text:
    Michael LUECKE, Plaintiff-Appellant, v. SCHNUCKS MARKETS, INC., a Missouri Corporation, Defendant-Appellee.
    No. 95-3080.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 9, 1996.
    Decided June 4, 1996.
    Rehearing and Suggestion for Rehearing En Banc Denied July 24, 1996.

      John MeEachem, argued, St. Louis, Missouri, for appellant.
    Brian Brink, argued, St. Louis, Missouri, for appellee.
    Before WOLLMAN, CAMPBELL, and MURPHY, Circuit Judges.

      The HONORABLE LEVIN H. CAMPBELL, United States Circuit Judge for the First Circuit, sitting by designation.

   LEVIN H. CAMPBELL, Senior Circuit Judge.

Plaintiff-appellant Michael Luecke appeals from a district court order granting summary judgment to defendant-appellee Sehnuck Markets, Inc. (“Schnuek”) on the ground that plaintiffs state law defamation action is preempted by section 301 of the Labor Management Relations Act (LMRA). Based on our reading of the Supreme Court’s rule in Lingle v. Norge Div., Magic Chef, 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), and related eases, we reverse.

I.

Luecke, a Schnuek employee and member of Local 88 of the United Food and Commercial Workers, injured his hand while working on November 10, 1992. He reported to a medical facility selected by Sehnuck to have his hand bandaged, and then was asked to disrobe completely in order to give a urine sample, pursuant to Schnuek’s new unilaterally adopted drug and alcohol policy (effective September 14, 1992). The policy, which was written and disseminated to employees, provided in relevant part: “[I]f an Associate has an ‘on the job accident’ which results in a lost time situation there will be a blood test and/or urinalysis test as a routine part of the investigation of the circumstances present at the time of the accident.” Schnuek says it adopted the policy pursuant to article 5 of its collective-bargaining agreement, which grants management the right to direct its work force.

Luecke says that he offered to produce a urine sample with his clothes removed except for the part of his shirt around his bandaged wrist. This apparently was unacceptable to medical personnel. Luecke left without giving a urine sample. That afternoon, Jenise Kramer, a Sehnuck manager, called Luecke’s ' house and was told that he was not there. Luecke says that Kramer then informed his wife, without knowing who she was, that Luecke had “refused” to take a drug test, and that his employment would be terminated within 24 hours if he did not take one. Kramer offers a somewhat different version of this conversation in an affidavit; she says that after medical personnel informed her that Luecke had refused to take a drug test, she tried to contact him at home and spoke with someone “who eventually identified herself as being Mr. Luecke’s wife.” Kramer left a message whose “substance” was that after being involved in a work-related accident, Luecke had “failed to have a drug test,” and “if he failed to take a drug test as soon as possible, his employment could be terminated.”

Kramer and Luecke spoke on November 11, and the following day, Luecke took a drug test. As the results were negative, no discipline followed. Thereafter, Kramer and other Schnuck employees are said by Luecke to have published within and without the company the allegedly false statement that Luecke had “refused” to take a drug test.

In October 1994 Luecke sued Schnuck in state court, alleging defamation based upon Kramer’s communication to Luecke’s wife, and Kramer’s and other employees’ publication of Luecke’s alleged refusal to take a drug test. Schnuck removed the action to federal court, arguing that plaintiffs claim' arose under section 301 of the LMRA, which confers federal jurisdiction over actions for a breach of a contract between an employer and a labor organization. Schnuck then moved to dismiss the action, or in the alternative, for summary judgment, contending that plaintiffs’ claim was preempted, was time-barred, and failed to state a cause of action. The district court granted summary judgment to Schnuck, finding that plaintiffs state law defamation claim was preempted by section 301 of the LMRA. This appeal followed.

II. Discussion

We review a grant of summary judgment de novo to determine whether the record shows “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In so doing, we construe the facts in the light most favorable to the non-movant, plaintiff.

The dispositive question is that of subject matter jurisdiction. In removing the case to federal court, the defendant asserted federal question jurisdiction on the theory that the LMRA preempted plaintiffs state law defamation claim. Plaintiff countered that the claim was not preempted and that the case should be returned to the state court.

For federal question jurisdiction, the federal question generally must appear on the face of the complaint. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). An exception to this rule, often applied in labor cases, holds that when “an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Id. at 393, 107 S.Ct. at 2430 (emphasis supplied). Applying this exception, the district court held that plaintiffs defamation claim was “inextricably intertwined” with the terms of Schnuck’s coheetive-bargaining agreement with its employees, and was therefore preempted by section 301 of the LMRA. See id. at 394, 107 S.Ct. at 2431 (“Section 301 governs claims founded directly on rights created by coheetive-bargaining agreements, and also claims ‘substantially dependent on analysis of a coheetive-bargaining agreement.’ ”) (internal citation omitted). The district court held that the statements challenged by Luecke “involve the ongoing employment relationship between plaintiff and defendant and concern a work-related injury and its subsequent investigation. As such, they are governed by the grievance procedures set forth in the collective-bargaining agreement.” The court also quoted from an early settlement letter to Schnuck from Luecke’s attorney, who referred to the statements in question as occurring “[a]s a result of Schnuck’s attempt to enforce a drug testing policy in violation of the Cohective Bargaining Agreement with Local 88.” Concluding that the case was properly removed, the court granted summary judgment in defendant’s favor on preemption grounds.

The Supreme Court has made clear that a state law claim is preempted by section 301 only if the claim is “inextricably intertwined” with the terms of a collective-bargaining agreement. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 1912, 85 L.Ed.2d 206 (1985). The unanimous Court has stated, “[A]n application of state law is pre-empted by § 301 of the Labor Management Relations Act of 1947 only if such application requires the interpretation of a collective-bargaining agreement.” Lingle, 486 U.S. 399 at 413, 108 S.Ct. 1877 at 1885 (footnote omitted); see also Livadas v. Bradshaw, — U.S. -, -, 114 S.Ct. 2068, 2078, 129 L.Ed.2d 93 (1994) (“[W]e were clear [in Lingle ] that when the meaning of contract terms is not the subject of dispute, the bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished[.]”) (citing Lingle, 486 U.S. at 413 n. 12, 108 S.Ct. at 1885 n. 12). The proposition follows that “a state law claim may involve analysis of the same set of facts as a claim arising under the collective bargaining agreement without compelling preemption.” Hanks v. General Motors Corp., 906 F.2d 341, 343 (8th Cir.1990) (citing Lingle, 486 U.S. at 407-408, 108 S.Ct. at 1882-1883).

In Lingle, an employee’s state-law action against her employer alleging that she was discharged in unlawful retaliation for claiming worker’s compensation benefits was declared to be independent of the collective-bargaining agreement even though the agreement expressly prohibited discharge without proper or just cause and provided a grievance procedure to resolve any disputes over the interpretation or application of the agreement. Lingle, 486 U.S. at 401-402, 108 S.Ct. at 1879. The Court explained that the pertinent factual inquiry in the state retaliatory discharge action did not turn on any term of the agreement, but rather on the employee’s conduct and the employer’s conduct and motivation. See id. at 407, 108 S.Ct. at 1882. Because resolution of the state-law action did not require an interpretation of the eoHective-bargaining agreement, allowing it to be independently brought was “consistent both with the policy of fostering uniform, certain adjudication of disputes over the meaning of collective-bargaining agreements and with cases that have permitted separate fonts of substantive rights to remain unpre-empted by other federal labor-law statutes.” Id. at 410-411, 108 S.Ct. at 1884.

In light of the foregoing, we conclude that the district court erred in holding that plaintiffs state defamation action was preempted. Luecke alleges in the action that Kramer and other Schnuck employees, acting within the scope of their authority, published false statements with total disregard for their falsity, injuring his reputation in the community and business profession. To recover damages under state law, Luecke will need to establish that Kramer or other employees stated that he had “refused” to take a drug test, that the statements were false and were made "with knowledge of or reckless disregard as to their falsity, that they were heard by others, and that they tended to expose Luecke to hatred or ridicule and damaged his reputation. Nazeri v. Missouri Valley College, 860 S.W.2d 303 (Mo. banc 1993); Missouri Approved Instruction (MAI) 23.10(2). Keeping in mind the central factual inquiry — what was said to whom, whether it was false and knowingly or recklessly so, and whether damages resulted — we look to see whether an interpretation of the collective-bargaining agreement will be required in order to resolve the state claim. The answer, on the record here, is “no.”

Schnuck contends that resolution of the defamation claim and its defenses depends upon interpreting two articles of the collective-bargaining agreement “and/or policies implemented pursuant to that agreement.” First, Schnuck argues that it adopted the drug testing policy, enforcement of which underlay the allegedly defamatory statements, pursuant to authority conferred in article 5 of the agreement, giving management the right to direct its work force, “including the right to plan, direct and control operation, ... [and] suspend and discharge for proper cause.” Second, article 6 establishes grievance procedures to be followed for “any differences, disputes or complaints aris[ing] over the interpretation or application of the contents of this Agreement.” Conferences are pursued first, then arbitration if necessary.

