UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

HSIA, MARIA


98-3114a

D.C. Cir. 1999


*	*	*


Williams, Circuit Judge: A six-count indictment charged  Maria Hsia
with various offenses deriving from a scheme to  solicit illegal
political contributions and disguise them as  lawful ones. Hsia filed
numerous motions to dismiss. The  district court denied the motions as
to Count One--conspira- cy to defraud the Federal Election Commission
("FEC") and  the Immigration and Naturalization Service ("INS")--but 
dismissed Counts Two through Six--causing false statements  to be made
to FEC. 24 F. Supp. 2d 33, 38-47, 52-63 (D.D.C.  1998); 24 F. Supp. 2d
63, 64-65 (D.D.C. 1998). The United  States appeals this dismissal; we
reverse. Hsia cross- appeals the refusal to dismiss Count One; we
dismiss the  appeal for lack of appellate jurisdiction.


* * *


The International Buddhist Progress Society ("IBPS"), one  of Hsia's
alleged co-conspirators and operator of the Hsi Lai  Temple in
Hacienda Heights, California, is a tax-exempt  religious organization
incorporated in California. The Feder- al Election Campaign Act
("FECA") forbids such a corpora- tion from making contributions in
federal election campaigns,  2 U.S.C. s 441b(a); the tax code bars
participation in political  campaigns whether they are federal or not,
26 U.S.C.  s 501(b)(3).


Hsia herself is an immigration consultant in the Los Ange- les area.
The indictment alleges a series of actions taken by  her and her
co-conspirators to funnel money from IBPS  through straw contributors
into various campaigns. Hsia  would either find and solicit
individuals to serve as nominal  contributors, see Indictment pp 32,
35, 38, 40(hh), 40(ii), or 


ask IBPS to do so, see id.pp 17, 19, 23, 26, 28, 33, 35, 40(h),  40(k),
40(n), 40(q), 40(t), 40(z), 40(cc), 40(gg). (She sometimes  employed
herself as such a contributor. See id.pp 15, 30, 38,  40(jj).) When
IBPS complied with such a request--often  employing people associated
with the Temple as nominal  contributors, see id. p 13(b)--Hsia
sometimes forwarded the  checks to the campaign. See id.pp 23, 33, 38,
40(kk). All  nominal contributors, whether solicited by Hsia or by
IBPS,  were reimbursed in full by IBPS from its corporate funds.  See
id.pp 17, 19, 23, 24, 26, 28, 30, 32, 33, 35, 39, 40(g), 40(i), 
40(l), 40(o), 40(r), 40(u), 40(x), 40(aa), 40(dd), 40(ll). The 
individuals thus simply served as conduits for IBPS's money.


Hsia also allegedly used conduits to funnel money from two  of her
immigration clients--Hsieh San Yeh and Zhe Xu1--to  the Clinton/Gore
'96 Primary Committee, Inc. ("Clinton/Gore  '96"). In these instances
she instructed others to solicit the  straw donors but conveyed the
checks to the committee  herself. See Indictment pp 47-49; Bill of
Particulars at 14- 16.


Count One charges that the actions involving IBPS consti- tuted a
conspiracy to defraud the United States, specifically  the FEC and
INS, in violation of 18 U.S.C. s 371. See  Indictment p 10. Counts Two
through Six charge that Hsia,  by means of her conduit contribution
schemes, willfully  caused certain recipients of such contributions-- 
Clinton/Gore '96, the Democratic National Committee, and  The Friends
of Patrick J. Kennedy '96--to make false state- ments to the FEC in
violation of 18 U.S.C. ss 2 and 1001:  these recipients filed reports
listing the conduit contributions  as being from their nominal
sources, although the true source  was either IBPS, Mr. Yeh, or Ms.
Xu. See Indictment pp 43,  46, 49, 52, 55; Bill of Particulars at


* * *


Counts Two through Six are based on 18 U.S.C. ss 2(b),  1001(a):




__________

n 1 Ms. Xu was apparently a foreign national barred from making 
contributions by 2 U.S.C. s 441e.


Whoever willfully causes an act to be done which if  directly performed
by him or another would be an of- fense against the United States, is
punishable as a princi- pal.


18 U.S.C. s 2(b).


[W]hoever, in any matter within the jurisdiction of the  executive,
legislative, or judicial branch of the Govern- ment of the United
States, knowingly and willfully-- ... (2) makes any materially false,
fictitious, or fraudu- lent statement or representation ...


shall be fined under this title or imprisoned not more  than 5 years,
or both.


