U.S. v. Poindexter, s. 88-3057

• Citation: 859 F.2d 216,273 U.S.App.D.C. 240
• Decision Date: 30 September 1988
• Docket Number: 88-3090,88-3097,Nos. 88-3057,s. 88-3057
• Parties: UNITED STATES of America v. John M. POINDEXTER, et al., Appellants. , and 88-3105.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 216

859 F.2d 216

273 U.S.App.D.C. 240

UNITED STATES of America v. 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.

Sept. 30, 1988.

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.

ON MOTIONS TO DISMISS AND PETITION FOR WRIT OF MANDAMUS

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

Opinion PER CURIAM.

PER CURIAM:

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.

I

In the appeals, appellants seek review of two orders, and a portion of a third, entered by the district court. ¹ The thrust of 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 refuse to give testimony when called upon to testify in a manner that would incriminate himself. The immunity statute, 18 U.S.C. Sec. 6002, under which appellants were compelled to testify before the Congressional Committee, reflects a Congressional choice to protect that privilege in defined circumstances by compelling the witness to give evidence but immunizing the witness against any direct or indirect use of that testimony in any criminal case. ³ By its terms the statute confers only use immunity. It does not confer transactional immunity under which the witness could not be prosecuted at all for the transaction about which he testifies. As the Supreme Court held in Kastigar, supra, this statute affords the witness the same protection as the fifth amendment "by assuring that the compelled testimony can in no way lead to the infliction of criminal penalties." Kastigar, 406 U.S. at 461, 92 S.Ct. at 1665 (emphasis added). The defendant in Kastigar had sought transactional immunity. But the Court held that, in order to compel incriminating testimony, the law need grant an immunity commensurate with that afforded by the fifth amendment privilege not a broader one. "The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted." Id. at 453, 92 S.Ct. at 1661. Thus, appellants' claim that the immunity affords them a right not to be prosecuted at all is ill-founded.

Appellants may ultimately be correct in their assertion that if the grand jury's probable cause determination was "tainted" by the use of immunized testimony, dismissal of the indictment will be required to remedy the harm. Even when vindication of the defendant's rights requires dismissal of the charge altogether, however, an interlocutory appeal is not automatically justified. United States v. Hollywood Motor Car Co., 458 U.S. at 269, 102 S.Ct. at 3084-85. If appellants' claims may effectively be reviewed on appeal from a final judgment of conviction, there is no justification for departing from the general prohibition against piecemeal review.

Appellants contend that post-judgment review of the claims raised here will be foreclosed by the decision of the Supreme Court in United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986). In Mechanik, the Supreme Court was presented with a post-judgment appeal that raised the issue of whether a violation of Rule 6(d) of the Federal Rules of Criminal Procedure provided a basis for dismissal of an indictment. That rule limits the persons who may be present in the grand jury session to certain necessary court officials and the one witness then under examination. Contrary to this limitation, two witnesses before the Mechanik grand jury were present during each other's testimony. The defendants raised that error after the final verdict of guilty. The District Court denied their post-verdict motion for dismissal of the indictment. United States v. Lill, 511 F.Supp. 50 (S.D.W.Va.1980). The Fourth Circuit reversed. United States v. Mechanik, 735 F.2d 136 (4th Cir.1984).

The Supreme Court reasoned that the purpose of Rule 6(d) is to protect a defendant from having to stand trial when there is no probable cause to believe him to be guilty. The return of a guilty verdict, however, meant that there in fact had been probable cause and as a result, "any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt." Mechanik, 475 U.S. at 70, 106 S.Ct. at 942.

In the present case, appellants contend that Mechanik makes post-judgment review of their claim of grand jury taint unavailable. If they are acquitted, the argument proceeds, the claimed error is moot. If they are convicted, then under their view of Mechanik, the error will be deemed harmless. Either way, they say, the right to review is lost unless it is afforded now. Again, we disagree.

To date, five circuits have addressed the...