But this is not a case where the state-law defamation complaint attacks the propriety of Sehnuek’s drug policy or Schnuck’s right to require drug tests. What is challenged is the employer’s alleged dissemination to others of supposedly false information, i.e., that plaintiff had refused to submit to the test. Plaintiffs counsel reiterated at oral argument that his client did not challenge Schnuck’s right to require its employees to be tested. Nor is plaintiff contesting management’s right to suspend or discharge an employee for failure to take the test. Luecke took the drug test, passed it, and was not suspended or discharged. Resolving Luecke’s defamation claim will not depend upon construing article 5: no express or implied term in that provision guides the factual inquiry into whether the speakers actually said Luecke refused to take the test, whether their statements were false, whether malice attached, and whether damages resulted. See Hawaiian Airlines, Inc. v. Norris, - U.S. -, -, 114 S.Ct. 2239, 2248, 129 L.Ed.2d 203 (1994) (reiterating Lingle’s holding that a state law claim involving “purely factual questions” that do not turn upon the terms of a collective-bargaining agreement are not preempted by section 301); see also Hanks, 906 F.2d at 345 (tort claims against employer who required employee to work with a person who sexually abused her daughter were not preempted, as “none of the terms or provisions of that agreement shed any light on the appropriateness of [the employer’s] conduct[]”); Tellez v. Pacific Gas & Elec. Co., 817 F.2d 536, 538 (9th Cir.) (defamation claim against employer who distributed a suspension letter saying employee had bought drugs on the job was not preempted, as claim did not assert rights under the collective-bargaining agreement, and the agreement did not require management to send such a letter or provide guidelines if such a letter was sent), cert. denied, 484 U.S. 908, 108 S.Ct. 251, 98 L.Ed.2d 209 (1987).

Neither is Luecke’s claim dependent upon a construction of article 6, which sets forth grievance procedures. As in Lingle, these procedures are available for a broad range of disputes, and the mere possibility that Luecke could file a grievance on these same facts does not dictate that his claim is preempted. See Lingle, 486 U.S. at 408-410, 108 S.Ct. at 1882-1884; Hanks, 906 F.2d at 345 (“The crucial issue under Allis-Chalmers is not whether a claim can be taken through the grievance process but whether the state law tort claim being asserted purports to give meaning to the terms of the labor contract.”) (citing Keehr v. Consolidated Freightways of Delaware, Inc., 825 F.2d 133, 137 (7th Cir.1987)). Here, the state law defamation action will not, to any material degree, give meaning to the terms of article 5 or 6. The record shows that the union grieved the implementation of the drug testing policy pursuant to article 5. Luecke is not repeating that effort; he represents that he has no intention to do so.

Schnuck nevertheless maintains that the state action would require interpreting article 6, because permitting Luecke to bring a defamation action in state court opens the door to other employees doing the same and forgoing arbitration. The short answer to this is that employees are not required to use grievance procedures exclusively, in preference to state lawsuits, so long as a parallel state action does not require interpreting the colleetive-bargaining agreement. Lingle, 486 U.S. at 408-410, 108 S.Ct. at 1882-1884.

Nor do Schnuck’s likely defenses depend upon an interpretation of the collective-bargaining agreement. Schnuck says that it will assert a defense of qualified privilege which will require reference to the agreement. To make out such a defense, Schnuck would have to show that an otherwise defamatory statement was made in good faith by a speaker who had an interest in or duty with respect to the subject matter, to a person having a corresponding interest or duty. Carter v. Willert Home Products, Inc., 714 S.W.2d 506, 513 (Mo. banc 1986) (citation omitted).

Schnuck contends that in speaking to Luecke’s wife, its manager, Jenise Kramer, was carrying out her duty to ensure compliance with the drug testing policy. Her communications, the argument goes, were simply made in good faith furtherance of Schnuck’s right to control the work force under article 5. However, Luecke’s defamation claim does not deny that Kramer was acting pursuant to authority granted by Schnuck, nor that Schnuck had a right to control its work force. What plaintiff contests is Kramer’s right to pass along to his wife or others the allegedly false information about his refusal to be tested. Article 5, however, said nothing about the procedures to be followed in conducting investigations and enforcing policies of the employer. The eollective-bargaining agreement in effect at the time this action arose made no mention whatever of a drug testing policy or of procedures for enforcement, nor did it impose any requirement of confidentiality.

We recognize that, since the incident in question, Schnuck has expressly incorporated the drug testing policy into its current collective-bargaining agreement. The new agreement apparently contains language prohibiting dissemination of records or their contents to any third party except with the employee’s written consent or for other limited reasons. We need not, and do not, decide whether a defamation claim of the type brought here would be preempted under these express terms; it is enough that the earlier controlling agreement was entirely devoid of such terms. To be sure, two months before the present incident, management had unilaterally promulgated a written drug testing policy which included the same confidentiality provision. But absent its incorporation within the collective-bargaining agreement — or absent incorporation of a compatible management rights clause, e.g., covering the performance of medical examinations, or some longstanding practice or custom from which to infer incorporation — we do not believe that Schnuek’s unilateral adoption of the policy rendered its language, in these circumstances, a literal part of the agreement for purposes of the test set out in Lingle. We conclude that while the provisions of the collective-bargaining agreement will perhaps be “consulted,” they need not be interpreted in order to resolve any qualified privilege defense that Schnuck may raise in the state defamation proceeding. See Livadas, — U.S. at -, 114 S.Ct. at 2079 (“the bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished”) (citing Lingle, 486 U.S. at 413 n. 12, 108 S.Ct. at 1885 n. 12).

The instant case is distinguishable from Johnson v. Anheuser Busch, Inc., 876 F.2d 620 (8th Cir.1989), in which an employee accused by co-workers of slashing tires in a company lot was discharged for violating plant rules. He grieved the discharge, was reinstated, and then brought multiple tort claims, including libel and slander, against his employer and co-workers. This circuit held that the libel claim against the employer was preempted by section 301. Because the allegedly false accusations resulted in the employee’s discharge for violating specific misconduct rules, consideration of the collective-bargaining agreement was needed to ascertain whether the discharge was wrongful. See id. at 624. The slander claim against the co-workers was also preempted, because the allegedly false accusations “relate[d] to a dispute over an event occurring at the workplace and would be governed by the grievance procedure” in the agreement. Id. However, the libel claim against a co-worker was not preempted, because the elements of that claim did not require construction of any term of the agreement. See id. at 625.

Unlike Johnson, Luecke’s claim against his employer does not depend on construing a term of the collective-bargaining agreement. Luecke ultimately took the required drug test, which was negative, and no discharge or other discipline resulted. The allegedly defamatory statement by Kramer was part of the company’s attempt to enforce Schnuek’s drug testing policy, but the collective-bargaining agreement then in effect said nothing about such a policy or its enforcement, or even about some more general management right to require medical examinations to ensure employees’ fitness. But cf. Strachan v. Union Oil Co., 768 F.2d 703, 705 (5th Cir.1985) (holding that suspended employees suspected of drug use were preempted from suing their employer for defamation and other torts, where “[t]he issues concerning the medical examinations and involving the blood and urine tests are clearly within the power of the company under the collective bargaining agreement to insist upon medical examinations when there is doubt as to the physical condition of an employee at work[ ]”); see also Bagby v. General Motors Corp., 976 F.2d 919 (5th Cir.1992) (holding that defamation claim arising out of temporary suspension of worker was preempted, where employer followed specific disciplinary procedures in collective-bargaining agreement and company policy).

As we find that Luecke’s defamation action is not preempted by section 301, there is no federal question authorizing federal jurisdiction over the case. We remand the case to the district court with instructions to remand it to the state court from which it was removed.

So ordered.

      . As complete diversity was not satisfied here, the presence of a federal question was necessary for a proper removal.

      . Section 301 provides:
      (a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, ... may be brought in any district court of the United States having jurisdiction of the parties____
      29 U.S.C. § 185(a).

      . Although subsection (1) of MAI 23.10 generally governs defamation claims brought by a private plaintiff, the elements stated here are derived from 23.10(2), which applies when a defendant’s statements are qualifiedly privileged. At oral argument, the defendant’s counsel said that Schnuck would assert a qualified privilege defense. To the extent this defense is applicable, plaintiff would carry an additional burden of showing that the defamatory statements were made with malice. Carter v. Willert Home Products, Inc., 714 S.W.2d 506, 513 (Mo. banc 1986).

      . In ascertaining whether the state action will require an interpretation of the collective-bargaining agreement, we consider probable defenses as well as the claim itself. See Hanks v. General Motors Corp., 859 F.2d 67, 70 (8th Cir.1988).