Id. s 1001(a).2


The most orderly fashion for addressing the district court's  decision
is by the elements of willfulness, causation, and  falseness, with
respect to all of which it found deficiencies.


"Willfully" According to the district court, the word "willfully" in  s
2(b) requires the government to show that Hsia knew that  her conduct
was unlawful. 24 F. Supp. 2d at 62 n.32; 24  F. Supp. 2d 14, 21
(D.D.C. 1998) (original decision on this  issue); see also United
States v. Trie, 21 F. Supp. 2d 7, 14-16  (D.D.C. 1998).3 Believing
that the charges here required an  


__________

n 2 This is the current form of s 1001, which applies only to Count 
Six. Counts Two through Five, alleging acts occurring before this 
current language went into effect, charge violations of the previous 
version of s 1001. That stated: "Whoever, in any matter within  the
jurisdiction of any department or agency of the United States 
knowingly and willfully ... makes any false, fictitious or fraudulent 
statements or representations ... shall be fined under this title or 
imprisoned not more than five years, or both." The differences 
between the versions are not relevant to this case, and we will refer 
to the current s 1001.


3 Although the district judge appeared to attribute this 
knowledge-of-criminality requirement to s 1001's "knowingly and 


unconventional and extreme interpretation of ss 2(b) and  1001, the
court found that Hsia could not have known that her  conduct would
fall within their grasp.


Although we find no material novelty in the government's  reading of
the statutes (see below), our decision on whether  the element of
willfulness is adequately alleged does not turn  on this point. We
believe that the government need not  prove that Hsia knew her acts to
be unlawful; the question  whether she could in fact have had such
knowledge is there- fore irrelevant.


The natural reading of ss 2(b) and 1001 is this: the  government may
show mens rea simply by proof (1) that the  defendant knew that the
statements to be made were false  (the mens rea for the underlying
offense--s 1001) and (2)  that the defendant intentionally caused such
statements to be  made by another (the additional mens rea for s
2(b)). See  United States v. Gabriel, 125 F.3d 89, 101 (2d Cir. 1997).
The  district court, like the Third Circuit in United States v. 
Curran, 20 F.3d 560 (3d Cir. 1994), relied on Ratzlaf v.  United
States, 510 U.S. 135 (1994), for its contrary result.  But this
extends Ratzlaf too far: that case did not universal- ize a broad
reading of "willfully" and thus overturn the  general rule that
ignorance of the law is no excuse. Ratzlaf  found a
knowledge-of-criminality requirement in a statute  that independently
required the act at issue to be "for the  purpose of evading" various
reporting requirements; reading  "willfully violating" there as only
requiring intention would  have made it surplusage. Id. at 139-41. In
this case, no  such problem exists. We find Ratzlaf's narrow exception
 inapplicable and adopt the natural reading of mens rea above. 
Accordingly, nothing in the indictment's allegations contra- dicts the
government's capacity to prove the statutorily re- quired mens rea.




__________

n willfully" language, it must, if it exists at all, be a gloss of
"willfully"  in s 2(b): no court adopting such a requirement has
questioned the  rule that knowledge of criminality need not be shown
in direct  s 1001 prosecutions. See United States v. Curran, 20 F.3d
560,  567-68 (3d Cir. 1994) (analyzing issue as s 2(b) requirement).


"Causes"


It is not entirely clear what defects the district court found  in the
government's theory of causation. The initial objec- tion--that "a
check is not a statement," 24 F. Supp. 2d at 62- 63--appears not only
incorrect (the cases indicate, at most,  that a check does not assert
that it will not bounce) but  irrelevant. The false statements here
are the political com- mittees' reports identifying certain listed
names as sources of  specific contributions; the names on the checks,
together with  the rest of the alleged conduit contribution scheme,
could  have "caused" these false statements to be made whether or  not
the checks were themselves statements of anything. But  the district
court seems also to have had a more general  objection--that the
causal link between Hsia's conduct and  the making of false statements
was too "attenuated." Id. at  61-62.


Section 2(b) does not, of course, limit by its terms the  particular
means by which the defendant may "cause" anoth- er to commit the act,
nor the degree of permissible "attenua- tion" between these two
people's actions. Cf., e.g., United  States v. West Indies Transp.,
Inc., 127 F.3d 299, 307 (3d Cir.  1997) (defendant may be prosecuted
under ss 2(b) and 1001  even if people who actually made false
statements are not  criminally liable). The mens rea element of the
statute  provides an outer limit on the latter, for a weak or
implausi- ble causal link would make it more difficult to prove that
the  defendant brought the effect about "willfully."


