Appeal from an interlocutory order entered December 6, 1988 in the Southern District of New York, Richard Owen, District Judge, denying a motion for reconsideration of the court's previous order denying a motion to dismiss the indictment because of asserted unauthorized appearances by certain Assistant United States Attorneys before the grand jury. Appeal dismissed.
Feinberg, Timbers, and Altimari, Circuit Judges.
The essential question presented on this appeal is whether we have appellate jurisdiction to review an interlocutory order denying a pretrial motion to dismiss an indictment. Under the circumstances of this case, we hold that we do not.
Eugene Robert Wallach ("Wallach"), Rusty Kent London ("London"), and Wayne Franklyn Mohamed Farid Chinn ("Chinn") (collectively, "appellants"), appeal from an order entered December 6, 1988 in the Southern District of New York, Richard Owen, District Judge, denying a motion for reconsideration of the court's previous order denying without an evidentiary hearing appellants' motion to dismiss an indictment charging them with crimes arising from an investigation into their activities in connection with Welbilt Electronic Die Corporation ("Wedtech"). Appellants asserted that the indictment was tainted by a violation of Fed. R. Crim. P. 6(d) ("Rule 6(d)") because of the presence before a grand jury in the Southern District of New York of Assistant United States Attorneys ("SDNY prosecutors") who (a) had a conflict of interest, and (b) had conducted their investigation in violation of the exclusive jurisdiction provisions of the Ethics in Government Act of 1978, 28 U.S.C. § 591 et seq. (1982 & Supp. IV 1986) ("Ethics Act").
On appeal, the government argues that we are without appellate jurisdiction since the appeal is from a non-final order and that in any event there was a violation of neither the Ethics Act nor Rule 6(d). Appellants argue that there is jurisdiction to hear and decide this appeal pursuant to the collateral order exception to the final judgment rule, and the indictment should be dismissed because of the unauthorized presence before the grand jury of the SDNY prosecutors.
We hold that this appeal is from an interlocutory order which does not fall within any exception to the final judgment rule. Accordingly, we dismiss the appeal.
We summarize only those facts believed necessary to an understanding of the issues raised on appeal.
In 1986, the SDNY prosecutors began a grand jury investigation of asserted corrupt practices by Wedtech, a military contractor located in the Bronx, N.Y., in obtaining government contracts. During the course of that investigation, there came to light possible misconduct by Franklyn C. Nofziger ("Nofziger"), former Assistant to the President for Political Affairs at the White House, regarding his lobbying efforts on behalf of Wedtech. On February 2, 1987, following a preliminary investigation by the SDNY prosecutors pursuant to § 592(a) of the Ethics Act, James C. McKay ("McKay") was appointed Independent Counsel pursuant to § 593(b) of the Ethics Act to conduct a full investigation of Nofziger. Apparently recognizing possible overlap with the SDNY investigation, the referral order entered by the United States Court of Appeals for the District of Columbia, Division for the Purpose of Appointing Independent Counsels ("Independent Counsel Court") stated:
"It may be necessary for Independent Counsel to coordinate his investigation with investigations being conducted by the United States Attorneys in New York and Maryland".
While McKay was investigating Nofziger, the SDNY grand jury investigation continued apace. On April 8, 1987, after the initiation of an investigation by the Public Integrity Section of the Department of Justice's Criminal Division into reports that he was involved with Wedtech, Attorney General Edwin Meese III ("Meese") recused himself from participation in any further Wedtech-related investigations. On May 11, 1987, the question whether Meese's relationship with Wedtech, Nofziger, Wallach, Chinn, and/or Financial Management International, Inc. (a corporation owned and operated by Chinn) violated any federal conflict of interest or criminal laws was referred to McKay for investigation pursuant to §§ 592(e) & 594(e) of the Ethics Act. While the referral recognized that "various [other] investigations have developed substantial evidence of Wedtech-related criminal conduct on the part of individuals other than Mr. Meese", it did not refer these other matters to McKay.*fn1 The referral was accepted by McKay the next day.
On August 18, 1987, in response to questions regarding the scope of McKay's jurisdiction, the Independent Counsel Court entered an order confirming the May 11 referral of the question whether Meese's dealings with Wedtech, Wallach or others violated any federal conflict of interest or criminal laws. The order reiterated that McKay was empowered to investigate and indict Meese as well as others, but only if the other individuals had engaged in criminal activity in concert with Meese.
On December 21, 1987, pursuant to § 597(a) of the Ethics Act, McKay gave written authorization for the SDNY prosecutors to proceed with indictments of Wallach, Chinn and London. The next day, a SDNY grand jury returned the original 18-count indictment of Wallach, London and Chinn which variously charged commercial bribery, mail and securities fraud, and operation of an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. ...