      . The parties have not included in the record on appeal a complete copy of the collective-bargaining agreement in effect at the time this action arose. We accordingly limit our review to the provisions relied upon by Schnuck in support of preemption.

      . Cf. Schlacter-Jones v. Gen. Tel., 936 F.2d 435, 441 (9th Cir.1991) (employee’s state law claims were preempted by section 301 where the “allegations turn on the propriety of [the companyl’s Drug Policy and cannot be assessed without examining the CBA to determine whether the Drug Policy was a valid term and condition of employment]]”); Jackson v. Liquid Carbonic Corp., 863 F.2d 111, 118, 121 (1st Cir.1988) (employee’s state law claims were preempted by section 301 where “[t]he central thesis of his suit questions whether [the employee’s drug-testing protocol was reasonable]]" in light of the union’s cession of authority to the employer to conduct medical examinations and to post reasonable rules), cert. denied, 490 U.S. 1107, 109 S.Ct. 3158, 104 L.Ed.2d 1021 (1989).

      . Luecke’s counsel stated in an early settlement letter that the defamatory statements occurred "[a]s a result of Schnuck’s attempt to enforce a drug testing policy in violation of the Collective Bargaining Agreement with Local 88.” The letter was written a few months after the union filed its grievance regarding that policy. The complaint, filed almost two years later, contains no indication that the drug testing policy was being challenged in the action, and Luecke’s counsel expressly confirmed at oral argument that it was not.

      . The recent collective-bargaining agreement provides that company records "shall be kept in strict confidence, and neither said records nor the contents thereof shall be disseminated to any third party except upon written authorization by the Associate, or to the extent required by law, or to the extent required by the Company for use in any proceeding involving the Associate.”

      . See Jimeno v. Mobil Oil Corp., 66 F.3d 1514 (9th Cir.1995) (refusing to imply into collective-bargaining agreement a unilaterally adopted, unwritten termination policy followed in practice for years, absent clear and unmistakable evidence that the union accepted the policy and waived its members’ rights under state law); but cf. Schlacter-Jones, 936 F.2d at 440 ("A drug and alcohol testing program is a working condition whether or not it is specifically discussed in the [collective-bargaining agreement].”) (citation omitted); Jackson, 863 F.2d at 120 (viewing a unilaterally passed drug testing policy as a "working condition” within the scope of a collective-bargaining agreement, to be evaluated for reasonableness, where union had accepted employer’s authority to conduct medical examinations and to pass “reasonable" rules).


source: Caselaw Access Project

author: WOLLMAN, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Kanchan Bala SHARMA, also known as Kay Bala, also known as Kay Daken, also known as Kanchan B. Daken, Appellant.
    No. 95-2432.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 12, 1995.
    Decided June 4, 1996.
    Bruce C. Houdek, Kansas City, MO, argued, for appellant.
    Linda L. Parker, Asst. U.S. Atty., Kansas City, MO, argued, for appellee.
    Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.
   WOLLMAN, Circuit Judge.

Defendant Kanchan Bala Sharma appeals from the imposition at sentencing of a fine of $100,000. We vacate the district court’s fine assessment and remand for reconsideration of the fine.

I. Background

On May 13, 1991, FBI agents received information from the Department of Housing and Urban Development (HUD) that more than one million dollars had been skimmed from seven different HUD-insured and/or co-insured multi-family housing projects that were owned and operated by Sharma and several of her family members.

Sharma pleaded guilty to a one-count information charging her with program fraud in the amount of $101,467.89 in violation of 18 U.S.C. §§ 666, and 2. Her offense level was calculated to be twelve, with a criminal history category of one, providing for a sentencing range of ten to sixteen months’ imprisonment (part of the term of which may be satisfied by supervised release) and a fine of $3,000 to $30,000. See U.S.S.G. §§ 501.1(d) and 5E1.2(c)(3).

The district court initially sentenced Sharma to five months’ imprisonment and three years’ supervised release. It ordered her to pay $101,467.89 in restitution and assessed a fine of $100,000. In a motion for correction of sentence, Sharma contested the $100,000 fine as an improper departure from the Guidelines. In response to this motion, the district court vacated the first sentence and gave the required notice that the court was considering an upward departure with respect to the fine. See Burns v. United States, 501 U.S. 129, 138, 111 S.Ct. 2182, 2187, 115 L.Ed.2d 123 (1991) (requiring a district court to give notice of intent to depart from Guidelines). The court then entered an order clarifying that the sentence was not an upward departure under the Guidelines, but again noted that if the fine were construed to be a departure the order was notice that the court was contemplating such a departure. Upon resentencing, in addition to imprisonment, supervised release, and restitution, a $100,000 fine was again imposed. Sharma appeals that fine, arguing that it falls outside the applicable guidelines range; that the court failed to adequately justify its upward departure from that range; and that even if the fine does not constitute an upward departure, the court failed to consider the required factors set forth in U.S.S.G. § 5E1.2(d), before setting the amount of the fine.

II. The Fine

The Guidelines set out a procedure for a district court to follow in determining the amount, if any, that a defendant should be fined. Section 5E1.2(a) specifies that “the court shall impose a fine in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine.” If the district court determines that a fine is appropriate, it must then look to section 5E1.2(c) for the appropriate fine range. The Guidelines further require the court to consider a list of specified factors in determining the amount of the fine. See U.S.S.G. § 5E1.2(d).

The fine imposed must be within the specified range unless: 1) the defendant establishes an inability to pay; 2) the fine is insufficient to pay the government’s costs in relation to defendant’s incarceration; 3) a statute requires otherwise; or 4) the district court determines that departure is appropriate. U.S.S.G. § 5E1.2(b),(f),(i), and application note 4.

In addition to the requirement that the district court consider the section 5E1.2(d) factors — a prerequisite to the imposition of any fine — the district court’s burden is enhanced when it decides to depart from the specified guidelines range. Departure from the applicable range is permissible only upon a finding that “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b); see also United States v. Duranseau, 26 F.3d 804, 811 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 341, 130 L.Ed.2d 298 (1994). To aid in this analysis, the Sentencing Commission has provided a non-restrictive list of certain factors that were not fully considered in formulating the Guidelines and would thus serve as an appropriate basis for departure. See U.S.S.G. § 5K2. Departure is appropriate “only in the extraordinary case — the case that falls outside the heartland for the offense of the conviction.” United States v. McFarlane, 64 F.3d 1235, 1239 (8th Cir.1995) (quoting United States v. Jackson, 30 F.3d 199, 201 (1st Cir.1994)). The statutory maximum, which is set out in 18 U.S.C. § 3571(b) for various categories of offenses, establishes a ceiling above which the district court may not depart.

The district court’s imposition of a fine above the applicable $3,000 to $30,000 range constitutes an upward departure. Accordingly, we review the fine using the three-step analysis applicable to an upward departure. See United States v. Otto, 64 F.3d 367, 371 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 956, 133 L.Ed.2d 879 (1996). We consider: (1) whether, as a question of law, the circumstances the district court relied on for departure are sufficiently unusual in a Mnd or degree to warrant departure; 2) whether, as a question of fact, the circumstances justifying departure actually exist; and 3) whether the sentence is reasonable. Id.

With respect to the first two questions, the district court justified its upward departure on the grounds that “the Guidelines fail in any measure to reflect the willful, deliberate, and repetitious malfeasance of defendant in the management of the property and its woefully deplorable condition when she returned it to HUD.” Articulated as such, the district court’s reason for departure may very well have been appropriate. The record, however, is devoid of any factual support for the court’s reasoning.

The government arrived at Sharma’s re-sentencing hearing prepared to offer the testimony of a witness who would establish the condition of the property when it was returned to HUD. At that point, Sharma’s counsel requested a continuance to prepare rebuttal evidence on the issue. The request was denied, and the $100,000 fine was imposed without hearing evidence from either party on the issue.

Without record support, the district court’s conclusory statements justifying the departure do not afford us an adequate basis to determine whether an upward departure from the fine range was based on a factor not adequately considered in the Guidelines. See United States v. Cammisano, 917 F.2d 1057, 1064 (8th Cir.1990). Thus, we vacate the imposition of the fine and remand the case for the entry of further findings following the introduction of such evidence as the parties may offer concerning the appropriateness of an upward departure. In addition to a consideration of the factors set forth in section 5E1.2(d) of the Guidelines, any decision to depart upward from the guideline range will, of course, include an explanation for both the district court’s decision to depart and the extent of the departure. Id. at 1064.

The fine is vacated, and the case is remanded to the district court for further proceedings consistent with this opinion.

      . We reject the argument that the alternative maximum fine provision of U.S.S.G. § 5E1.2, application note 2, trumps the applicable Guidelines range and thus renders the fine of $100,000 not a departure. Although the Guidelines commentary does provide that a departure may be warranted when two times either the amount of gain to the defendant or the amount of loss caused by the defendant exceeds the maximum of the fine guideline range, such a deviation remains a departure, and as such must be justified under the provisions of 18 U.S.C. § 3553. See U.S.S.G. § 5E1.2, application note 4.


author: WILSON, District Judge.

text:
    UNITED STATES of America, Appellee, v. Richard ESTRADA, also known as Taco Estrada, Appellant.
    No. 94-2816.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 4, 1996.
    Decided June 4, 1996.

