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United States v. Helmsley

decided: December 29, 1988.

UNITED STATES OF AMERICA, APPELLEE,
v.
HARRY B. HELMSLEY, LEONA M. HELMSLEY, JOSEPH V. LICARI, AND FRANK J. TURCO, DEFENDANTS, LEONA M. HELMSLEY, DEFENDANT-APPELLANT



Leona M. Helmsley takes this expedited appeal from the August 30, 1988 order of the United States District Court for the Southern District of New York (Walker, J.) denying appellant's motion to dismiss the indictment or for a pretrial hearing. Dismissed.

Van Graafeiland, Cardamone and Pierce, Circuit Judges.

Author: Cardamone

Judge Van Graafeiland concurs in a separate opinion.

CARDAMONE, Circuit Judge:

This is an appeal from an order denying a motion to dismiss an indictment that charges Leona M. Helmsley with a long litany of activities in which she allegedly promoted her own financial self-interest in violation of the law. The legal hurdle appellant faces is the finality rule, which she tried without success to surmount once before. Her present appeal is nothing more than a repackaged version of the first attempt, with the added request that--if this edition meets the same fate as the former one--we lower the legal hurdle. The finality rule limits appeals so that only those taken from a final judgment may be heard. It has been the notion of our law since its earliest days to avoid piece-meal interlocutory appeals because of the consequent delays they create. That rule has served long and well and this interlocutory appeal presents no reason for altering it. Hence, appellant's claim must await final judgment after trial on the charges.

Appellant Helmsley appeals from an August 30, 1988 order of the United States District Court for the Southern District of New York (Walker, J.) denying her motion to dismiss an indictment filed against her, and also denying her motion for a pre-trial Kastigar hearing on her allegation that the government has abridged her Fifth Amendment rights. See Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972). Appellant moved for an expedited appeal from the above order, to which the government consented, and the district court rescheduled her trial for January 23, 1989. This appeal was heard on October 18, 1988. We now dismiss it.

I FACTS AND PROCEDURAL HISTORY

The 47-count indictment charges Leona M. Helmsley and her husband, Harry B. Helmsley, and two other officers of the Helmsley Corporations with using their control of a large group of real estate, hotels, insurance and related business over the period from June 1983 to October 1986, with conspiracy to defraud the United States and the Internal Revenue Service. In addition to conspiracy, the defendants are charged with tax evasion of approximately $1.2 million, filing false tax returns, mail fraud--involving an allegedly fraudulent use of corporate funds to pay for the renovation of "Dunnellen Hall" in Greenwich, Connecticut--and extortion. The last charge alleges that defendant Helmsley demanded kickbacks of goods and services for Dunnellen Hall from certain contractors and vendors doing business with the Helmsley organization, threatening them that Helmsley business would be withheld unless the kickbacks were paid.

The indictment was filed on April 14, 1988. In her first challenge appellant moved on June 17 to dismiss it on the grounds of a prejudicial leak of pre-trial publicity, which defendant claimed constituted violations of grand jury secrecy in contravention of Fed. R. Crim. P. 6(e). The district court denied defendant's Rule 6(e) motion on July 29, 1988. A panel of this Court issued a summary order on September 14, 1988 dismissing for lack of jurisdiction defendant's appeal from that denial.

The instant appeal is defendant's second challenge to the indictment. It concerns Leona Helmsley's June 11 and November 7, 1985 appearances before a New York County grand jury investigating allegations of New York State sales tax fraud. On June 17, 1988 defendant--who had previously entered a not guilty plea--moved for a hearing and dismissal of her federal indictment. Defendant claims her Fifth Amendment rights were violated; she alleges that the federal grand jury made use of her June and November, 1985 immunized state grand jury testimony. Appellant complains of "taint" of the federal grand jury process because of press reports of her testimony before the state grand jury, from an overlap in state and federal prosecutorial personnel, and from the prosecutors' alleged sharing of evidence. In sum, Helmsley contends that she was targeted for the federal prosecution by virtue of her state grand jury testimony. On August 30, 1988 Judge Walker denied this motion to dismiss the indictment, and ruled that the Kastigar hearing could be held after the trial in the event of a conviction. This expedited appeal followed.

II DISCUSSION

This second motion to dismiss the indictment is cast in somewhat obscure terms, perhaps to avoid appearing to challenge the same indictment before the same district court judge on essentially the same grounds. It appears to allege general unfairness of the grand jury process rather than the earlier more specific attack she made under Rule 6(e). Stripped of its subtleties, defendant Helmsley's argument, in essence, asks that the collateral order exception to the finality rule be expanded. This request is based on defendant's contention that if review is not granted now, protection of her Fifth Amendment rights will be forever lost. To put her arguments for an expansion of the collateral order exception in proper perspective, we discuss first the finality rule, and then the collateral order doctrine exception to it.

A. The Finality Rule and the Collateral Order Exception

In creating those courts inferior to the Supreme Court, Congress since the Judiciary Act of 1789 has carefully limited their appellate jurisdiction. Under 28 U.S.C. ยง 1291 appeal is allowed only "from all final decisions of the district courts." In a criminal case, as here, an appeal usually may be taken only after sentence has been imposed because that is the final judgment in such a case. Flanagan v. United States, 465 U.S. 259, 263, 79 L. Ed. 2d 288, 104 S. Ct. 1051 (1984); Berman v. United States, 302 U.S. 211, 212, 82 L. Ed. 204, 58 S. Ct. 164 (1937); "Project: Seventeenth Annual Review of Criminal Procedure" 76 Geo. L. J. 1199, 1206 n.3330 (1988) (collecting cases). The "finality" rule has been the cornerstone of appellate jurisdiction from the earliest days of the Republic. See DiBella v. United States, 369 U.S. 121, 124, 7 L. Ed. 2d 614, 82 S. Ct. 654 (1962). The rule promotes appellate deference to trial judges, reduces the ability of litigants to engage in delaying ...


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