U.S. v. Johns

• Decision Date: 07 October 1988
• Docket Number: No. 88-1249,88-1249
• Parties: UNITED STATES of America v. H. William JOHNS, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 154

858 F.2d 154

UNITED STATES of America v. H. William JOHNS, Appellant.

No. 88-1249.

United States Court of Appeals, Third Circuit.

Argued July 18, 1988.

Decided Oct. 7, 1988.

Edward F. Borden (Argued), Philadelphia, Pa., for appellant.

William B. Carr, Jr. (Argued), U.S. Attys. Office, Philadelphia, Pa., for appellee.

Before HIGGINBOTHAM, BECKER and ROSENN, Circuit Judges.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

Appellant has been charged in a 56-count indictment that alleges, inter alia, mail fraud in violation of 18 U.S.C. Sec. 1341 (1982). He appeals from the district court's denial of his several motions to dismiss the indictment in which he had alleged various abuses of the grand jury process. 688 F.Supp. 1017. (E.D.Pa.1988) Prior to the consideration of the merits of any of these claims, however, we have examined the threshold question of whether the interlocutory order from which Appellant seeks relief fulfills the requirements of the collateral order rule and, therefore, is properly before us at this time. We conclude that the order does not meet those requirements and, accordingly, we will dismiss this appeal.

I.

This appeal arises from a present criminal proceeding in which appellant, H. William Johns, is being tried for participation in a bribery and kickback scheme. During 1983, Walter Rubel, in-house counsel for Acme Markets, Inc. ("Acme"), received information that Johns, Acme's Director of Packaging, Equipment and Supplies Procurement, was receiving kickbacks from some of Acme's vendors. Acme brought that information, together with the results of its own further investigation, to the United States Attorney's Office.

After an extensive criminal investigation, the matter was presented to a grand jury for the Eastern District of Pennsylvania, which returned a 56-count indictment charging Johns with violations of 18 U.S.C. Sec. 1341 (1982) (mail fraud), 18 U.S.C. Sec. 1952 (1982) (use of interstate facility in aid of commercial bribery) and 18 U.S.C. Sec. 2314 (1982) (interstate transportation of securities taken by fraud). The indictment charged that while Johns was employed by Acme, he accepted commercial bribes from outside vendors with whom he had dealt at Acme. It further charged that these vendors made commission payments to three corporations: Pak-All, Alma Trading and Garo Service and that these corporations thereafter made payments to Johns. ¹

Johns filed several pre-trial motions seeking dismissal of the indictment. ² In the first of these motions, he contended that forty-six of the indictment's fifty-six counts should be dismissed because the government failed to present exculpatory evidence to the grand jury, which the government had obtained from Johns, demonstrating that Acme had suffered no financial loss due to Johns's alleged scheme. In the second, he argued that the entire indictment should be dismissed because the government violated Fed.R.Crim.P. 6(e) by disclosing information that had been gathered via grand jury subpoenas to Acme's in-house counsel. In his third motion, Johns asserted that there was a lack of sufficient evidence presented to the grand jury to support the indictment. In his final motion, Johns sought to strike two paragraphs of the indictment, which alleged mail fraud, that he contended were invalid because they were predicated upon a theory--that the mail fraud statute criminalized an employee's civil breach of a fiduciary duty--that was rejected by the Supreme Court. See McNally v. U.S., --- U.S. ----, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987).

After a two-day evidentiary hearing, the district court denied each of these motions. Thereafter, Johns timely filed a notice of appeal to this Court from the denial of his motions and also filed a motion to stay the trial proceedings pending the outcome of this appeal, which the district court granted.

As part of its response to Johns's appeal, the government filed a motion to dismiss for lack of jurisdiction and, prior to consideration of the substance of Johns's contentions, we have reviewed the government's challenge to our jurisdiction. Upon that review, we conclude that, at this time, we are without jurisdiction to reach the merits of Johns's appeal.

II.