      Kent R. Cutler, Sioux Falls, SD, for appellant.
    Ted McBride, Sioux Falls, SD, for appellee.
    Before RICHARD S. ARNOLD, Chief Judge, FAGG, Circuit Judge, and WILSON, District Judge.

       The Hon. William R. Wilson, Jr., United States District Judge for the Eastern District of Arkansas, sitting by designation.

   WILSON, District Judge.

Defendant/appellant Richard Estrada (“Estrada”) was convicted in the United States District Court, District of South Dakota, of conspiracy to distribute controlled substances, a violation of 21 U.S.C. § 846, and using or carrying a firearm in relation to drug trafficking, a violation of 18 U.S.C. § 924(c)(1). Defendant appealed and this Court affirmed both the conspiracy conviction and the firearm conviction. United States v. Estrada, 45 F.3d 1215. After the decision was rendered in this case, the United States Supreme Court decided Bailey v. United States, 516 U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Estrada appealed this Court’s decision and the United States Supreme Court granted writ of certiorari. The Supreme Court vacated this Court’s judgment and remanded the case for further consideration in light of its recent holding in Bailey, supra. Estrada v. United States, - U.S. -, 116 S.Ct. 664, 133 L.Ed.2d 516 (1995).

In Bailey, the Supreme Court held that to sustain a conviction under 18 U.S.C. § 924(e)(1), the government must present “evidence sufficient to show an active employment of the firearm by the defendant.” Bailey, 516 U.S. at -, 116 S.Ct. at 505. The Court further stated that the mere storage of weapons in close proximity to drugs or drug proceeds is insufficient to constitute “active employment.” Bailey at -, 116 S.Ct. at 508. Additionally, the Court concluded that “[i]f the gun is not disclosed or mentioned by the offender, it is not actively employed, and it is not ‘used’.” Id.

As this Court noted in its prior decision, a Mach 10 and a .22 caliber revolver were found in co-conspirator Dosset’s bedroom. A partially loaded magazine for the Mach 10 was found within five to seven feet from the bed in Dosset’s bedroom. There was no evidence at trial suggesting that Estrada “actively employed” the firearms as that phrase has been defined by Bailey, supra. Absent such evidence, a conviction under 18 U.S.C. § 924(c)(1) cannot be sustained.

In light of the Supreme Court’s holding in Bailey, Estrada’s conviction for using or carrying a firearm in relation to drug trafficking is reversed for lack of evidence and the case is remanded to the district court for resentencing on the remaining count. Estrada’s conspiracy conviction, however, is again affirmed.


author: HEANEY, Circuit Judge.

text:
    UNITED STATES of America, Appellant, v. Everett Kyle HALL, also known as Eric, also known as Shorty; Roy Lee Hall; Randall Joe Hall, Appellees.
    No. 96-1386.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 15, 1996.
    Decided June 4, 1996.

      Michael Fagan, St. Louis, MO, argued, for appellant.
    John Kizer, Springfield, MO, argued, for Roy Hall.
    Thomas Carver, Springfield, MO, argued, for Everett Hall.
    Michael Baker, Springfield, MO, argued, for Randall Hall.
    Before BOWMAN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
   HEANEY, Circuit Judge.

The district court granted defendants’ motion for a new trial based on the jury foreperson’s one-page affidavit stating that on more than one occasion he and other jurors overheard the judge at a bench conference discussing evidence of the defendants’ involvement in other, serious, criminal activity. We remand the ease to the district court to conduct an evidentiary hearing in accordance with this opinion. We retain jurisdiction in this matter, however, and if further attention by this court becomes necessary, the clerk of court will provide the parties with an accelerated briefing schedule.

I. BACKGROUND

Three defendants, Everett Kyle Hall, Roy Lee Hall, and Randall Joe Hall, were tried by a jury and convicted of conspiracy to distribute methamphetamine and to possess methamphetamine with intent to distribute in violation of 21 U.S.C. § 846. Everett Hall and Randall Hall were also tried and convicted of the use of a firearm during the commission of a drug-related felony in violation of 18 U.S.C. § 924(c), and for possession of an unregistered silencer in violation of 26 U.S.C. §§ 5841; 5861(c), (d) and (i); and 5871.

The parties appeared for sentencing on November 29, 1995. At that time, the defense presented the court with an affidavit from the jury foreperson and made a motion for a new trial based on the affidavit. The affidavit stated in full:

Dining the course of the trial I heard the Judge’s comments concerning whether there would be evidence of chop shop, prostitution and murder admitted at the trial.
From these statements, I felt that the Defendants] were involved in more than they were on trial for. I am also aware that the jury was apprehensive and fearful of retaliation from the Defendants or the Defendants’] family, so much so that some jurors took different routes to and from the courthouse during the trial.
The comments relating to evidence of a chop shop, prostitution, and murder were heard on several occasions. These comments were heard by other members of the jury and were discussed by the jury panel during recesses. Discussion of the comments occurred at times when all the jurors were present and on other occasions by fewer than all jurors.

At trial, the court had made references to chop shop, prostitution, and murder in two bench conferences. Both bench conferences related to one of the court’s pre-trial orders. Prior to trial, counsel for the defendants indicated that they might attempt to impeach one of the government’s primary witnesses by introducing evidence that she made prior, false accusations that the defendants were involved in other crimes, including a murder. The court determined that none of the evidence relating to the alleged prior crimes would be admitted. During cross-examination of a government witness, counsel for one of the defendants appeared to tread on the court’s pre-trial ruling by asking the witness if she had ever engaged in prostitution. When the government objected, the court called all counsel to the bench and warned:

I said Monday morning that you were not to go into the prostitution claims____ We’re not going into any of those, only the issue involved in this case____ Well, I’m telling you you’re not to go into the prostitution [or] ... the murder or the chop shop.

Tr. at 629-30. Shortly thereafter, during another bench conference, the court told counsel:

Well, if you’re getting — if you are wanting to offer evidence relative to a murder, relative to the chop shop, relative to the prostitution, relative to the motorcycle club, it’s not to be gone into____ Well, that would be evidence of a murder and I’m saying that you cannot go into that, so your offer will be refused.

Tr. at 664-65. By all accounts, neither the court nor any lawyer intended the jury to overhear the substance of these conversations. In fact, until the affidavit came to light, no party was aware that any juror had overheard any portion of the bench conferences.

The court granted a new trial to each defendant based on the single juror affidavit without gathering any other evidence or making a further investigation. The government now appeals the district court’s order.

II. DISCUSSION

A Evidentiary Hearing

We review the court’s decision to grant a new trial with particular caution. Affirmance would nullify a jury trial that lasted more than a week, consumed significant judicial resources, and involved an investment of substantial time by the lawyers on all sides. At the same time, few rights of an accused person are more fundamental or more sacred than the Sixth Amendment right to an impartial jury. Because each of the competing interests is strong, we hesitate to reach a final decision without a complete picture of what extraneous information came before the jury. In this case, one affidavit does not provide sufficient evidence on which to reach a fully informed decision. Thus, it was an abuse of discretion for the court to grant the defendants’ motion for a new trial absent an evidentiary hearing.

Faced with similar situations, this and other courts have consistently had the benefit of in-depth evidentiary hearings regarding the nature and effect of extraneous jury contact. See, e.g., United States v. Blumeyer, 62 F.3d 1013, 1015 (8th Cir.1995) (in response to allegation that a juror had consulted an outside lawyer, district court interviewed all jurors); United States v. Cheyenne, 855 F.2d 566, 567 (8th Cir.1988) (district court conducted evidentiary hearing to question jurors about the use of a dictionary during deliberations); United States v. Martin, 740 F.2d 1352, 1357 (6th Cir.1984) (remanding for the limited purpose of an evidentiary hearing to determine whether jurors overheard judge’s comments relating to defendant’s guilt spoken during bench conference), cert. denied, 472 U.S. 1029, 105 S.Ct. 3506, 87 L.Ed.2d 636 (1985).

What concerns us most is the court’s failure to explore the nature of the jury’s exposure to extraneous, prejudicial information beyond what the single affidavit recounts. Therefore, we remand the matter to the district court to make a full factual inquiry. Once the court has a complete picture of what events transpired, it may, of course, grant a new trial based on the taint of even a single juror. United States v. Delaney, 732 F.2d 639, 643 (8th Cir.1984) (holding that if a single juror is improperly influenced, a verdict is as unfair as if all jurors were improperly influenced).

