U.S. v. Dederich
| Decision Date | 19 August 1987 |
| Docket Number | Nos. 86-1387,86-1388,87-7052 and 87-7055,s. 86-1387 |
| Citation | 825 F.2d 1317 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Cecilia Jason DEDERICH; Elizabeth A. Missakian, Defendants-Appellants. The UNITED STATES of America, Plaintiff-Appellee, v. David R. BENJAMIN; Philip C. Bourdette; Miriam R. Bourdette; Cecilia J. Dederich; Dan L. Garrett, Jr.; Elizabeth Missakian; Steven Simon; Dan Sorkin, Defendants-Appellants. David R. BENJAMIN, Miriam R. Bourdette, Philip C. Bourdette, Cecilia Jason Dederich, Dan L. Garrett, Jr., Elizabeth A. Missakian, Steven Simon and Dan Sorkin, Petitioners, v. UNITED STATES DISTRICT COURT for the EASTERN DISTRICT OF CALIFORNIA, Respondent, United States of America, Real Party in Interest. Cecilia Jason DEDERICH and Elizabeth Missakian, Petitioners, v. UNITED STATES DISTRICT COURT for the EASTERN DISTRICT OF CALIFORNIA, Respondent, United States of America, Real Party in Interest. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Guy L. Goodwin, Washington, D.C., for plaintiff-appellee.
Robert D. Luskin, Washington, D.C., Kenneth W. De Vaney, Fresno, Cal., Thomas J. Nolan, Palo Alto, Cal., Richard Mazer, San Francisco, Cal., Jay W. Powell, Visalia, Cal., Tom Henze, Phoenix, Ariz., Robert N. Harris, Los Angeles, Cal., John L. Williams, San Jose, Cal., and Salvatore Sciandra, Fresno, Cal., for defendants-appellants.
Appeal from the United States District Court for the Eastern District of California.
Before CANBY, REINHARDT and THOMPSON, Circuit Judges.
ON MOTIONS TO DISMISS INTERLOCUTORY APPEALS
Eight defendants appeal the district court's denial of their motions to dismiss an indictment on grounds of prosecutorial misconduct before the grand jury. Two of the defendants, Dederich and Missakian, also separately appeal the district court's denial of their motion to dismiss the indictment for violation of transactional immunity granted by the Superior Court of California. Each of the appeals is accompanied by an alternative, conditional petition for a writ of mandamus. The government moves to dismiss both interlocutory appeals for lack of jurisdiction. We conclude that the district court's denial of dismissal for prosecutorial misconduct is reviewable prior to final judgment under the collateral order doctrine. We agree with the government, however, that we lack jurisdiction over Dederich and Missakian's separate appeal because those claims will remain reviewable on appeal from any conviction. We deny Dederich's and Missakian's petition for writ of mandamus, and dismiss that of all eight defendants as moot.
Following lengthy federal grand jury proceedings, defendants were charged on October 21, 1985, in a 22-count indictment. 1 The indictment grew out of an Internal Revenue Service audit of The Synanon Church, and out of 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.
All defendants moved to dismiss the indictment on the ground that prosecutorial misconduct undermined the independence Dederich and Missakian were granted transactional immunity by the Los Angeles County Superior Court, to compel them to testify before a state grand jury. In the district court, they moved to dismiss the indictment. Dederich and Missakian alleged that the federal prosecutor, Mr. Guy Goodwin, instigated and controlled the parallel state and federal grand jury investigations into conduct underlying the federal indictment. Dederich and Missakian contended that because Goodwin's involvement in the state investigation established an agency relationship between federal and state prosecutors, due process bound Goodwin to honor the state prosecutors' promise of transactional immunity. The district court determined that Dederich and Missakian failed to establish agency and denied their motion to dismiss on December 2, 1986.