The government contends that Johns's appeal is not ripe because the order denying the motion to dismiss is not a final judgment within the meaning of this Court's grant of authority, see 28 U.S.C. Sec. 1291 (1982); see also, DiBella v. United States, 369 U.S. 121, 124, 82 S.Ct. 654, 656, 7 L.Ed.2d 614 (1962), and does not fall into the narrow class of exceptions that enable a party to appeal an interlocutory decision prior to a final judgment of conviction. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981). It notes, correctly, that to come within that limited class of exceptions, the interlocutory decision of the trial court must, at a minimum, meet the three following conditions: (1) it "must conclusively determine the disputed question"; (2) it must "resolve an important issue completely separate from the merits of the action"; and (3) it must "be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978) (footnote omitted). The government argues that the issues raised by Johns are neither collateral to, nor separable from, the principal issue of guilt that will be resolved at trial.

Johns asserts that his case falls within one of the exceptions, namely the "collateral order" rule established by Cohen v Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); see also, Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). He contends that, as a result of the Supreme Court's decision in United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), the decisions for which he seeks review cannot be considered if he is convicted and, therefore, interlocutory review is mandated. We do not agree.

As the starting point for our inquiry, we note that the contentions that Johns raises are distinguishable from the narrowly defined class of pre-trial orders in criminal prosecutions that the Supreme Court has explicitly determined meet the requirements of the collateral order rule for interlocutory appeals. In those cases, the Supreme Court applied the collateral order rule to instances in which " 'an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.' " United States v. Hollywood Motor Car Co., 458 U.S. 263, 266, 102 S.Ct. 3081, 3083, 73 L.Ed.2d 754 (1982) (quoting United States v. MacDonald, 435 U.S. 850, 860, 98 S.Ct. 1547, 1552, 56 L.Ed.2d 18 (1978)). See Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951) (motion to reduce bail); Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (motion to dismiss an indictment on double jeopardy grounds); Helstoski v. Meanor, 442 U.S. 500, 91 S.Ct. 2445, 61 L.Ed.2d 30 (1979) (motion to dismiss an indictment on Speech or Debate grounds).

The order appealed from in this case lacks "the critical characteristics that make orders denying bail reduction or refusing to dismiss on double jeopardy grounds or Speech or Debate grounds immediately appealable." Flanagan v. United States, 465 U.S. 259, 266, 104 S.Ct. 1051, 1055, 79 L.Ed.2d 288 (1984). We conclude, therefore, that none of those exceptions provides a basis for Johns to obtain the interlocutory relief that he seeks. Thus, the only question that we must decide is whether an additional exception to the final judgment rule has been created by the application of the "harmless error" analysis in Mechanik, thereby making Johns's claims " 'effectively unreviewable on appeal from a final judgment.' " Flanagan, 465 U.S. at 265, 104 S.Ct. at 1055 (quoting Coopers & Lybrand 437 U.S. at 468, 98 S.Ct. at 2458).

III.

In Mechanik, the Supreme Court considered whether a violation of Fed.R.Crim.P. 6(d) could be the basis for the dismissal of an indictment on post-conviction appeal. The defendants in that case had been convicted of both conspiracy and substantive drug offenses. At trial, the defendants discovered that two witnesses had been present, testifying together, during the grand jury proceeding in contravention of Rule 6(d). The defendants moved to dismiss the indictment on that ground, and the district court denied their motion. The defendants were subsequently convicted and appealed on the basis of the violation of Rule 6(d). The Court of Appeals for the Fourth Circuit agreed that the simultaneous presence of the grand jury witnesses had violated Rule 6(d), and held that this violation had tainted the conspiracy portion of the indictment. It therefore reversed the defendants' conspiracy conviction and remanded to the district court for its dismissal of the conspiracy portion of the indictment, notwithstanding the absence of a factual finding that the defendants had been prejudiced by the violation. United States v. Mechanik, 735 F.2d 136 (4th Cir.1984). The Supreme Court reversed that holding and reinstated the convictions. It held that the purpose of Rule 6(d) was to protect a defendant from having "to defend against a charge for which there was no probable cause to believe him guilty." Mechanik, 475 U.S. at 70, 106 S.Ct. at 942. It stated, however, that

the petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury's verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.

Id. (emphasis added) (footnote omitted). Moreover, the Court noted that

societal costs of reversal and retrial are...