U.S. v. McVeigh, s. 96-1469
| Decision Date | 04 February 1997 |
| Docket Number | 96-1475,Nos. 96-1469,96-1484,s. 96-1469 |
| Citation | 106 F.3d 325 |
| Parties | , 97 CJ C.A.R. 196 UNITED STATES of America, Plaintiff-Appellant, v. Timothy James McVEIGH; Terry Lynn Nichols, Defendants-Appellees. National Victims Center; Mothers Against Drunk Driving; The National Victims' Constitutional Amendment Network; Justice For Surviving Victims, Inc.; Concerns Of Police Survivors, Inc.; Citizens For Law and Order, Inc.; Criminal Justice Legal Foundation, Amici Curiae. UNITED STATES of America, Plaintiff, v. Timothy James McVEIGH; Terry Lynn Nichols, Defendants-Appellees. Marsha Kight; H. Tom Kight; Jean Bell; Eva Maureen Bloomer; Marvin Buckner; Martin Cash; Margie Cash; Jannie M. Coverdale; Christopher C. Gregan; Saundra K. Cregan; Dawn Dearmon; Jody Dearmon; Dorris Delman; Ernest Delman; Leslie Downey; Mike Downey; Cecil Elliott; Sonia Diane Leonard; Cathy McCaskell; C. Neil McCaskell; Amy L. Petty; Roy Sells; Terri Shaw; Patricia Smiley; Enetrice Smiley; Tina Tomlin; Richard Tomlin; Kim Tomlin; Judy Walker; National Organization For Victim Assistance; Julie Ann Adams; Janet K. Beck; Mary Suzanne Britten; John Henry Carlile; Gloria Chipman; Sandra Kay Cole; John Cole; Sherri A. Coleman; Teresa C. Cook; Cathy Jean Coulter; Keith T. Coverdale; Laquita Cowan; Herbert Randy Creager; Rita Crews; Virginia Dillon; Ella Gail Driskill; Ylita R. Edd; Cody Farmer; Virginia Fredman; John J. Gale; Helena Annette Garrett; Jane C. Graham; Tamara Greiner; Janet C. Gwynn; Patricia Patti Hall; Ladonna J. Harris; Gina Hernandez; Perla Buhay Howard; Cheyre Rogene Hughes; Germaine A. Johnston; Doris Jones; Verlyn Z. Lawton; Frances Leonard; Calvin Moser; Virginia G. Moser; Barbara Ann Murchison; Marioin A. Ragland; Rita H. Rains; Beverly Ann Rankin; Dora Reyes; Michael Reyes; Florence Rogers; Guy Gerard Rubsamen; Michael J. Schuman; Glenn Seidl; Edye Smith; Philip Thompson; Shelly Renee Thompson; Gloria Titsworth; William Titsworth; Jacque Lea Walker; Janet Ehrlich Walker; Donna Weaver; Wanda R. Webster; Suzanne Welch; E.E. "Bud" Welch; Richard Williams, |
| Court | U.S. Court of Appeals — Tenth Circuit |
Merrick Garland, Principal Associate Deputy Attorney General, Joseph H. Hartzler, Special Attorney to the U.S. Attorney General, Sean Connelly, Special Attorney to the U.S. Attorney General, Vicki Zemp Behenna, Special Attorney to the U.S. Attorney General, Denver, CO, for Plaintiff-Appellant United States of America.
Professor Paul G. Cassell (Counsel of Record), Salt Lake City, UT, Sean Kendall, (Local Counsel), Boulder, CO, Gary B. Born, Robert F. Hoyt, Arnon D. Siegel, Karan K. Bhatia of Wilmer, Cutler & Pickering, Washington, D.C., for Victims of the Oklahoma City Bombing and NOVA.
Michael E. Tigar, Ronald G. Woods, N. Reid Neureiter, Adam Thurschwell, and Jane B. Tigar, Denver, CO, for Defendant-Appellee Terry Lynn Nichols.
Stephen Jones, Robert Nigh, Jr. of Jones, Wyatt & Roberts, Enid, OK, Richard H. Burr, III, Houston, TX, and Jeralyn E. Merritt, Denver, CO, for Defendant-Appellee Timothy James McVeigh.
Kent S. Scheidegger, Charles L. Hobson, Criminal Justice Legal Foundation, Sacramento, CA, for Amicus Curiae Criminal Justice Legal Foundation.
Arnold I. Burns, Peter J.W. Sherwin of Proskauer Rose Goetz & Mendelsohn LLP, New York City, for Amici Curiae.
Before PORFILIO, KELLY, and BRISCOE, Circuit Judges.
In these consolidated proceedings, we address an important question of criminal procedure involving significant interests of the defendants, prosecution, crime victims, and public, which has thus far received virtually no judicial attention: whether a pretrial order prohibiting victim-impact witnesses from attending the criminal prosecution in which they are slated to testify is subject to review at the urging of either the government or the nonparty witnesses themselves. Upon careful consideration of the various constitutional and statutory ramifications, we conclude as a general matter, and hold in this particular case, that it is not, though we do not categorically rule out the possibility of mandamus relief for the government in the event of a patently unauthorized and pernicious use of the sequestration power.
In early pretrial hearings, the district court invoked, originally on its own initiative and, thereafter, at the insistence of defense counsel, the traditional rule authorizing the sequestration of witnesses. See Fed.R.Evid. 615 (). Later, in response to an extensively briefed and formally argued request for reconsideration, the district court reaffirmed its adherence to Rule 615, prompting the current proceedings for review.