and impartiality of the grand jury. 2 Defendants alleged that the prosecutor's misconduct before the grand jury included calling witnesses for the sole purpose of repeatedly forcing them to assert their fifth amendment privilege, harassing Synanon-associated witnesses, failing to present evidence that cast doubt on the credibility of witnesses, making derogatory comments about Synanon and the Synanon lifestyle, presenting irrelevant and false, prejudicial evidence, and abusing the grand jury's subpoena authority. The district court examined grand jury transcripts in camera. On December 2, 1986, without holding an evidentiary hearing, the district court denied defendants' motion to dismiss the indictment. 3
Defendants appeal both of the district court's orders, asserting appellate jurisdiction under 28 U.S.C. Sec. 1291. On January 15, 1987, by separate motions, the government moved to dismiss the appeals. We consider the motions and the conditional petitions for mandamus together because they arise from the same prosecution and involve related legal issues. 4
The government contends that our decision in 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), bars interlocutory review of the district court's denial of the motion to dismiss for prosecutorial misconduct. 5 The government further argues that the order is not appealable under the doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). We disagree.
An appealable interlocutory order must meet three requirements under Cohen 's collateral order doctrine:
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, 2458, 57 L.Ed.2d 351 (1978)).
The government contends that this appeal is inseparable from the merits of the action, thereby failing the second requirement. In support of its contention, the government relies on the harmless error rule of United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), which "inextricably link[s]" analysis of the grand jury's probable cause determination to the sufficiency of evidence at trial. Government Motion to Dismiss Appeal for Lack of Jurisdiction at 8.
It is true that Mechanik requires post-conviction analysis of grand jury irregularities to focus on the petit jury's verdict, 106 S.Ct. at 942-43, and Mechanik is relevant to this appeal, as discussed below. However, prosecutorial misconduct before the grand jury, examined prior to trial for its effect on the indictment, is not truly related to the merits of the criminal trial. For purposes of the collateral order doctrine's second requirement, it is enough that a decision by this court on the present appeal will have no effect on the trial court's determination of guilt or innocence under the present or any superseding indictment.
The more critical issue here is whether defendants' present claims will be "effectively unreviewable on appeal from final judgment." Flanagan, 465 U.S. at 265, 104 S.Ct. at 1051 (citations omitted). To determine whether appellants' claims meet this third requirement of the collateral order rule, we must decide whether the claims "are sufficiently aimed at the charging process that they fall within the ambit of Mechanik." United States v. Benjamin, 812 F.2d 548, 553 (9th Cir.1987). Despite the government's contention that our review of prosecutorial misconduct must await appeal from final conviction, we have already determined in Benjamin that similar grand jury irregularities may well be considered harmless and effectively unreviewable after trial under Mechanik. Id. at 551-53; but see United States v. Taylor, 798 F.2d 1337 (10th Cir.1986) ().
Appellants' prosecutorial misconduct charges essentially go to improper effect on the grand jury's decision to indict. We think, and the government agrees, that Mechanik 's harmless error rule would apply if the claims were reviewed on appeal from final judgment. Benjamin, 812 F.2d at 552-53; Government Motion to Dismiss at 7 n. 2. Other circuits have also concluded that the Supreme Court's language in Mechanik bears broad interpretation. United States v. Hintzman, 806 F.2d 840, 843 (8th Cir.1986); Porter v. Wainwright, 805 F.2d 930, 941-42 (11th Cir.1986); United States v. Thomas, 788 F.2d 1250, 1254 (7th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 187, 93 L.Ed.2d 121 (1987); see United States v. Page, 808 F.2d 723, 726-27 (10th Cir.1987); but cf. Taylor, 798 F.2d at 1339-40.
Post-conviction review under Mechanik would lead us to conclude that the petit jury's verdict "wipe[s] out" any prejudice to defendants resulting from the allegedly erroneous charging decisions. Benjamin, 812 F.2d at 553; see Mechanik, 106 S.Ct. at 941-43. Therefore, if we do not permit defendants' appeal at this stage, "[e]rrors that affected the grand jury proceedings to the detriment of the accused, and that would have justified the district court in dismissing the indictment before trial, 6 would go wholly unremedied if the district court itself erred in denying dismissal." 812 F.2d at 853-54 (footnote added). Appellants' prosecutorial misconduct claims
consequently meet the third requirement of the collateral order rule. 7
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