Nor is the general scheme of the indictment novel; the  application of
s 2(b) to a conduit contribution scheme has  been several times
upheld. See Curran, 20 F.3d 560; United  States v. Hopkins, 916 F.2d
207 (5th Cir. 1990); Goland v.  United States, 903 F.2d 1247 (9th Cir.
1990); cf. United  States v. Yermian, 468 U.S. 63, 68-75 (1984) (s
1001 convic- tion requires no proof that defendant was aware of any 
federal agency jurisdiction). In those cases, defendants were 
convicted under ss 2(b) and 1001 for employing such a  scheme to
conceal their own contributions: they had found  nominal donors, had
these conduits make payments to a 


committee, and reimbursed them. Here, the money was not  Hsia's; it
belonged instead to her immigration clients or to  her co-conspirator
IBPS. But Hsia arranged--directly or  indirectly--for the conduits to
do their part. That she did  this to channel others' money does not
help her. As FEC  regulations direct committees to report "any
contribution  made by check, money order, or other written instrument"
 "as a contribution by the last person signing the instrument" 
"[a]bsent evidence to the contrary," 11 CFR s 104.8(c), the  simple
interposition of conduits to sign the checks is certainly  enough to
"cause" a committee to make false statements in its  report. The
indictment and bill of particulars straightfor- wardly lay out the
government's account of Hsia's affirmative  steps toward that


Invocation of the due process clause or the First Amend- ment does not
change the analysis, at least for review of the  indictment. As the
case fits comfortably within the clear and  previously accepted scope
of ss 2(b) and 1001, there is no  question of notice or vagueness. As
for overbreadth, we do  not understand how it might apply here. There
is no sugges- tion that the statutes are facially invalid. While the
absence  of any claim that Hsia's activity was itself constitutionally
 protected is consonant with the general form of overbreadth 
standing, see Board of Trustees v. Fox, 492 U.S. 469, 484  (1989),
neither Hsia nor the district court ever specified just  what
protected activity could be chilled by the application of  ss 2(b) and
1001 to this case. "Overbreadth" appears, at  bottom, to have been
another tag for the court's concern that  the indictment stretched ss
2(b) and 1001 unreasonably far.  We see no constitutional difficulty
in use of the statutes  against the conduct alleged here.


"False"


The final strand of the district court's reasoning was its  suggestion
that the statements at issue were "literally true."  24 F. Supp. 2d
33, 58.


FECA requires that political committees file periodic re- ports
containing, among other things,


the identification of each--


(A) person ... who makes a contribution to the  reporting committee
during the reporting period,  whose contribution or contributions have
an aggregate  amount or value in excess of $200 within the calendar 
year ... together with the date and amount of any  such


2 U.S.C. s 434(b)(3). "Contribution" is defined, in relevant  part,


any gift, subscription, loan, advance, or deposit of money  or anything
of value made by any person for the purpose  of influencing any
election for Federal office.


Id. s 431(8)(A)(i). FECA also provides that


For purposes of the limitations [on contributions and  expenditures]
imposed by this section, all contributions  made by a person, either
directly or indirectly, on behalf  of a particular candidate,
including contributions which  are in any way earmarked or otherwise
directed through  an intermediary or conduit to such candidate, shall
be  treated as contributions from such person to such candi- date. The
intermediary or conduit shall report the origi- nal source and the
intended recipient of such contribution  to the Commission and to the
intended recipient.


Id. s 441a(a)(8). Finally, FECA specifically states:


No person shall make a contribution in the name of  another person or
knowingly permit his name to be used  to effect such a contribution,
and no person shall know- ingly accept a contribution made by one
person in the  name of another person.


Id. s 441f.


We are convinced by these latter provisions that  s 434(b)(3)'s demand
for identification of the "person ... who  makes a contribution" is
not a demand for a report on the  person in whose name money is given;
it refers to the true  source of the money. As the committees here did
not report  the true sources, their statements would appear to be
false.


The district court, for the most part, appears to have  agreed with
this analysis. See 24 F. Supp. 2d at 59-60. It  determined, however,
that FECA's safe harbor provision, 2  U.S.C. s 432(i), controlled the
case. That subsection, added  five years after FECA's original
enactment, states:


When the treasurer of a political committee shows that  best efforts
have been used to obtain, maintain, and  submit the information
required by this Act for the  political committee, any report or any
records of such  committee shall be considered in compliance with this


Id. Because the indictment does not allege that the commit- tee
treasurers had any wrongful knowledge, the district court  found, the
statements in the reports must be considered  FECA-compliant (and
therefore not false). 24 F. Supp. 2d at  60-61.