B. Rule 606(b)

Generally, to impeach a jury verdict, “the [defendants] must (1) produce evidence which is not barred by the rule of juror incompetency and (2) produce evidence sufficient to prove grounds recognized as adequate to overturn the verdict.” United States v. Krall, 835 F.2d 711, 715 (8th Cir.1987) (citing United States v. Eagle, 539 F.2d 1166, 1169-70 (8th Cir.1976), cert. denied, 429 U.S. 1110, 97 S.Ct. 1146, 51 L.Ed.2d 563 (1977)). The court’s first inquiry, therefore, is whether the affidavit constitutes admissible evidence under the Federal Rule of Evidence 606(b), which governs jurors’ competency to testify with respect to their deliberations. The rule provides:

Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear on any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for those purposes.

Fed.R.Evid. 606(b) (emphasis added). The advisory committee notes to the 1972 proposed rule give some insight into competing values the Rule 606(b) seeks to protect:

The familiar rubric that a juror may not impeach his own verdict, dating from Lord Mansfield’s time is a gross oversimplification. The values sought to be promoted by excluding the evidence include freedom of deliberation, stability and finality of verdicts, and protection of jurors against annoyance and embarrassment. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915). On the other hand, simply putting verdicts beyond effective reach can only promote irregularity and injustice. The rule is an accommodation between these competing considerations.

All but the second paragraph of the juror’s affidavit falls squarely within the exception of Rule 606(b), that is, it constitutes testimony on the narrow question whether extraneous, prejudicial information was improperly brought before the jury’s attention. In substance, the affidavit reveals that at least one juror heard prejudicial information not in evidence and that the information was discussed among the jurors. As the district court specifically stated, “the comments made by the Court during various bench conferences that related to murder, chop shops, and prostitution were not intended to be heard ... or considered by the jury.” Order, No. 95-03020-10/03-CR-S-4, filed 1/16/96 (hereinafter “Order”) at 4. Thus, under the rule’s exception, the district court properly considered this portion of the affidavit and on remand may consider other evidence that is similarly restricted to the question of what, if any, extraneous information the jury heard.

The second paragraph of the affidavit, however, contains impermissible testimony. In the first sentence, the foreperson reveals what impact the extraneous information had on him by stating: “From these statements, I felt that the defendant ]s were involved in more than they were on trial for.” He then goes on to expose the thought processes of the other jurors: “I am also aware that the jury was apprehensive and fearful of retaliation from the Defendants or the Defendants’] family, so much that some jurors took different routes to and from the courthouse during the trial.” Although it is not clear from the affidavit whether the jurors’ alleged fears were independent of or dependent on the overheard information relating to “chop shop, prostitution and murder,” Rule 606(b) prohibits its consideration in either case. Therefore, the district court should not have considered those statements in the second paragraph of the affidavit in its ruling on the new trial motion. Moreover, the court should not consider any other evidence that bears directly on the jurors’ decision-making processes.

C. Presumption of Prejudice

The court must next consider whether the admissible evidence is sufficient to overturn the jury verdict. Certain jury contaminations are so prejudicial that they create a rebuttable presumption of prejudice. Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954) (presumption created by any private communication, contact, or tampering with a juror during trial about the matter pending before the jury unless made in pursuance of known rules and directions of the court). Our court has held, however, that the presumption of prejudice does not apply unless the extrinsic contact relates to “factual evidence not developed at trial.” Cheyenne, 855 F.2d at 568 (holding no abuse of discretion for district court to deny new trial motion where jurors consulted dictionary for definitions of “callous” and “wanton”). Therefore, we do not apply the presumption of prejudice if the extraneous contact pertains to purely legal issues. Blumeyer, 62 F.3d at 1016.

In this case, the district court held that the presumption of prejudice applied. Order at 5-6. The government argues that the overheard comments related only to a question of law — i.e., the judge’s ruling on the admissibility of evidence. We disagree. The comments relate to factual questions that go to the heart of the jury’s role: to weigh the relative credibility of witnesses in a ease that turned almost entirely on whose version of events the jury found more credible. The jury’s duty to resolve factual questions is severely impaired when it improperly receives information that besmirches the defendants’ character. It is alleged that several jurors overheard mention of the defendants’ connection to other crimes including murder, that one or more of those jurors transmitted the information to the full jury panel, and that jurors discussed it with each other during trial recesses. Such conduct would certainly trigger a presumption of prejudice to the defendants.

Once the presumption is established, the burden will rest heavily with the government to establish that the extraneous juror contact was harmless to the defendants. Remmer, 347 U.S. at 229, 74 S.Ct. at 451. Thus, the presumption of prejudice applies, and it will be incumbent on the government to prove that the extraneous contact was harmless beyond a reasonable doubt. See Blumeyer, 62 F.3d at 1017. We employ an “objective test ... to assess whether the extraneous information would likely affect a typical juror.” Id. The relevant considerations include: (1) whether the extrinsic evidence was received by the jury and the manner in which it was received; (2) whether it was available to the jury for a lengthy period of time; (3) whether it was discussed and considered extensively by the jury; (4) whether it was introduced before a jury verdict was reached and, if so, at what point during the deliberations; and (5) whether it was reasonably likely to affect the verdict, considering the strength of the government’s case and whether the government’s case outweighed any possible prejudice caused by the extrinsic evidence. Id. (citing Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir.1986), and Osborne v. United States, 351 F.2d 111, 118 (8th Cir.1965)).

CONCLUSION

We remand to the district court to conduct a factual inquiry consistent -with this opinion to fully determine the extent to which the jury was exposed to extraneous, prejudicial information. If that factual inquiry reveals jury taint sufficient to trigger the presumption of prejudice, a new trial is warranted unless the government can demonstrate harmlessness beyond a reasonable doubt.

      . Although the defendants were convicted under the "use" prong of 924(c), the court set aside those convictions in light of Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The government does not appeal that decision.

      . Before trial, the court severed two counts in the indictment against Everett Hall and Randall Hall for being felons in possession of a firearm in violation of 18 U.S.C. § 922(g); those charges apparently are still pending.

      . For example, in opposition to the defendants' motion for new trial, the government argued to the court:
      CUhe affidavit does not indicate that any comments which may have been overheard by the jury at side bar affected their verdict whatsoever.
      It simply doesn't say that it was considered or that it somehow inhibited or hindered the jury from following the court’s instructions. There is no indication that the juiy did any-
      thing other than follow the Court’s instructions and consider the evidence that was admissible. That affidavit doesn't challenge that whatsoever. In truth, all it says is that the juiy was able to hear the Court make evidentiaiy rulings, which it heard, of course, from time to time throughout the course of the trial anyway. Therefore, I think the court can deny the motion at this point and proceed to sentencing.
      Hr’g Tr. at 6.

      . The district court held that the government could not establish that the overheard comments were harmless. Order at 7. We simply note that connection to the crime of murder carries as much inherent danger as almost any imaginable reference.


author: BEAM, Circuit Judge.

text:
    In re GRAND JURY SUBPOENAS DUCES TECUM.
    No. 95-4242.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 17, 1996.
    Decided June 5, 1996.

      Jack T. Lassiter, Little Rock, Arkansas (Dan C. Guthrie, Dallas, Texas and Timothy O. Dudley, Little Rock, Arkansas, on the brief), for appellants.
    Kenneth W. Starr, Independent Counsel, Washington, DC (Timothy J. Mayopoulos, Associate Counsel, New York City, on the brief), for appellee.
    Before BOWMAN, BEAM, and LOKEN, Circuit Judges.
   BEAM, Circuit Judge.

Appellants Herby Branscum, Jr., PA. and Robert M. Hill appeal the district court’s order requiring them to pay contempt fines for failing to comply with subpoenas duces tecum. Appellants argue that the district court lacked jurisdiction to order the payment of fines because the contempt order on which the fines were based was then the subject of an appeal to this court. Because the order appealed from is not an appealable order, we dismiss this appeal for want of jurisdiction.

1. BACKGROUND

This is a continuation of an appeal previously decided by this court. See In re Grand Jury Subpoenas Duces Tecum, 78 F.3d 1307 (8th Cir.1996). The relevant facts are largely set out in our prior opinion and will be repeated here only to the extent necessary. On September 8,1995, the district court held appellants in contempt for failing to comply with subpoenas duces tecum served upon them by the Office of Independent Counsel (OIC). Appellants were given until September 15, 1995, to comply with the subpoenas and to purge themselves of their contempt. As of that date, fines of $1,000 per day against each individual were to accrue. The district court expressly reserved the right to forgive those fines upon full compliance. Appellants immediately appealed the September 8 order to this court arguing that the district court erred in refusing to quash the subpoenas. Appellants’ motions for a stay of the imposition of contempt sanctions pending appeal were denied by both the district court and this court. We have since issued an opinion upholding the validity of the subpoenas and the finding of contempt. Id.

