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United States v. Louisiana Pac. Corp.

ELR Citation: 27 ELR 20715
Nos. No. 96-1338, 106 F.3d 345/(D. Colo., 02/13/1997) interlocutory appeal

The court holds that it lacks jurisdiction under §3731 of the Criminal Appeals Act to hear a government interlocutory appeal of a lower court's dismissal of two parts of a conspiracy count against a manufacturer alleged to have violated the Clean Air Act and the False Statements Act. The court first declines to adopt the First Circuit's "discrete basis" test, under which the government can take an interlocutory appeal from an order dismissing a portion of a count if the portion provided a discrete basis for the imposition of criminal liability. Federal appellate courts must have specific statutory authority to entertain an appeal, and §3731 does not provide for an appeal of the dismissal of less than a full count of an indictment. The court next holds that because the district court only dismissed two overt acts from the conspiracy count of the indictment, such a dismissal does not invoke the clear language of the statute and trigger jurisdiction.

[The district court's opinion is published at 26 ELR 20726.]

Counsel for Plaintiff
John M. Haried, Ass't U.S. Attorney
U.S. Attorney's Office
1961 Stout St., Rm. 1200, Denver CO 80294
(303) 844-2081

Counsel for Defendants
Elliot R. Peters
Keker & Van Nest
710 Sansome St., San Francisco CA 94111
(415) 391-5400

Baldock, J. (before Tacha and McWilliams, JJ.)