The argument assumes that this safe harbor does not  merely provide an
affirmative defense for the committee and  its officers but actually
modifies the substantive reporting  requirements of FECA. Even if the
provision wrought some  substantive amendment, however, it could not
be so drastic as  to aid Hsia here. Section 432(i) conditions its
relief on the  treasurer's making "best efforts" to ascertain the
necessary  information, and FEC has spelled such efforts out in 11 CFR
 s 104.7. But not even Hsia argues that the section would  shield a
treasurer who went through the motions of the "best  efforts" and then
submitted information contrary to facts  known to her. Thus, if the
act of filing the report with  conduits listed as contributors were
"directly performed by"  Hsia, 18 U.S.C. s 2(b), her actual knowledge
of falsity-- required to be shown anyway--would make the statements 
culpable regardless of any ritualistic performance of "best 


In any event, we find no substantive modification. The  statute allows
the safe harbor only when the treasurer  "shows" the use of best
efforts, suggesting that the provision  only applies to a proceeding
against the committee itself or  one in a position to make such
efforts on the committee's 


behalf. 2 U.S.C. s 432(i). Further, there remains no qualify- ing
language in the actual reporting requirements, and indeed  s 432(i)
refers to "the information required by this Act." Id.  Finally, it
would make no sense for Congress to allow trea- surers to rely on the
provision of information by others while  at the same time giving
others a virtual carte blanche to  provide inaccurate information. We
believe s 432(i) does not  benefit those not associated with the
committee at issue.


On appeal, amicus Yah Lin ("Charlie") Trie presents an  alternate
theory of truth. Trie relies on the FEC forms  themselves, claiming
that they did not request identification  of the actual source of the
money. This argument might  make some sense if the forms employed
terms other than  those of the statute itself, but they do not.
Schedule A--the  list of names at issue--is simply an itemized list of
"Contribu- tions (other than loans) From [ ] Individuals/Persons Other
 Than Political Committees." This, like the rest of the form,  simply
echoes and implements the language of s 434(b)--a  subsection which,
as we have noted above, requires that the  true source of money be


We thus reject all arguments that the statements alleged in  the
indictment were "literally true."4


* * *


Although Hsia conclusorily restates the theories adopted by  the
district court, most of her briefs are devoted to alternate  theories
for affirming the dismissal.


Hsia's initial claims are all of First Amendment protection.  Her free
exercise arguments (asserted on behalf of IBPS and  its members) we
can dismiss immediately: these are--at  most--a basis for a defense at
trial, not a legal deficiency in  the indictment. Her free speech
argument appears to be  this: since Hsia was simply soliciting
political contributions, 




__________

n 4 We also reject Trie's contention, based on his same theory, that 
the counts must be dismissed because the FEC forms were "funda-
mentally ambiguous." Read in context, the forms have no such 


her actions here were protected speech; therefore the indict- ment must
be subject to strict scrutiny.


This misframes the issue. The only solicitations alleged  are those of
conduit contributions and of nominal "contribu- tions" from the
conduits themselves. Neither is protected.  FECA's reporting
requirements were upheld by the Supreme  Court. See Buckley v. Valeo,
424 U.S. 1, 60-68 (1976). Hsia  has not suggested any plausible
grounds for a right to tamper  with these reports. Cf., e.g., Goland,
903 F.2d at 1258  (rejecting as frivolous defendant's asserted right
to contribute  anonymously via conduits).


Finally, turning to Hsia's argument that FECA constitutes  a pro tanto
repeal of ss 2 and 1001, we agree with the district  court that it
does not.


We work in these cases under a presumption against repeal  by
implication. In United States v. Hansen, 772 F.2d 940  (D.C. Cir.
1985), rejecting an argument that the financial  disclosure
requirements of the Ethics in Government Act  effected a pro tanto
repeal of s 1001, we said that the  presumption rests on the view
"that Congress legislate[s]  with knowledge of former related
statutes, ... and will  expressly designate the provisions whose
application it wishes  to suspend, rather than leave that consequence
to the uncer- tainties of implication compounded by the vagaries of
judicial  construction." Id. at 944-45 (internal quotation omitted). 
Thus we will not find repeal absent "clear and manifest"  evidence


Hsia presents no evidence of this sort. Instead, she relies  on our
decision in Galliano v. United States Postal Service,  836 F.2d 1362
(D.C. Cir. 1988). There the Postal Service,  exercising its
administrative power under the general postal  fraud provisions of 39
U.S.C. s 3005, had attacked as mislead- ing the name and disclaimers
on a solicitation for political  contributions. To the extent FECA set
out standards for  these elements of such a solicitation, we held, it
displaced the  Service's authority under s 3005.