On December 5, 1995, while the appeal from the contempt order was pending, the district court entered the order at issue here. The order required each appellant to pay $77,000 into the court registry. That amount represented the contempt fines which had accrued between September 15, 1995, and December 1, 1995. Following the December 5 order, appellants complied with the subpoenas and paid the fines. Appellants then filed this appeal. They argue that their appeal of the contempt order divested the district court of jurisdiction to require the payment of fines while the order of contempt was on appeal to this court.

II. DISCUSSION

A. Jurisdiction

The merits of this appeal concern whether the district court could enforce its contempt order by requiring appellants to pay their contempt fines. Before addressing that issue, however, we must first consider whether we have jurisdiction, that is, whether the order appealed from was a final order or was otherwise appealable. “It is the duty of the Court of Appeals to satisfy itself as to its jurisdiction to consider an appeal, whether or not the jurisdictional issue is raised by the parties.” Stewart v. Bishop, 403 F.2d 674, 677 (8th Cir.1968).

In their jurisdictional statement, appellants cite 28 U.S.C. § 1291. That section provides for Court of Appeals jurisdiction over “all final decisions” of United States District Courts. A final order is generally one which effectively resolves the merits of the controversy and ends the litigation. Iowa Beef Processors, Inc. v. Bagley, 601 F.2d 949, 952 (8th Cir.), cert. denied, 441 U.S. 907, 99 S.Ct. 1997, 60 L.Ed.2d 376 (1979). The order at issue here is not a final order in that sense. It is merely an interlocutory order enforcing an earlier contempt sanction. Consequently, we find that section 1291 does not confer jurisdiction.

Similarly, we fail to see how the order would come within the class of appealable interlocutory orders provided for in 28 U.S.C. § 1292. The order does not involve injunctive relief, the management of a receivership, or any other ground for appeal listed in section 1292(a), nor did appellants move for certification under section 1292(b). Therefore, we conclude that section 1292 does not confer jurisdiction.

Consequently, unless the order “falls within a statutory or judicially-created exception to the finality doctrine, appellate review at this time is premature.” Iowa Beef Processors, 601 F.2d at 952. We find no alternative bases for jurisdiction. Although the collateral order doctrine, as set forth in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949), offers an exception to the final order requirement, the collateral order doctrine is not applicable here. The doctrine allows appeal from an otherwise nonappealable order if the issue appealed falls within a limited class of issues which, although not final, should be treated as final to end the litigation. Id. To qualify as a collateral order, an order must: (1) conclusively determine the disputed question; (2) resolve an important issue separable from the merits; and (3) be effectively unreviewable on appeal from a final judgment. Farmland Indus. v. Frazier-Parrott Commodities, 806 F.2d 848, 850 (8th Cir.1986); In re National Mortgage Equity Corp., 821 F.2d 1422, 1424-25 (9th Cir.1987). The order in this case does not meet any of these requirements and, therefore, does not merit review as a collateral order.

The order also fails to fit within the narrow exception to the final order doctrine carved out by Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918). Under the Perlman rationale, an immediate appeal from an otherwise nonappealable order is proper if it is unlikely that the third party affected by the order will risk a contempt citation simply to create a final order for the person asserting a privilege. In re National Mortgage Equity Corp., 821 F.2d at 1424. This case, however, does not involve the assertion of a privilege by a third party. Instead, the persons to whom the subpoenas were directed challenge the constitutionality of those subpoenas. Consequently, we conclude that the order here at issue is not an appealable order. Keeping in mind the overriding policy against piecemeal appeals, we dismiss this appeal for lack of jurisdiction. However, even if we do have jurisdiction to consider whether the district court exceeded its jurisdiction, for example, under the All Writs Act, 28 U.S.C. § 1651, appellants will suffer no harm as a result of this dismissal as they cannot prevail on the merits of that question.

B. The Merits

As stated above, the question here presented is whether the district court retained the jurisdiction necessary to enforce its contempt order by requiring appellants to pay their contempt fines. Because such a determination involves only a question of law, we review the district court’s finding of jurisdiction de novo. A-1 Contractors v. Strate, 76 F.3d 930, 934 (8th Cir.1996); Charchenko v. City of Stillwater, 47 F.3d 981, 982 (8th Cir.1995). Applying that standard, we find that the district court retained such jurisdiction.

Generally, an appeal to the circuit court divests the district court of jurisdiction as to those issues involved in the appeal. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 378-79, 105 S.Ct. 1327, 1330-31, 84 L.Ed.2d 274 (1985); Board of Educ. v. Missouri, 936 F.2d 993, 995 (8th Cir.1991). However, as this court has previously stated, an exception to the general rule of jurisdictional divestiture applies where the district court supervises a continuing course of conduct between the parties. Liddell v. Board of Educ., 73 F.3d 819, 822 (8th Cir.1996) (citing Board of Educ. v. Missouri, 936 F.2d at 996). In this case, the need for continuing district court supervision of appellants’ conduct during the pendency of the appeal was especially important. Appellants were the subjects of an ongoing investigation by the OIC. Their refusal to comply with the grand jury subpoenas duces tecum created considerable delay in the OIC’s investigation. Even after being held in contempt, appellants were given an opportunity to comply with the subpoenas and purge the contempt. They chose not to do so and to remain in contempt of the district court’s order. Because the district court was supervising the continuing debate over appellants’ compliance with the subpoenas, it should not be rendered powerless by the filing of an appeal. Therefore, we find that the district court’s payment order falls within an exception to the general rule of divestiture of district court jurisdiction. See Board of Educ. v. Missouri, 936 F.2d at 996.

Another well-established exception to the general rule of jurisdictional divestiture further supports the district court’s exercise of jurisdiction in this case. The exception provides that, notwithstanding an appeal, the district court retains jurisdiction to the extent necessary to enforce its judgment which has not been stayed. See Resolution Trust Corp. v. Smith, 53 F.3d 72, 76 (5th Cir.1995); American Town Ctr. v. Hall 83 Assocs., 912 F.2d 104, 110-11 (6th Cir.1990); Deering Milliken, Inc. v. FTC, 647 F.2d 1124, 1128-29 (D.C.Cir.), cert. denied, 439 U.S. 958, 99 S.Ct. 362, 58 L.Ed.2d 351 (1978). Here, both the district court and this court had previously denied appellants’ motion for a stay of the imposition of contempt sanctions pending appeal. When it ordered the payment of fines, the district court did not expand upon its earlier contempt order — it simply entered the payment order in support of its earlier judgment. The district court retained this power to enforce its earlier order, notwithstanding the appeal.

III. CONCLUSION

Because the order appealed from was a nonappealable order, we dismiss this appeal for lack of jurisdiction.

      . Herby Branscum, Jr., P.A. is the professional association in which Herby Branscum, Jr. practices law.

      . The Honorable Stephen M. Reasoner, United States District Judge for the Eastern District of Arkansas.

      . The subpoenas were issued in June 1995. Appellants did not comply with those subpoenas until December 1995. Significantly, appellants' compliance was achieved only through the district court’s order requiring the payment of the contempt fines.

      . The appellants cite only two cases in support of their argument that the district court lacked jurisdiction to enter the December 5 order. See Donovan v. Mazzola, 761 F.2d 1411, 1414 (9th Cir.1985); Shuffler v. Heritage Bank, 720 F.2d 1141, 1145 (9th Cir.1983). Initially, we note that case law from the Ninth Circuit is not binding upon this court. Secondly, we point out that other Ninth Circuit case law supports our decision. See, e.g., Hoffman v. Beer Drivers and Salesmen’s Local Union No. 888, 536 F.2d 1268, 1276-77 (9th Cir.1976) (cited with approval in Board of Educ. v. Missouri, 936 F.2d at 996). As the Hoffman court noted;
      [I]n the kinds of cases where the court supervises a continuing course of conduct and where as new facts develop additional supervisory action by the court is required, an appeal from the supervisory order does not divest the district court of jurisdiction to continue its supervision, even though in the course of that supervision the court acts upon or modifies the order from which the appeal is taken.

        Hoffman, 536 F.2d at 1276. Consequently, appellants' reliance on Donovan and Shuffler is misplaced.


author: HENLEY, Senior Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Donald T. ATKINSON, Appellant.
    No. 95-3504.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 10, 1996.
    Decided June 5, 1996.
    Eric W. Butts, argued, St. Louis, Missouri, for appellant.

      Larry Howard Ferrell, U.S. Attorney, argued, Cape Girardeau, Missouri, for appellee.
    Before MAGILL, Circuit Judge, HENLEY, Senior Circuit Judge, and LOKEN, Circuit Judge.
   HENLEY, Senior Circuit Judge.

Donald T. Atkinson appeals from a judgment of the district court entered on a jury verdict finding him guilty of possession with the intent to deliver cocaine base (crack cocaine), distribution of cocaine and crack cocaine, and conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 841 and 846. We affirm.