The government and the excluded witnesses filed separate appeals, Nos. 96-1469 and 96-1475, respectively, which defendants moved to dismiss on procedural grounds. The excluded witnesses then filed a petition for a writ of mandamus, No. 96-1484, and the government added an informal request for mandamus consideration, both seeking to secure an alternative avenue of review in the event their appeals were deemed defective. This court consolidated all of the proceedings and granted expedited review. The briefs of the parties and amici 1 have now been filed, putting the case at issue. 2 On de novo consideration of the fundamental threshold questions raised by defendants' motions, see Wilson v. Glenwood Intermountain Properties, Inc., 98 F.3d 590, 593 (10th Cir.1996) (standing); Comanche Indian Tribe v. Hovis, 53 F.3d 298, 302 (10th Cir.) (jurisdiction), cert. denied, --- U.S. ----, 116 S.Ct. 306, 133 L.Ed.2d 210 (1995), we dismiss the government's appeal on jurisdictional grounds, deny as inappropriate its request for mandamus review, and dismiss the excluded witnesses' appeal and mandamus petition for lack of standing.
The government's right to appeal in criminal cases is subject to unique limitations.
Recently, in United States v. Carrillo-Bernal, 58 F.3d 1490 (10th Cir.1995), we surveyed in detail the historical evolution of the government's right to appeal in criminal cases. Id. at 1494-97.... Before the turn of this century, government appeals in criminal cases were considered verboten. Since then, Congress has progressively loosened the government's ability to receive appellate review of unfavorable district court decisions in criminal matters. Id. at 1494-95. However, two general rules have survived this historical evolution: the government may only initiate criminal appeals based on specific statutory authority; and there is a presumption against government criminal appeals. Id.
United States v. Roberts, 88 F.3d 872, 883 (10th Cir.1996). Because the general jurisdictional statute governing the federal appellate courts, 28 U.S.C. § 1291, does not supply the requisite authorization for the government's appeal, we look to the Criminal Appeals Act, 18 U.S.C. § 3731, to resolve the jurisdictional question raised here. See Di Bella v. United States, 369 U.S. 121, 130, 82 S.Ct. 654, 659-60, 7 L.Ed.2d 614 (1962); see, e.g., United States v. Sasser, 971 F.2d 470, 473 (10th Cir.1992); United States v. Hines, 419 F.2d 173, 174 (10th Cir.1969); United States v. Cote, 51 F.3d 178, 180 (9th Cir.1995); United States v. Martinez, 763 F.2d 1297, 1307-08 (11th Cir.1985). We approach this inquiry mindful of the Supreme Court's "insist[ence] that Congress speak with a clear voice when extending to the Executive a right to expand criminal proceedings [by appeal]." Arizona v. Manypenny, 451 U.S. 232, 247, 101 S.Ct....
To continue reading
Request your trial
-
U.S. v. Atlantic States Cast Iron Pipe Co.
...government agency that owned the courthouse. See United States v. Nichols, 169 F.3d 1255, 1277-78 (10th Cir.1999); United States v. McVeigh, 106 F.3d 325 (10th Cir.1997) (holding that district court sequestration order, prohibiting from attending trial any persons who would provide victim i......
-
U.S. v. Gonzales
...the district court was considering the Albuquerque Journal's motion to unseal the CJA documents.18 In United States v. McVeigh, 106 F.3d 325 (10th Cir.1997) (per curiam) ("McVeigh I "), we identified six structural interests used by the Supreme Court to determine that a constitutional right......
-
Ross v. Federal Highway Admin.
...II. Standing Standing is a threshold issue and jurisdictional requisite for bringing a case in federal court, United States v. McVeigh, 106 F.3d 325, 334 (10th Cir.1997), a "bedrock requirement," Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 45......
-
U.S. v. Wecht
...that jury anonymity is completely separate from Wecht's guilt or innocence. Second, the Government cites United States v. McVeigh, 106 F.3d 325, 332 (10th Cir.1997), which held that an order barring victim-impact witnesses from observing the guilt phase of a capital trial was not separate f......
-
Witnesses
...18 U.S.C. §3510. NOTE: The Victims’ Rights Clarification Act of 1997 was passed by Congress in response to United States v. McVeigh , 106 F.3d 325 (10th Cir. 1997), where the court initially ruled that victims in the Oklahoma bombing trial lacked standing to challenge the trial court’s Rule......
-
Witnesses
...18 U.S.C. §3510. NOTE: The Victims’ Rights Clarification Act of 1997 was passed by Congress in response to United States v. McVeigh , 106 F.3d 325 (10th Cir. 1997), where the court initially ruled that victims in the Oklahoma bombing trial lacked standing to challenge the trial court’s Rule......
-
Witnesses
...1997, 18 U.S.C. §3510. NOTE: The Victims’ Rights Clariication Act of 1997 was passed by Congress in response to United States v. McVeigh , 106 F.3d 325 (10th Cir. 1997), where the court initially ruled that victims in the Oklahoma bombing trial lacked standing to challenge the trial court’s......
-
Witnesses
...1997, 18 U.S.C. §3510. NOTE: The Victims’ Rights Clariication Act of 1997 was passed by Congress in response to United States v. McVeigh , 106 F.3d 325 (10th Cir. 1997), where the court initially ruled that victims in the Oklahoma bombing trial lacked standing to challenge the trial court’s......