U.S. v. Benjamin
| Decision Date | 11 December 1986 |
| Docket Number | Nos. 86-1337,86-7717,s. 86-1337 |
| Citation | 812 F.2d 548 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David R. BENJAMIN; Philip C. Bourdette; Miriam R. Bourdette; Cecilia Jason Dederich; Dan L. Garrett, Jr.; Elizabeth Missakian; Sybil Schiff; Steven Simon; Dan Sorkin, Defendants- Appellants. David R. BENJAMIN; Philip C. Bourdette; Miriam R. Bourdette; Cecilia J. Dederich; Dan L. Garrett, Jr.; Elizabeth Missakian; Sybil Schiff; Steven Simon; Dan Sorkin, Petitioners, v. UNITED STATES DISTRICT COURT FOR the EASTERN DISTRICT OF CALIFORNIA, Respondent, United States of America, Real Party in Interest. . Motion to Dismiss Appeal |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert D. Luskin, Washington, D.C., Kenneth W. De Vaney, Fresno, Cal., Thomas J. Nolan, Palo Alto, Cal., Richard Mazer, San Franciso, California; Jay W. Powell, Visalia, Cal., Tom Henze, Phoenix, Arizona; Robert N. Harris, Los Angeles, Cal., Mark E. Overland, Los Angeles, Cal., John L Williams, San Jose, Cal., and Salvatore Sciandra, Fresno, Cal., for defendants-appellants.
Guy L. Goodwin, Washington, D.C., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California.
Before CANBY, REINHARDT and THOMPSON, Circuit Judges.
Defendant-appellants seek review of the district court's denial of their motion to dismiss an indictment on the ground of irregularities in the grand jury proceedings. The government moves to dismiss the appeal for lack of jurisdiction. In light of the Supreme Court's decision in United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed. 250 (1986), we find the district court order appealable under the collateral order doctrine. 1
Following lengthy federal grand jury proceedings, defendants were charged on October 1, 1985 in a 22-count indictment with conspiracy, concealment of material facts, obstruction of justice, and perjury. The indictment grew out of an IRS audit of The Synanon Church, and civil litigation between Synanon, the United States, and private parties in California State and District of Columbia courts. Defendants are charged with committing perjury and making false statements to conceal the destruction and alteration of documents and tape recordings pertaining to those proceedings.
From the outset, defendants apparently were concerned about participation of a government consultant, Dr. Richard Ofshe, in the grand jury investigation. At the time of the grand jury proceedings, Ofshe was involved in a civil action for intentional infliction of emotional distress, abuse of process, and malicious prosecution against six of the nine criminal defendants in this action.
Ofshe amended his civil action to charge the six defendants with systematic destruction and concealment of evidence in his and other civil suits, placing in issue the exact allegations that form the basis for the later indictment against defendants. Immediately after amendment of Ofshe's action, the government obtained an order from the United States District Court for the District of Columbia authorizing release of "documents and recordings subpeonaed by the grand jury to the government's expert, Richiard [sic] J. Ofshe." 2 District of Columbia Chief Judge Aubrey Robinson Jr. granted the request "for the purpose of assisting the federal grand jury and the United States Attorney in the investigation." 3
To secure disclosure of the tape recordings and details of the investigation to Ofshe, the government represented to the district court that Ofshe's assistance was necessary to the investigation because "the federal investigative agency involved lacks familiarity with Synanon records and the voices appearing on Synanon tape recordings...." 4 The record on appeal indicates that the government did not, however, inform the district court of Ofshe's civil suit against the defendants. 5 The record also indicates that before the government's ex parte motion for disclosure of the grand jury materials, the government was well aware of the civil suit and the fact that its expert consultant was seeking damages from defendants for the very conduct underlying the grand jury investigation. 6
Defendants moved for discovery of the grand jury transcripts under Fed.R.Crim.P. Rule 6(e)(3)(C)(ii) in the District Court for the Eastern District of California. Through the court's May 1, 1986 order denying discovery in part, defendants learned of Ofshe's involvement in the grand jury proceedings; at the same time, defendants learned that the government failed to disclose Ofshe's interest to the District Court for the District of Columbia in moving to secure disclosure of the materials.
