jury then returned verdicts of guilty as to Counts I, II, III, VI, VII, and XI. Defendant waived his right to a jury trial as to Count XII, and the court returned a verdict in favor of the government. That Count related to forfeiture of a boat and trailer purchased by defendant, as charged in Counts VI and VII. The court declared a mistrial as to Counts IV, V, VIII, IX, and X of the indictment.
The court then in open court orally fixed July 10, 1995 as the date for jury selection in any retrial of Counts IV, V, VIII, IX and X of the indictment. This written order memorializes that oral order.
A question now arises as to the setting of a date for sentencing on those counts for which the jury returned verdicts.
In considering the issue of the date of sentencing, there are two major concerns. The first is that of the effect of a sentencing upon the litigation of an appeal in the Court of Appeals for the Third Circuit. The second is that of the operation of the Sentencing Guidelines.
There is a longstanding policy in the federal courts of avoiding piecemeal litigation. Apex Fountain Sales, Inc. v. Kleinfeld, 27 F.3d 931, 935 (3d Cir. 1994) (citing Van Cauwenberghe v. Biard, 486 U.S. 517 at 517-522 n. 3, 100 L. Ed. 2d 517, 108 S. Ct. 1945 (1988); Catlin v. United States, 324 U.S. 229, 233-234, 89 L. Ed. 911, 65 S. Ct. 631 (1945)). Obviously, sentencing defendant on the counts for which verdicts were returned would violate this policy, since a final judgment would be entered on the date of sentencing, while the court will not have disposed of the remaining counts. The fact that the Third Circuit would not yet have jurisdiction over the remaining counts pending their disposition (whether by dismissal, acquittal or conviction and sentence) also impacts this consideration.
Under the Sentencing Guidelines promulgated by the United States Sentencing Commission, certain "grouping" rules apply to closely related counts in determining the offense level. See esp. USSG § 2F1.1 (offenses involving fraud and deceit); § 2S1.2 (engaging in monetary transactions in property derived from specified unlawful activity); § 3D1.2(d) (grouping rules apply to offenses covered by §§ 2F1.1, 2S1.2). Since all of the fraud and unlawful monetary transactions counts relate to one course of conduct, grouping cannot be accomplished until verdicts have been returned as to all such counts.
This problem was faced by the Seventh Circuit in United States v. Kaufmann, 951 F.2d 793 (7th Cir. 1992), cert. denied, 124 L. Ed. 2d 259, 113 S. Ct. 2350 (1993), in which the indictment charged four counts of money laundering (counts one through four) and one count of attempted money laundering (count five). The jury returned verdicts of not guilty on counts one and two, and guilty on count five. The jury deadlocked as to counts three and four, and a mistrial was declared. The trial court sentenced the defendant on count five and stayed execution of sentence pending appeal. On appeal, the defendant sought reversal of the conviction and dismissal of the remaining counts, three and four. 951 F.2d at 794.
The Seventh Circuit first held that it had no jurisdiction to entertain the defendant's challenge to counts three and four because no final judgment had been entered on those counts or on speedy trial issues related to sentencing. 951 F.2d at 794-795.
The Seventh Circuit then held that it did not have jurisdiction over the appeal of count five, since a defendant may not appeal until final judgment has been entered as to all counts of an indictment that have been considered together in one trial. 951 F.2d at 795. Otherwise, there would be burdensome, piecemeal litigation. With counts three and four unresolved, there was no appellate jurisdiction. Id.
Next, the Seventh Circuit pointed out that a sentence could not be executed prior to the entry of a final, appealable judgment. The stay of execution of the sentence by the district court, therefore, was proper. Id.
Finally, the Seventh Circuit noted the impact of the Sentencing Guidelines, stating:
The Sentencing Guidelines have introduced a new problem into a situation like the one before us. When a defendant has been convicted on more than one count, certain grouping rules apply in determining the offense level. United States Sentencing Commission, Guidelines Manual, § 3D1.1 (Nov. 1989). Where conviction on one count of an indictment has occurred an earlier time than conviction on other counts, we think that logic requires that § 3D1.1 be applied to all counts. Perhaps the simplest way of doing it in the case before us, assuming conviction on count three or four, would be to vacate the sentence on count five and sentence on all counts at once. We suggest that in future cases like the present one the district court should not pronounce any sentence until it has disposed of all counts.