Hsia reads the case broadly, as indicating that FECA  generally
displaces more general statutes. Like the district  court, we
disagree. Galliano concerned the relative scope of  jurisdiction for
two administrative agencies--FEC and the  Postal Service. The
Department of Justice's authority to  enforce general criminal


Unlike the Postal Service, the Department of Justice has  no authority
to develop substantive standards of its own. As  a criminal enforcer,
it brings cases in federal court, where  judges interpret the
underlying statutes without deference to  the Department. See Crandon
v. United States, 494 U.S.  152, 177-78 (1990) (Scalia, J.,
concurring). There is, there- fore, no risk that Congress might have
empowered two bodies  to promulgate conflicting substantive
standards--a result that  Galliano presumed Congress would seek to
avoid. We thus  rely on our general requirement of clear evidence and


* * *


On both statutory and First Amendment grounds, Hsia  cross-appeals the
district court's refusal to dismiss Count One  (conspiracy). On its
face, of course, this refusal is plainly not  a "final decision" over
which 28 U.S.C. s 1291 gives us  jurisdiction. Hsia nevertheless
suggests two grounds for  appellate jurisdiction: the collateral order
doctrine and pen- dent appellate jurisdiction. We reject both.


To qualify as a final collateral order appealable under  s 1291, the
order at issue must, among other things, "be  effectively unreviewable
on appeal from a final judgment,"  Coopers & Lybrand v. Livesay, 437
U.S. 463, 468 (1978)--that  is, it must involve "an asserted right the
legal and practical 




__________

n 5 Galliano did not purport to disturb the long-recognized rule  that
the power of the Department to prosecute criminal violations is  not
displaced merely by the fact of a more focused later enactment,  see
Hansen, 772 F.2d at 945-46 (citing cases)--a corollary to the  rule
that where various criminal prohibitions intersect, a prosecutor  may
choose among them, see United States v. Batchelder, 442 U.S.  114,
123-24 (1979).


value of which would be destroyed if it were not vindicated  before
trial." United States v. MacDonald, 435 U.S. 850, 860  (1978). Hsia's
asserted rights--principally free speech and  free expression--do not
so qualify. Unlike congressional  Speech or Debate immunity, see
Helstoski v. Meanor, 442  U.S. 500 (1979), for example, they are not
rights to avoid trial  altogether. But see United States v. P.H.E.,
Inc., 965 F.2d  848, 855 (10th Cir. 1992) (finding that "unique
confluence of  factors" made First Amendment-based collateral appeal
per- missible). We apply the collateral order doctrine "with the 
utmost strictness in criminal cases," Flanagan v. United  States, 465
U.S. 259, 265 (1984); any rule allowing immediate  appeals for
defendants advancing some First Amendment  reason why an indictment
should be dismissed would expose a  vast array of criminal trials to


Hsia alternatively asserts pendent jurisdiction. But in  dictum in
Abney v. United States, 431 U.S. 651 (1977), the  Supreme Court
appeared to rule out such a theory:


In determining that the courts of appeals may exercise  jurisdiction
over an appeal from a pretrial order denying  a motion to dismiss an
indictment on double jeopardy  grounds, we, of course, do not hold
that other claims  contained in the motion to dismiss are immediately
ap- pealable as well.... [S]uch claims are appealable if, and  only
if, they too fall within Cohen's collateral-order ex- ception to the
final-judgment rule. Any other rule would  encourage criminal
defendants to seek review of, or  assert, frivolous double jeopardy
claims in order to bring  more serious, but otherwise nonappealable
questions to  the attention of the courts of appeals prior to


Id. at 662-63. Though the statement is only dictum, we think  it right
to take it literally, at least as to defendants' attempted  appeals.
Cf. United States v. Zafiro, 945 F.2d 881, 885 (7th  Cir. 1991)
(suggesting that pendent appellate jurisdiction may  allow government
to challenge, at time of an interlocutory  appeal authorized by s
3731, grant of severance to multiple  defendants). An even partly open
door could enable defen-


dants to achieve untoward delay by coupling extra claims with  a weak
interlocutory appeal, and thus would give them an  incentive to raise
weak claims before the trial court on issues  allowing interlocutory
appeals; even where the interlocutory  appeal is brought by the
government, as here, we see no  reason to give the defendant a
windfall opportunity to delay  proceedings via cross-appeal.