Defendants then moved for dismissal of the indictment for violation of Rule 6(e)(2) 7. Judge Robert E. Coyle of the Eastern District of California denied the motion. 8 While acknowledging the government's failure to disclose Ofshe's interest to the District Court for the District of Columbia, he concluded that the problem was not serious and that the irregularity did not warrant dismissing the indictment.
Defendants appeal the order denying dismissal, asserting jurisdiction in this court under 28 U.S.C. Sec. 1291. The government has now moved to dismiss.
As a general rule, a party must "raise all claims of error in a single appeal following final judgment on the merits." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981). Appellants seek to escape that rule by establishing that the district court's denial of their motion to dismiss is appealable as a "collateral order" under the doctrine of Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). To qualify for this exception to the final judgment requirement, the order under appeal must meet three conditions.
First, it "must conclusively determine the disputed question"; second, it must "resolve an important issue completely separate from the merits of the action"; third, it must "be effectively unreviewable on appeal from a final judgment."
Flanagan v. United States, 465 U.S. 259, 265, 104 S.Ct. 1051, 1055, 79 L.Ed.2d 288 (1984) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978)). It is the third requirement that is in dispute in this case, and it is the third requirement that has traditionally presented the greatest obstacle to interlocutory appeals like this one.
We have entertained claims of violations of Rule 6(e) and of other grand jury irregularities on appeal after final judgment. United States v. De Rosa, 783 F.2d 1401, 1404-07 (9th Cir.1986); United States v. Claiborne, 765 F.2d 784, 794-96 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1636, 90 L.Ed.2d 182 (1986); United States v. Stone, 633 F.2d 1272, 1275 (9th Cir.1979). As a corollary, we have refused to entertain such claims on interlocutory appeal of a district court's denial of a motion to dismiss an indictment. Our leading decision to that effect is United States v. Garner, 632 F.2d 758 (9th Cir.1980), cert. denied, 450 U.S. 923, 101 S.Ct. 1373, 67 L.Ed.2d 351 (1981). Accord United States v. Bendis, 681 F.2d 561, 569 (9th Cir.1981) (following Garner ), cert. denied, 459 U.S. 973, 103 S.Ct. 306, 74 L.Ed.2d 286 (1982). While we also based our decision in Garner on the disruptive effect interlocutory appeals would have on the criminal justice system, the foundation of our decision was the availability of review after final judgment. We stated that the one unanswered question that the appeal presented under the Cohen analysis was "whether the particular right involved would be 'lost, probably irreparably' if immediate appellate review [were] not available." Garner, 632 F.2d at 765 (quoting Cohen, 337 U.S. at 546, 69 S.Ct. at 1225). And we answered that question in the concluding sections of our opinion when we quoted In re Grand Jury Proceedings (Johanson ), 632 F.2d 1033, 1039 (3d Cir.1980):
[F]lawed grand jury proceedings can be effectively reviewed by this court and remedied after a conviction [has] been entered and all criminal proceedings have been terminated in the district court.... Because delayed appellate review will not irreparably deny Johansen his right to an impartial grand jury (his conviction could be reversed if at a later stage we conclude the grand jury was tainted) the order is not reviewable immediately as a collateral order.
Appellants contend, however, that we cannot today deny their interlocutory appeal on the ground that their claim may effectively be reviewed after final judgment. They argue that effective review after conviction has been rendered unavailable by the recent 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 defendants asserted, on appeal after conviction, that an irregularity in the grand jury proceedings rendered their convictions void. Although Fed.R.Crim.P. 6(d) provides that only "the witness under examination" shall be present at grand jury proceedings, two government witnesses had testified in tandem. The defendants did not discover the violation until after trial commenced. Defendants moved for dismissal, but the district court deferred ruling on the motion until the trial's conclusion. The district court then denied the defendants' motion. The Fourth Circuit set aside Mechanik's conspiracy conviction, which had been "tainted" by the Rule 6 violation. A divided Supreme Court reversed.
In its majority opinion, the Court assumed that simultaneous presence of the two witnesses violated Rule 6(d) and that the district court might have been justified in dismissing portions of the indictment prior to trial. Mechanik, 106 S.Ct. at 941. The Court held, however, that the supervening jury verdict...
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