Directory Services, Inc. v. United States

• Decision Date: 22 November 1965
• Docket Number: No. 18169.,18169.
• Citation: 353 F.2d 299
• Parties: DIRECTORY SERVICES, INC., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

353 F.2d 299 (1965)

DIRECTORY SERVICES, INC., Appellant, v. UNITED STATES of America, Appellee.

No. 18169.

United States Court of Appeals Eighth Circuit.

November 22, 1965.

Miles W. Lord, U. S. Atty., and Sidney P. Abramson, Asst. U. S. Atty., Minneapolis, Minn., submitted motion to dismiss.

Ronald I. Meshbesher, of Robins, Meshbesher & Krischbaum, Minneapolis, Minn., submitted brief in opposition to motion to dismiss appeal.

Before VAN OOSTERHOUT and GIBSON, Circuit Judges.

PER CURIAM.

This case is before us upon the motion of the Government to dismiss this appeal taken by Directory Services, Inc., from an order of the District Court denying the petition of Directory Services, Inc., for a protective order "directed to the United States Attorney, commanding him to allow any officer of Directory Services, Inc., to be accompanied in the Grand Jury Room with counsel and to allow counsel to remain in the Grand Jury Room during all the questioning of any said officer."

A subpoena duces tecum was issued and served upon Directory Services, Inc., directed to Lloyd Spinar or any officer of the corporation, ordering an appearance before the Federal Grand Jury at Minneapolis, to testify and to bring with them certain described records of the corporation. The petition filed by Ronald I. Meshbesher, as attorney for Directory Services, Inc., alleges the issuance and service of the subpoena and asserts there is reason to believe that the Grand Jury investigation is directed at obtaining evidence under which an indictment might be returned against the corporation or its officers and that a constitutional right exists to be represented by counsel before the Grand Jury. The court denied the petition and entered a stay order withholding enforcement of the subpoena until disposition of this case upon appeal.

The Government has filed a motion to dismiss the appeal upon a number of grounds, including the ground that the order entered is not a final order and that hence no appeal lies from such order. Appellant urges that jurisdiction exists by reason of 28 U.S.C.A. § 1291, which authorizes appeals from final orders of the District Court. We find nothing in such statute or any other statute or rule which authorizes this appeal.

In Cobbledick v. United States, 309 U. S. 323, 60 S.Ct. 540, 84 L.Ed. 783, the Court held orders denying motion to quash subpoenas duces tecum directing appearances before the Grand Jury are not final orders from which an appeal lies. The Court quotes from Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686, as follows:

"`In a certain sense finality can be asserted of the orders under review; so, in a certain sense, finality can be asserted of any order of a court. And such an order may coerce a witness, leaving him no alternative but to obey or be punished. It may have the effect and the same characteristic of finality as the orders under review, but from such a ruling it will not be contended there is an appeal. Let the court go further and punish the witness for contempt of its order, — then arrives a right of review; and this is adequate for his protection without unduly impeding the progress of the case. * * * This power to punish being exercised, the matter becomes personal to the witness and a judgment as to him. Prior to that the proceedings are interlocutory in the original suit.\'" 309 U.S. 323, 327, 60 S.Ct. 540, 542.

It then observes that the Grand Jury is part of the judicial process and that the principles announced in Alexander should be applied to the case before it, and states:

"It is no less important to safeguard against undue interruption the inquiry instituted by a grand jury than to protect from delay the progress of the trial after an indictment has been found. Opportunity for obstructing the `orderly progress\' of investigation should no more be encouraged in one case than in the other. That a grand jury proceeding has no defined litigants and that none may emerge from it, is irrelevant to the issue. The witness\' relation to the inquiry is no different in a grand jury proceeding than it was in the Alexander case. Whatever right he may have requires no further protection in either case than that afforded by the district court until the witness chooses to disobey and is committed for contempt." 309 U.S. 323, 327-328, 60 S.Ct. 540, 542.

In DiBella v. United States, 369 U.S. 121, 131, 82 S.Ct. 654, 7 L.Ed.2d 614, the Court cites and follows Cobbledick. The strong policy against allowing interlocutory appeals is stressed and it is stated that such policy particularly applies to criminal proceedings. Motions to suppress evidence alleged to have been obtained through illegal search and seizure were there involved. The Court holds:

"The mere circumstance of a preindictment motion does not transmute the ensuing evidentiary ruling into an independent proceeding begetting finality even for purposes of appealability. Presentations before a United States Commissioner, Go-Bart Importing Co. v. United States, 282 U.S. 344, 352-354, 51 S. Ct. 153, 156-157, 75 L.Ed. 374, as well as before a grand jury, Cobbledick v. United States,

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