Benjamin, In re

• Decision Date: 21 August 1978
• Docket Number: No. 78-1220,78-1220
• Citation: 582 F.2d 121
• Parties: In re Frederick BENJAMIN, Petitioner.
• Court: U.S. Court of Appeals — First Circuit

Page 121

582 F.2d 121

In re Frederick BENJAMIN, Petitioner.

No. 78-1220.

United States Court of Appeals, First Circuit.

Argued June 8, 1978.

Decided Aug. 21, 1978.

Robert K. Dowd, South Yarmouth, Mass., with whom Carl J. Young and O'Neill & Young, Boston, Mass., were on memorandum, for appellant.

Stephen H. Jigger, Sp. Atty., Dept. of Justice, Boston, Mass., with whom Edward F. Harrington, U. S. Atty. and Gerald E. McDowell, Sp. Atty., Dept. of Justice, Washington, D.C., were on brief, for appellee, United States.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, and PETTINE ^*, District Judge.

COFFIN, Chief Judge.

Appellant and one Tashjian are the principal employees of a corporation, Gerry's Bargain Center, Inc. At all time relevant to this appeal a law firm, O'Neill and Young, represented the corporation, which was being investigated by a grand jury studying a series of planned bankruptcies or "bust out" operations. The law firm also had represented Tashjian in an earlier tax matter and was representing him in connection with a current grand jury investigation of extortion in which he had been indicted. Appellant was sought both as a witness and as custodian of the corporate records in connection with the "bust out" investigation. He was represented by the same law firm.

Appellant filed a number of motions on May 25, 1978: to quash the subpoena, to stay for health reasons his appearance at the hearing noticed in the subpoena, and to restrain the government from contacting him or his wife other than after consultation with his attorney. On the same day the court denied these motions and granted a motion to compel the testimony of appellant, as well as a motion that appellant's lawyers be disqualified from further representing appellant because of a conflict of interest between their representation of appellant and of Tashjian.

We stayed these orders of the district court which compelled appellant's appearance both as a witness and as custodian of the corporate records and disqualified appellant's counsel. We expedited hearing and ordered simultaneous briefs, calling the parties' attention to cases dealing, inter alia, with appellate jurisdiction. Appellant relies on two of these cases, Matter of Grand Jury Empaneled January 21, 1975, 536 F.2d 1009 (3d Cir. 1976) and In re Investigation Before April 1975 Grand Jury, 174 U.S.App.D.C. 268, 531 F.2d 600 (1976). ¹ The government has not contested our jurisdiction in this case, noting that post-indictment orders disqualifying counsel are appealable and citing the foregoing cases. ² Despite the absence of adversarial contest, we have the obligation to satisfy ourselves as to our jurisdiction. We are unable to do so.

The austere formula of Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940) and United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971), conditioning review of orders to produce documents before a grand jury upon a contempt citation derives from the reasoning in Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686 (1906), that only the imminence of punishment of a non-complying witness sets a matter sufficiently apart and is of sufficient moment to justify the interruption in proceedings occasioned by immediate review. ³ In Ryan complying with a subpoena would have been more burdensome than in Cobbledick. But this was held of no consequence, the Court saying, "(W)e have consistently held that the necessity for expedition in the administration of the criminal law justifies putting one . . . to a choice between compliance . . . and resistance . . . with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal. . . . Only in the limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual's claims have we allowed exceptions to this principle. . . . (R) espondent is free to refuse compliance and . . . in such event he may obtain full review of his claims before undertaking any burden of compliance with the subpoena." 402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85.

This doctrine would appear to apply to this case. In 9 Moore's Federal Practice, 2d ed., 1975, P 110.13(11), p. 192, the Cobbledick rule is said to "appear to bar not only appeals from orders compelling testimony or the production of documents or things before the grand jury but all appeals that would have the effect of interfering with proceedings of the grand jury, except, of course, appeals from judgments of contempt." There would seem to be no reason why appellant here, if he were determined to test the court's order of disqualification, could not simply refuse to testify on the ground that he had wrongfully been deprived of counsel of his choice. ⁴

We confess that the concept of obtaining appellate review through the contempt route is a hard one. As Wright and Miller observe concerning discovery orders in 15 Federal Practice and Procedure, 1976, § 3914, p. 575, "The only discernible virtue for the present rule is that it in fact discourages most appeals. Nonetheless, several courts of appeals have expressly rejected the Covey decision (340 F.2d 993 (10th Cir. 1965)) in dismissing pre-contempt appeals from orders directing answers to discovery questions." ⁵ And there seems no sign of doctrinal erosion in recent pronouncements of the Supreme Court. See, e. g., Coopers & Lybrand v. Cecil Livesay and Dorothy Livesay, Etc., et al., --- U.S. ----, ---- - ----, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978); United States v. MacDonald, --- U.S. ----, ----, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978); Cf. Maness v. Meyers, 419 U.S. 449, 460-61, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975).

We therefore would feel bound to apply the Cobbledick-Ryan review-through-contempt doctrine to this appeal unless contrary authority clearly showed its inapplicability. We have failed to see any such clear showing. We are fully aware of the fact that now, after considerable backing and filling, the circuits which have dealt with post-indictment attorney disqualification motions and the appealability of orders granting or denying them, are generally agreed that both kinds of orders are appealable as collateral orders under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The cases are collected at 15 Wright & Miller, Federal Practice and Procedure, 1976, § 3911, n.57, p. 490-91; 9 J. Moore's Federal Practice, 1977-78 Supplement, § 110.13(10), pp. 45-46. See also Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 496 F.2d 800 (2d Cir. 1974).

The rationale for treating the orders as final is expressed in two Fifth Circuit cases. In Tomlinson v. Florida Iron & Metal, Inc., 291 F.2d 333, 334 (5th Cir. 1961), the court held an order denying a motion for disqualification final where "harm resulting therefrom is in the nature of the frustration of a public policy which cannot be avoided or mitigated by any appeal taken after the trial." By the same token, an order granting a motion to disqualify was held appealable since "(a)n order erroneously depriving a party of his chosen counsel during the course of the trial would . . . frustrate public policy in a way which a post trial appeal could not mitigate." Draganescu v. First Nat'l Bank, 502 F.2d 550, 551 n.1 (5th Cir. 1974). Or, as Wright & Miller summarize the thinking, appealability rests "on the ground that the rights to be represented by chosen counsel, or not to be opposed by disqualified counsel, are incapable of effective preservation after trial even if a second trial should be awarded." 15 Federal Practice & Procedure, § 3911, p. 490.

In practical terms it can easily be seen that this rationale is particularly forceful only in post-indictment situations. If a defendant has his attorney disqualified at trial he has little choice but to select new counsel, and undergo the distress of a trial with some less desirable replacement in this important personal and professional relationship. The defendant's only remedy would be a timely appeal, which at best could provide him a second trial with counsel of his own selection. But even victory at this second proceeding can hardly be said to compensate the defendant for the expense and rigors of the first trial, accentuated as they were by the replacement of his attorney and the loss of his right to counsel of his choice. The only alternative to this unfortunate scenario would be for the defendant to refuse to participate in the proceeding without counsel of his choice. This would almost certainly result in a short trial and the inevitable verdict of guilty. Considering the possible penalty a defendant might be subject to on...