On appeal, Atkinson does not contest his possession and distribution convictions, but challenges the sufficiency of the evidence supporting his conspiracy conviction. He asserts that the evidence only showed a buyer-seller relationship. We disagree. “It is, of course, well established that a ‘mere sales agreement with respect to contraband does not constitute a conspiracy; there must be something “beyond” that before the evidence can support a conspiracy.’ ” United States v. Issaghoolian, 42 F.3d 1175, 1178 (8th Cir.1994) (quoting United States v. West, 15 F.3d 119, 121 (8th Cir.), cert. denied, — U.S. -, 115 S.Ct. 177, 130 L.Ed.2d 112 (1994)). “This evidentiary requirement may be satisfied ... by a showing that drugs were purchased for resale.” Id. In this case, viewed in the light most favorable to the government, the evidence and reasonable inferences therefrom show that Atkinson entered into a conspiracy to distribute cocaine with Charles High. High testified that he had purchased crack cocaine from Atkinson for about four months until July 27, 1992, when High was arrested after he sold 34.34 grams of crack cocaine to undercover police officer William Visnovske. On July 24, 1992, Visnovske told High he wanted to purchase three ounces of crack cocaine. High replied he could supply that quantity or more. High then asked Atkinson for three ounces of crack cocaine. Atkinson gave High three ounces of powder cocaine, explaining that he did not want to supply crack cocaine because “you get more time” for possession and distribution of crack cocaine than for powder cocaine. Atkinson told High to pay him $3,300.00 after the sale. High took the cocaine, had it “cooked” into crack cocaine, and sold it to Visnovske. When High met with Atkinson to pay him for the cocaine, High explained that he had received $3,000.00 instead of $3,300.00 because the three ounces of powder cocaine were not pure and cooked up to two and one-half ounces of crack cocaine. Because Atkinson “was aware that the quantities he sold would be used for distribution” his “relationship with [High] was more than a seller-buyer arrangement.” United States v. Fregoso, 60 F.3d 1314, 1323-24 (8th Cir.1995). Thus, a “reasonable juror could convict him of conspiracy to distribute cocaine.” Id. at 1324.

Atkinson also raises several sentencing issues. The presentence report (PSR) grouped the counts together, U.S.S.G. § 3D1.1, and calculated the quantity of drags to be 1037.68 grams of crack cocaine, resulting in a base offense level (BOL) of 36. The PSR also recommended a two-point upward adjustment of the offense level under U.S.S.G. § 3Bl.l(c) for Atkinson’s role as a manager or supervisor of criminal activity. Atkinson filed objections to the PSR. Before the district court, he renewed his objections to the inclusion of the 34.34 grams of crack cocaine that High sold to Visnovske and to the role in the offense adjustment. The court overruled the objections. Based on evidence of additional quantities of crack cocaine, the court calculated the quantity to be 1083.4 grams of crack cocaine, which also resulted in a BOL of 36. With an adjusted offense level of 38 and a criminal history of III, the guidelines range was from 292 months to 365 months. The district court sentenced Atkinson to 336 months.

In his brief, Atkinson first argues that the “100-to-one-ratio” of crack cocaine to powder cocaine is unconstitutional. However, his arguments are foreclosed by opinions of this court. See, e.g., United States v. Jackson, 67 F.3d 1359, 1367 (8th Cir.1995), cert. denied, - U.S. -, 116 S.Ct. 1684, 134 L.Ed.2d 785 (1996); United States v. Clary, 34 F.3d 709, 710-14 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1172, 130 L.Ed.2d 1126 (1995).

He next argues that the district court erred in including the 34.34 grams of crack cocaine which High sold to Visnovske, asserting that Visnovske “manipulated” his sentence by insisting on buying crack cocaine. We need not address this “sentencing entrapment” argument because, as the government points out, any error in the inclusion of the 34.34 grams would be harmless since it had no effect on the BOL of 36. See United States v. Phillippi, 911 F.2d 149, 151 (8th Cir.1990), cert. denied, 498 U.S. 1036, 111 S.Ct. 702, 112 L.Ed.2d 691 (1991). Excluding the 34.34 grams from the court’s estimation of 1083.4 grams of crack cocaine, Atkinson’s BOL would still be 36, the BOL for 500 grams to less than 1.5 kilograms of cocaine base. Cf. United States v. Stavig, 80 F.3d 1241, 1246 (8th Cir.1996) (no sentencing entrapment where amount chosen by government agent fell within BOL resulting from defendant’s other drug transactions).

Atkinson also argues that the court erred in imposing a two-level upward adjustment under U.S.S.G. § 3Bl.l(c). “[T]he district court’s finding that a defendant was a manager or supervisor will not be overturned unless it is clearly erroneous.” United States v. Hazelett, 80 F.3d 280, 284 (8th Cir.1996). “To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants.” U.S.S.G. § 3B1.1, comment, (n.2). Atkinson is correct that this court has “reject[ed] the notion that by merely selling a controlled substance to an individual, the seller thereby necessarily becomes the manager or supervisor of the buyer.” United States v. McFarlane, 64 F.3d 1235, 1238 n. 4 (8th Cir.1995). However, as discussed above, “[t]he government’s evidence clearly proved that [Atkinson] overstepped a mere seller’s role” with High. United States v. Pena, 67 F.3d 153, 156 (8th Cir.1995). In Pena, this court upheld a section 3B1.1 adjustment, rejecting the defendant’s argument that he was a “mere seller of drugs,” where, as here, the defendant “retained the financial risk of distribution by fronting or consigning the drugs.” Id. See also United States v. Flores, 73 F.3d 826, 835 (8th Cir.1996) (upholding § 3B1.1 adjustment where defendant determined the selling price and fronted drugs). Moreover, tape recorded conversations between High and Atkinson make clear that Atkinson supervised High. For example, when High met with Atkinson to pay him for the crack cocaine sold to Visnovske, High told Atkinson, “All I got is three [thousand dollars instead of $3300.00] man. What you tell me to do.” Atkinson responded, “I was goin’ to tell you to keep the three ... But I’ll tell you what the deal is, okay?” High, who was a college student, later replied,.“You’re the man.... I’m just trying ... to go through school.” In these circumstances, the district court’s determination that Atkinson was a manager or supervisor is supported by the evidence and thus is not clearly erroneous.

      . The Honorable Catherine D. Perry, United States District Judge for the Eastern District of Missouri.

      . We note that in certain circumstances the Guidelines, U.S.S.G § 2D1.1, comment, (nn. 12 & 15) (Nov.1995), provide "[w]hen sentencing entrapment occurs, 'the sentencing court may deal with the situation by excluding the tainted transaction or departing from the sentencing guidelines.’ ” Stavig, 80 F.3d at 1246 (quoting United States v. Barth, 990 F.2d 422, 425 (8th Cir.1993)).

      . Although Pena and Flores involved three-level enhancements under section 3B 1.1(b) for being a manager or supervisor of "criminal activity [that] involved five or more participants or was otherwise extensive[,]" the cases are applicable because, as noted in Pena, “[t]he guidelines only require that [a defendant] supervised 'one or more other participants’ to trigger this enhancement.” 67 F.3d at 157 (quoting U.S.S.G. § 3B1.1, comment, (n. 2)).


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Marion HIS LAW, also known as Charlie Boy His Law, Appellant.
    No. 95-4228.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 4, 1996.
    Decided June 5, 1996.
    Cheryl F. Laurenz-Bogue, Dupree, SD, for appellant.
    Thomas J. Wright, Asst. U.S. Atty., Pierre, SD, for appellee.
    Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
   PER CURIAM.

Marion His Law challenges the sentence the district court imposed after he pleaded guilty to distributing and possessing with intent to distribute marijuana, in violation of 21 U.S.C. § 841. The government argues the appeal should be dismissed because His Law agreed in the plea agreement to waive his right to appeal, or challenge via post-conviction writs of habeas corpus or co-ram nobis, the district court’s entry of judgment and imposition of sentence. We construe this as a promise on His Law’s part not to appeal his sentence. We have held that a promise made in a plea agreement is binding on the government and may be specifically enforced by a defendant. United States v. Kelly, 18 F.3d 612, 615-16 (8th Cir.1994). We conclude that this principle applies with equal force against defendants and therefore against His Law in this case.

We therefore specifically enforce His Law’s promise against him by dismissing his appeal.

      . The Honorable Charles B. Kornmann, United States District Judge for the District of South Dakota.


author: MORRIS SHEPPARD ARNOLD, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. John GRAY, also known as Jon Gray, Appellant.
    No. 95-4243.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 15, 1996.
    Decided June 6, 1996.
    Michelle Nahon Leonard, Federal Public Defender, Springfield, MO, argued, for appellant.
    Richard E. Monroe, Assistant U.S. Attorney, Springfield, MO, argued, for appellee.
    Before BOWMAN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
   MORRIS SHEPPARD ARNOLD, Circuit Judge.

