859 F.2d 216 (D.C. Cir. 1988), 88-3057, U.S. v. Poindexter

Docket Nº:88-3057, 88-3090, 88-3097, and 88-3105.
Citation:859 F.2d 216
Party Name:UNITED STATES of America v. John M. POINDEXTER, et al., Appellants.
Case Date:September 30, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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859 F.2d 216 (D.C. Cir. 1988)



John M. POINDEXTER, et al., Appellants.

Nos. 88-3057, 88-3090, 88-3097, and 88-3105.

United States Court of Appeals, District of Columbia Circuit.

September 30, 1988

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On Appeal From The United States District Court For The District of Columbia (Criminal No. 88-0080).

Jeffrey Toobin, Robert C. Longstreet, Associate Counsel, Herbert J. Stern, Special Counsel, and Lawrence E. Walsh, Independent Counsel, Washington, D.C., were on the pleadings for the Office of the Independent Counsel.

Frederick Robinson, Stephen M. McNabb, Joseph T. Small, Jr., and Richard W. Beckler, Washington, D.C., were on the pleadings for appellant John M. Poindexter.

Mark D. Attorri, Clement R. Gagne, III, Lawrence H. Wechsler, and N. Richard Janis, Washington, D.C., were on the pleadings for appellant Albert Hakim.

John D. Cline, Nicole K. Seligman, Terrence O'Donnell, Barry S. Simon, and Brendan V. Sullivan, Jr., Washington, D.C., were on the pleadings for appellant Oliver L. North.

Rosemary Herbert, John A. Powell, Kate Martin, Todd L. Burlingame, Theresa Fenelon, and Kevin R. Sullivan, Washington, D.C., were on the brief for amicus, American Civil Liberties Union.


Before BUCKLEY, D.H. GINSBURG and SENTELLE, Circuit Judges.



Appellants John Poindexter, Oliver North and Albert Hakim have appealed various pre-trial orders of the district court. Appellants also seek extraordinary relief by way of mandamus. Arguing that the court is without jurisdiction to entertain the appeals, the United States has moved to dismiss. Because we agree that we are without jurisdiction to review the orders that are the subject of these interlocutory appeals, we grant the motions of the United States and dismiss. We also deny appellants' petition for a writ of mandamus.


In the appeals, appellants seek review of two orders, and a portion of a third, entered by the district court. 1 The thrust of

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each appeal is the district court's denial of appellants' joint motion to dismiss the indictment and the alleged failure of the district court to accord appellants a "full and fair pretrial ... hearing on grand jury taint." The "taint" about which appellants complain is the alleged grand jury exposure to and use of highly publicized testimony given by each of appellants before an investigative committee of Congress. Each of appellants had testified under a grant of immunity pursuant to 18 U.S.C. Sec. 6002 (1982). Appellants contend that the alleged use of that testimony by the grand jury is therefore in violation of Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

We do not reach the question of grand jury taint raised by the appeals as we hold that we are without jurisdiction under 28 U.S.C. Sec. 1291. Section 1291 expressly limits the jurisdiction of the Courts of Appeals to "final decisions of the district courts." The Supreme Court has long held that the policy of finality embodied in this section is "inimical to piecemeal appellate review" and that this policy is "at its strongest" in the field of criminal law. United States v. Hollywood Motor Car Co., 458 U.S. 263, 265, 102 S.Ct. 3081, 3082-83, 73 L.Ed.2d 754 (1982). Thus, except for a very limited number of cases that fall within the "collateral order" exception of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949), appeals in criminal cases must await the termination of the proceedings by final judgment. DiBella v. United States, 369 U.S. 121, 124, 82 S.Ct. 654, 656-57, 7 L.Ed.2d 614 (1962). Appellants contend that the orders on appeal satisfy the collateral order exception.

Orders that fall within the Cohen exception "must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and 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). On only three occasions has the Supreme Court applied the Cohen exception to depart from the general prohibition against piecemeal appellate review in criminal cases. See Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979) (denial of Congressman's motion to dismiss a prosecution prohibited by the speech and debate clause); Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (denial of motion to dismiss indictment on double jeopardy grounds); Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951) (denial of motion to reduce bail). Each of these cases, in addition to satisfying the other requirements of Cohen, involved "an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial." United States v. MacDonald, 435 U.S. 850, 860, 98 S.Ct. 1547, 1552-53, 56 L.Ed.2d 18 (1978).

Appellants contend that the use of their compelled testimony violates their fifth amendment rights. In their view, the self-incrimination protection clause of the fifth amendment, like the double jeopardy clause construed in Abney, and the speech or debate clause 2 construed in Helstoski, confers a right not to be tried that must be upheld prior to trial if it is to be enjoyed at all. Specifically, appellants argue that they are constitutionally and statutorily protected from having their immunized testimony used against them "in any way." Thus, argue appellants, if they are forced to go to trial on an indictment which, in their view, is impermissibly "tainted" by the grand jury's use of immunized testimony, that testimony will have been improperly "used against them." We disagree.

The fifth amendment privilege against self-incrimination insures that "[n]o person ... shall be compelled in any criminal case to be a witness against himself...." The privilege therefore normally permits a witness to remain silent and...

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