* * *


We reverse the district court's dismissal of Counts Two  through Six,
dismiss Hsia's cross-appeal for lack of jurisdic- tion, and remand the
case for proceedings consistent with this  opinion.


So ordered.


Rogers, Circuit Judge, concurring: I join the court in  reversing
dismissal of counts two through six, and remanding  the case for
trial. Our remand order means that any appel- late disposition of
count one could not resolve the entire case  on appeal. Absent such an
efficiency ground for review, or  any other compelling reason to act
now rather than after  trial, there is no basis for exercising pendent
appellate juris- diction over Hsia's challenges to count one. The
court there- fore need not decide whether and under what conditions a 
court may exercise pendent jurisdiction over interlocutory  appeals in
criminal cases that may arise in the future. Con- sequently, the
court's dictum purporting to bar such jurisdic- tion over claims
raised by defendants is unnecessarily broad.


Hsia's pendent appellate jurisdiction claim would fail even  under the
standards applicable to civil cases. Addressing her  challenges to
count one now would not dispose of the case, see  Jungquist v. Sheikh
Sultan Bin Khalifa Al Nahyan, 115 F.3d  1020, 1026-27 (D.C. Cir.
1997), and there is nothing in the  record to suggest that her
cross-appeal is one of those "rare  exceptions" where "substantial
considerations of fairness or  efficiency" justify exercising pendent
jurisdiction. Gilda  Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d
675, 678-79  (D.C. Cir. 1996). Our remand of counts two through six 
demonstrates, moreover, that the issues on cross-appeal are  not so
"inextricably intertwined" with those of the jurisdic- tionally proper
appeal that "review of the former ... [is]  necessary to ensure
meaningful review of the latter." Swint  v. Chambers County Comm'n,
514 U.S. 35, 51 (1995). In  short, Hsia has not advanced a compelling
reason to review  count one before trial.


Hence, the court has no occasion to decide whether exercis- ing pendent
appellate jurisdiction over a criminal defendant's  claim may in some
circumstances be appropriate. Contrary  to the court's suggestion, the
Supreme Court has not foreclos- ed such jurisdiction. The court relies
on dictum from Abney  v. United States, 431 U.S. 651, 662-63 (1977),
that it reads to  hold by negative implication that pendent appellate
jurisdic- tion is not available over claims by defendants in criminal



cases. See opinion at 13. The Supreme Court's subsequent  decision in
Swint suggests a less rigid civil-criminal distinc- tion than this
court attempts to extract from Abney. First,  the Swint Court did not
characterize Abney as completely  barring pendent appellate review in
criminal cases, but rather  as rejecting a rule "loosely allowing"
such review. See Swint,  514 U.S. at 49-50. Second, in Swint, a civil
case, the Court  noted that Abney's reasoning applied in both civil
and crimi- nal contexts, but went on to permit at least some pendent 
jurisdiction in civil appeals. See id. This extension of Abney  to the
civil context does not automatically mean that Swint  likewise extends
to the criminal context, but suggests that the  Abney dictum may not
be a sturdy foundation upon which to  base a categorical limit to this
court's appellate jurisdiction.


All of the reasons offered by the court to deny pendent  jurisdiction
in criminal appeals would also justify withholding  such review over
claims raised by defendants in civil appeals,  see opinion at 13-14,
and yet review is available in civil cases  if certain strict
standards are satisfied. See, e.g., Swint, 514  U.S. at 46-50; Clinton
v. Jones, 520 U.S. 681, 707 n.41 (1997);  Gilda Marx, 85 F.3d at 678.
While these standards may  apply more stringently in criminal cases,
cf. United States v.  Rostenkowski, 59 F.3d 1291, 1301 (D.C. Cir.
1995), it is not  clear that criminal appeals are so fundamentally
different  from civil appeals that a safety-valve to the finality
require- ment applies in one but never in the other, nor that the 
asymmetric scheme posited by the court, categorically fore- closing
review only of defendants' claims, even when the  government has also
filed an interlocutory appeal, see opinion  at 14, necessarily


Accordingly, I would dismiss Hsia's cross-appeal on the  relatively
narrow grounds discussed above, and leave broader  questions for a
case that actually raises them.