challenge here
would result in piecemeal appellate review of an issue that can
properly be presented to the appellate courts if and when applicant
is convicted.
CHIEF JUSTICE REHNQUIST, Circuit Justice.
Applicant requests that I stay his imminent criminal trial
pending this Court's disposition of his petition for certiorari. In
certain cases, the Ethics in Government Act, 28 U.S.C. §§ 49,
591-598 (1982 ed. and Supp. III), provides for appointment of an
independent counsel to investigate alleged impropriety of
Government officials. After an investigation by an independent
counsel, applicant was indicted for perjury, and is set to be tried
on July 13, 1987. In a motion to dismiss, applicant challenged the
constitutionality of the Act, claiming that appointment of an
independent counsel violates the separation of powers. The District
Court denied the motion.
Page 483 U. S. 1302
Applicant appealed, and the Court of Appeals for the District of
Columbia Circuit dismissed the appeal because the District Court's
order is not a final decision.
See 28 U.S.C. § 1291.
Applicant has filed a petition for certiorari seeking review of
that judgment, and asks that I stay the proceedings below pending
disposition of that petition.
The standards for granting a stay pending disposition of a
petition for certiorari are well settled. A Circuit Justice is
required
""to determine whether four Justices would vote to grant
certiorari, to balance the so-called
stay equities,' and to
give some consideration as to predicting the final outcome of the
case in this Court.""
Heckler v. Redbud Hospital District, 473 U.
S. 1308,
473 U. S.
1311-1312 (1985) (REHNQUIST, J., in chambers), quoting
Gregory-Portland Independent School District v. United
States, 448 U. S. 1342
(1980).
In my view, there is not a fair prospect that a majority of this
Court would find the decision below erroneous.
"Congress has limited the jurisdiction of the Courts of Appeals
to 'final decisions of the district courts.' 28 U.S.C. § 1291. This
Court has long held that the policy of Congress embodied in this
statute is inimical to piecemeal appellate review of trial court
decisions which do not terminate the litigation, and that this
policy is at its strongest in the field of criminal law."
United States v. Hollywood Motor Car Co., 458 U.
S. 263,
458 U. S.
264-265 (1982). It is clear that the District Court's
denial of applicant's motion to dismiss did not terminate the
litigation. Although applicant claims that his challenge to the
constitutionality of the Act is sufficiently collateral to fall
within the limited exception enumerated in
Cohen v. Beneficial
Industrial Loan Corp., 337 U. S. 541
(1949), I do not think the exception covers this case.
"[I]f [applicant's] principle were to be applied, questions as
to the constitutionality of the statutes authorizing the
prosecution and doubtless numerous other questions would fall under
such a definition, and the policy against piecemeal appeals in
criminal cases would be swallowed by ever-multiplying
exceptions."
Hollywood
Page 483 U. S. 1303
Motor Car, supra, at
458 U. S. 270.
There will be time enough for applicant to present his
constitutional claim to the appellate courts if and when he is
convicted of the charges against him.
Accordingly, the application for a stay and recall of the
mandate of the Court of Appeals is
Denied.