John Gray was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Because Gray had three previous burglary convictions, the district court found that he qualified for the sentence enhancement provided in the Armed Career Criminal Act (“ACCA”). That statute, see 18 U.S.C. § 924(e)(1), imposes a minimum fifteen-year sentence on “a person who violates [18 U.S.C. § 922(g)(1) ]” if he or she “has three previous convictions ... for a violent felony ... committed on occasions different from one another.” Pursuant to this statute and the relevant federal sentencing guideline, see U.S.S.G. § 4B1.4(a), the district court sentenced Gray to 236 months in prison and five years supervised release. We affirm.

The parties do not dispute the relevant facts. On January 3,1982, Gray burgled two houses in Springfield, Missouri. (The two houses were located very close to each other.) On January 12,1982, he burgled a third house. He was convicted of three counts of burglary and sentenced to three concurrent terms of five years imprisonment. The sole issue on appeal is whether the district court properly found that Gray was an armed career criminal and enhanced his sentence accordingly. Gray contends that he is not an armed career criminal because only one, or at most two, of his burglary convictions can serve as predicate felonies for purposes of the ACCA.

Gray first asserts that the district court was entitled to consider only one of his burglary convictions because he was not sentenced, punished or rehabilitated, and released before being convicted of the second and third offenses. We have specifically rejected this argument in previous cases, holding that the ACCA does not require that the predicate felonies be separated by conviction and punishment. Discrete criminal episodes, rather than dates of convictions, trigger the enhancement. See, e.g., United States v. McDile, 914 F.2d 1059, 1061 (8th Cir.1990) (per curiam), cert. denied, 498 U.S. 1100, 111 S.Ct. 997, 112 L.Ed.2d 1080 (1991), and United States v. Rush, 840 F.2d 580, 581-82 (8th Cir.1988).

Gray argues in the alternative that only two of his convictions should count as predicate felonies because he burgled two houses on the same day. He claims that only twenty-five minutes elapsed between the burglaries. In other words, he urges us to hold that he committed the burglaries on two occasions rather than the required three. We believe, however, that this case is controlled by United States v. Hamell, 3 F.3d 1187 (8th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1121, 127 L.Ed.2d 430 (1994). In Hamell, we held that two assault convictions, for incidents occurring twenty-five minutes apart (the defendant stabbed one victim in a bar and then shot a second outside the bar), were separate offenses under the ACCA. Id. at 1191.

The principle that we announced in Hamell is sufficiently broad to govern the outcome of this case. In fact, in Hamell we cited with approval several decisions from other circuits that had held that multiple burglaries committed on the same day were separate offenses under the ACCA. Id., citing United States v. Brady, 988 F.2d 664, 668-70 (6th Cir.) (en banc), cert. denied, — U.S. -, 114 S.Ct. 166, 126 L.Ed.2d 126 (1993); United States v. Tisdale, 921 F.2d 1095, 1098-99 (10th Cir.1990), cert. denied, 502 U.S. 986, 112 S.Ct. 596, 116 L.Ed.2d 619 (1991); and United States v. Washington, 898 F.2d 439, 440-42 (5th Cir.), cert. denied, 498 U.S. 842, 111 S.Ct. 122, 112 L.Ed.2d 91 (1990). Other circuits, moreover, have reached the same result. See, e.g., United States v. Hudspeth, 42 F.3d 1015, 1019-24 (7th Cir.1994) (en banc), cert. denied, — U.S. -, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995); United States v. Rideout, 3 F.3d 32, 33-35 (2d Cir.), cert. denied, — U.S. -, 114 S.Ct. 569, 126 L.Ed.2d 469 (1993); and United States v. Antonie, 953 F.2d 496, 498-99 (9th Cir.1991), cert. denied, 506 U.S. 846, 113 S.Ct. 138, 121 L.Ed.2d 91 (1992).

For the foregoing reasons, we affirm the judgment of the district court.

      . The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri.


author: FAGG, Circuit Judge.

text:
    Ernest D. OLSON (Bud), Appellant, v. NATIONAL ASSOCIATION OF SECURITIES DEALERS, a Corporation; Edward J. Hentges, an individual, Appellees.
    No. 95-3579SD.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 11, 1996.
    Decided June 7, 1996.

      John Burke, Sioux Falls, SD, argued, for appellant.
    Terri L. Reichter, Washington, DC, argued, for appellee.
    Before MeMILLIAN, JOHN R. GIBSON, and FAGG, Circuit Judges.
   FAGG, Circuit Judge.

This is Ernest D. Olson’s second federal appeal arising from contractually required arbitration of his age discrimination action against his former employer. After a panel of arbitrators sponsored by the National Association of Securities Dealers (NASD) decided in the employer’s favor, Olson learned one of the arbitrators, Edward J. Hentges, had an ongoing business relationship with the employer. Olson asked the district court to vacate the arbitration decision, contending the arbitrator’s failure to disclose the relationship showed “evident partiality.” See 9 U.S.C. § 10(a)(2) (1994). The district court denied Olson’s motion, but we agreed with Olson and reversed. Olson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 51 F.3d 157 (8th Cir.1995). Before arbitrating his age discrimination claim again, however, Olson filed this separate lawsuit against the NASD for its appointment of Hentges. Olson alleges breach of contract, fraudulent misrepresentation, negligent processing of arbitration, gross negligence, breach of warranty, and intentional infliction of emotional distress. Olson also brought claims against Hentges. The district court dismissed Olson’s complaint, holding the NASD was immune from liability and the court lacked personal jurisdiction over Hentges. Olson appeals the dismissal of his claims against the NASD, and we affirm.

Because an arbitrator’s role is functionally equivalent to a judge’s role, courts of appeals have uniformly extended judicial and quasi-judicial immunity to arbitrators. Austern v. Chicago Bd. Options Exch., Inc., 898 F.2d 882, 886, cert. denied, 498 U.S. 850, 111 S.Ct. 141, 112 L.Ed.2d 107 (1990); Wasyl, Inc. v. First Boston Corp., 813 F.2d 1579, 1582 (9th Cir.1987); Ozark Air Lines, Inc. v. National Mediation Bd., 797 F.2d 557, 563-64 (8th Cir.1986); Corey v. New York Stock Exch., 691 F.2d 1205, 1209 (6th Cir.1982); Tamari v. Conrad, 552 F.2d 778, 780-81 (7th Cir.1977); Shrader v. NASD, Inc., 855 F.Supp. 122, 123-24 (E.D.N.C.1994), aff'd, 54 F.3d 774 (4th Cir.1995) (unpublished per curiam). Like judicial and quasi-judicial immunity, arbitral immunity is necessary to protect decisionmakers from undue influence, and the decision-making process from attack by dissatisfied litigants. Austern, 898 F.2d at 886; Corey, 691 F.2d at 1211. The courts also agree that to give effect to these underlying policies, arbitral immunity extends beyond arbitrators themselves to organizations that sponsor arbitrations. Austern, 898 F.2d at 886-87; Corey, 691 F.2d at 1211; Shrader, 855 F.Supp. at 124; Cort v. American Arbitration Ass’n, 795 F.Supp. 970, 972-73 (N.D.Cal.1992). Without this extension, arbitral immunity would be almost meaningless because liability would simply be shifted from individual arbitrators to the sponsoring organizations. Austern, 898 F.2d at 886; Corey, 691 F.2d at 1211. Arbitral immunity protects all acts within the scope of the arbitral process. Austern, 898 F.2d at 886.

Olson argues the NASD’s appointment of Hentges was not within the scope of the arbitral process because it occurred before the decision-making process began. The appointment of arbitrators is a necessary part of arbitration administration, however, and thus is protected by arbitral immunity. Austern, 898 F.2d at 884; Corey, 691 F.2d at 1208; Cort, 795 F.Supp. at 972. Olson also asserts arbitral immunity does not apply because the appointment of Hentges violated the NASD’s own rules. We reject this contention as well. A sponsoring organization is immune from civil liability for improperly selecting an arbitration panel, even when the selection violates the organization’s own rules. Austern, 898 F.2d at 884, 886; Corey, 691 F.2d at 1208, 1211; see Cort, 795 F.Supp. at 972-73.

Our decision does not leave Olson without redress for the NASD’s appointment of a possibly biased arbitrator. Courts can vacate tainted arbitration decisions under 9 U.S.C. § 10. See Corey, 691 F.2d at 1211; see also L & H Airco, Inc. v. Rapistan Corp., 446 N.W.2d 372, 374, 377 (Minn.1989) (involving analogous Minnesota law). Indeed, Olson has already sought vacation of the arbitration decision under § 10 and prevailed. Olson, 51 F.3d at 160. Thus, Olson will receive a new arbitration proceeding free from actual or perceived bias. L & H Airco, 446 N.W.2d at 377.

Having reviewed the issue de novo, we conclude the NASD is immune from liability for sponsoring the tainted arbitration proceeding. We thus affirm the district court’s dismissal of Olson’s claims against the NASD.