Motion to dismiss an appeal from a pretrial order of the United States District Court for the Western District of New York, John T. Curtin, Ch. J. Motion granted. Published as Table Case at:,.
Cardamone and Pierce, Circuit Judges, and Stanton, District Judge.*fn*
In December, 1987, respondents Midland Asphalt Corporation ("Midland") and Albert C. Litter, the defendants in an ongoing criminal antitrust prosecution in the United States District Court for the Western District of New York, filed a notice of appeal from two orders of the district court, John T. Curtin, Ch. J., denying their motions to dismiss the indictment for alleged abuses of the grand jury process. In response, the United States filed a motion in this court to dismiss the appeal, or, in the alternative, for summary affirmance. Following oral argument, we entered an order granting the motion to dismiss, and we indicated that we would thereafter file a written opinion.
On January 23, 1987, a federal grand jury in the Western District of New York issued an indictment charging Midland, a corporation engaged in the sale of liquid bituminous material, and its president and part owner Albert C. Litteer, with a criminal violation of section 1 of the Sherman Act, 15 U.S.C. § 1 (1982). The indictment charged that defendants and others conspired to allocate contracts and rig bids for the sale of liquid bituminous material to the State of New York and certain counties in western New York.
Thereafter, defendants simultaneously filed pretrial motions to dismiss the indictment on three separate grounds. First, they argued that the indictment violation Rule 7(c) of the Federal Rules of Criminal Procedure by failing to define the geographical area or specific counties within which the alleged activities took place. Second, they argued that the grand jury's failure to vote separately as to each prospective defendant violated each defendant's right not to be held to answer except on indictment by a grand jury. Third, they claimed that the government had violated Rule 6(e) of the Federal Rules of Criminal Procedure by disclosing details of the grand jury investigation to the public. On September 30, 1987, Chief Judge Curtin denied the motion to dismiss for violation of Rule 7(c), as well as the motion to dismiss for alleged voting irregularities. On December 18, 1987, Judge Curtin denied the motion to dismiss under Rules 6(e). On December 28, 1987, defendants filed a notice of appeal from the aforesaid orders. In response, the government filed a motion to dismiss the appeal for lack of appellate jurisdiction, or, in the alternative, for summary affirmance.
Under 28 U.S.C. § 1291 (1982), the federal courts of appeals have jurisdiction to review "all final decisions of the district courts," both civil and criminal. Thus, as a general rule, a party must raise all claims of error in a single appeal following a final judgment on the merits. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 66 L. Ed. 2d 571, 101 S. Ct. 669 (1981). Nevertheless, in some instances a decision may be "final" for purposes of § 1291 even though it is not the "last order possible to be made in a case." Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 13 L. Ed. 2d 199, 85 S. Ct. 308 (1964). Under the collateral order doctrine, a pretrial order may be considered "final" and, hence, appealable if it falls within "that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949). To qualify for immediate appeal under the collateral order doctrine, an order must meet three conditions: first, it must conclusively determine the disputed question; second, it must resolve an important issue completely separate from the merits of the action; and third, it must be effectively unreviewable on appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978).
In the present case, the government argues that an order denying a motion to dismiss an indictment for alleged grand jury abuses does not qualify as a final decision under the collateral order doctrine and, therefore, is not subject to interlocutory review. The Supreme Court has noted that adherence to the rule of finality is particularly important in criminal cases, "because 'the delays and disruptions attendant upon intermediate appeal,' which the rule is designed to avoid, 'are especially inimical to the effective and fair administration of the criminal law.'" Abney v. United States, 431 U.S. 651, 657, 52 L. Ed. 2d 651, 97 S. Ct. 2034 (1977) (quoting DiBella v. United States, 369 U.S. 121, 126, 7 L. Ed. 2d 614, 82 S. Ct. 654 (1962)). Delay in criminal cases infringes not only upon the defendant's interest in the speedy resolution of the charges against him, but also upon society's interest in the prompt administration of justice. Over time, the prosecution's ability to prove its case diminishes as evidence deteriorates and witnesses' memories fade; society may be forced to bear the cost of extended pretrial detention or, alternatively, to assume the risk that defendants released pending trial may commit other crimes. Flanagan v. United States, 465 U.S. 259, 264-65, 79 L. Ed. 2d 288, 104 S. Ct. 1051 (1984). With these concerns in mind, the Supreme Court thus far has recognized the following types of pretrial orders in criminal cases that meet the requirements of the collateral order exception: an order denying a motion for reduction of bail, Stack v. Boyle, 342 U.S. 1, 96 L. Ed. 3, 72 S. Ct. 1 (1951); an order denying a motion to dismiss an indictment where it is claimed it violates the double jeopardy clause, Abney, 431 U.S. 651, 52 L. Ed. 2d 651, 97 S. Ct. 2034 ; and an order denying a motion to dismiss an indictment on the ground that it violates the speech and debate clause, Helstoski v. Meanor, 442 U.S. 500, 61 L. Ed. 2d 30, 99 S. Ct. 2445 (1979).*fn1 Apart from these exceptions, the general rule is that an order denying a motion to dismiss an indictment is interlocutory and not appealable. United States v. Beckerman, 516 F.2d 905, 906 (2d Cir. 1975). See also United States Tour Operators Ass'n v. Trans World Airlines, 556 F.2d 126, 128 (2d Cir. 1977) (stating that "Attempts to come within the scope of the Cohen doctrine have been legion, but we have not been receptive to an expansive reading of this exception to the final judgment rule.").
Respondents argue, however, that in light of the Supreme Court's decision in United States v. Mechanik, 475 U.S. 66, 89 L. Ed. 2d 50, 106 S. Ct. 938 (1986), the denial of their motions to dismiss the indictment is effectively unreviewable following the conclusion of trial, and therefore should be subject to interlocutory review. Respondents argue that, if they are acquitted, the denial of their motions to dismiss will be moot; however, if they are convicted, the grand jury abuses of which they complain will be deemed harmless error under Mechanik, and thus insufficient to warrant reversing the convictions. Respondents find support for this argument in the dissenting opinion in Mechanik, 475 U.S. at 81 n.1 (Marshall, J., dissenting), as well as in two circuit court cases, see United States v. Dederich, 825 F.2d 1317 (9th Cir. 1987); United States v. Benjamin, 812 F.2d 548 (9th Cir. 1987). At least two other circuits, however, have reached the opposite conclusion. See United States v. LaRouche Campaign, 829 F.2d 250 (1st Cir. 1987); United States v. Taylor, 798 F.2d 1337 (10th Cir. 1986). We turn now to consider whether respondents' appeal is permissible under the Cohen collateral order doctrine.
I. The September 30 Order
We need not linger over respondents' contention that the September 30, 1987 order of the district court, which denied the motions to dismiss the indictment for alleged grand jury voting irregularities and for lack of specificity as to the location of the alleged criminal activity, is subject to interlocutory review. Even if we assume, for the sake of argument, that this order could be the subject of an interlocutory appeal, a straightforward application of Rule 4(b) of the Federal Rules of Appellate Procedure would preclude this court from entertaining the appeal. Rule 4(b) states, inter alia, that "[i]n a criminal case the notice of appeal by a defendant shall be filed in the district court within 10 days after the entry of the judgment or order appealed from," unless the district court grants an extension of time upon a showing of excusable neglect. Thus, whatever right respondents may have had to ...