United States of America, Plaintiff-appellee, v. Hollywood Motor Car Company, Inc., Frederic Michaelbernstein, and Terrance Quatkemeyer, Defendants-appellants, 682 F.2d 1352 (9th Cir. 1982)

This court's previous decision in this case is reported in 646 F.2d 384 (9th Cir. 1981). Defendants-Appellants, prior to trial, appealed from the district court's order denying their motion to dismiss the indictment on the ground of vindictive prosecution.^**  Relying on our prior holdings in United States v. Burt, 619 F.2d 831, 835 (9th Cir. 1980), and United States v. Griffin, 617 F.2d 1342, 1345 (9th Cir.), cert. denied, 449 U.S. 863, 101 S. Ct. 167, 66 L. Ed. 2d 80 (1980), we found that we had jurisdiction under 28 U.S.C. § 1291 to hear the Defendants-Appellants' immediate appeal of the district court's order. United States v. Hollywood Motor Car Co., 646 F.2d 384, 386 (1981). We held on the merits that the Defendants-Appellants had established their claim of vindictive prosecution and remanded for dismissal of the superseding indictment. Id. at 389.

The United States filed a petition for certiorari which was granted by the Supreme Court. In a summary decision, the Court held that courts of appeals do not have jurisdiction under § 1291 to review a district court's interlocutory order denying a motion to dismiss when that motion is based on a claim of vindictive prosecution. United States v. Hollywood Motor Car Co., --- U.S. ----, 102 S. Ct. 3081, 72 L. Ed. 2d ---- (1982). The Court reversed our decision for lack of jurisdiction and ordered that the appeal be dismissed without reaching the merits of the vindictive-prosecution claim. Id. at ----, ----, 102 S. Ct. at 3081, 3083.

In accordance with the Supreme Court's directive, we dismiss the appeal and remand the case to the district court for further proceedings.