U.S. v. Fisher, s. 88-1536

• Decision Date: 31 March 1989
• Docket Number: 88-1537,Nos. 88-1536,s. 88-1536
• Citation: 871 F.2d 444
• Parties: UNITED STATES of America, Appellee, v. FISHER, Herbert K., Appellant. UNITED STATES of America, Appellee, v. BLOOM, Herman, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 444

871 F.2d 444

UNITED STATES of America, Appellee, v. FISHER, Herbert K., Appellant.

UNITED STATES of America, Appellee, v. BLOOM, Herman, Appellant.

Nos. 88-1536, 88-1537.

United States Court of Appeals Third Circuit.

Argued Dec. 2, 1988.

Decided March 31, 1989.

William J. Winning, Curran, Winning & Fioravanti, P.C., Media, Pa., Peter Goldberger (argued), Pamela A. Wilk, Philadelphia, Pa., for appellant Fisher.

Joel Harvey Slomsky (argued), DiGiacomo & Slomsky, Philadelphia, Pa., for appellant Bloom.

Richard L. Scheff (argued), Asst. U.S. Atty., Philadelphia, Pa., for appellee U.S.

Before HIGGINBOTHAM, MANSMANN, and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge:

This appeal presents as a threshold issue the appealability of the district court's order which denied appellants/defendants, Herbert K. Fisher and Herman Bloom's, motions to dismiss their indictment. The briefs on appeal discussed at length the details of certain alleged misconduct before grand juries by government agents. Because of our disposition, we do not find it necessary to address the arguments made with respect to the particular alleged incidents or the evidence given by the agents, other than to briefly describe the arguments giving rise to the defendants' motions. We will deny both appeals for want of an appealable order.

I.

On October 23, 1986, Fisher and Bloom were indicted along with others (the first indictment), as part of the "Roofers case". ¹ The indictment charged Bloom with four counts including violations of 18 U.S.C. Sec. 1962 ("RICO" and "RICO" conspiracy), 18 U.S.C. Sec. 1954 (offer to influence operations of an employee benefit plan) and 18 U.S.C. Sec. 664 (embezzlement from an employee benefit plan). Fisher was charged in eight counts with violating the same statutes. On May 14, 1987 the district court ordered a three-way severance of defendants, with Fisher and Bloom constituting one grouping.

On June 18, 1987 Fisher and Bloom were indicted (the second indictment), on charges similar to those alleged in the first indictment. On November 18, 1987, and December 14, 1987, both defendants filed motions to dismiss the first and second indictments. Shortly before a hearing was scheduled by the district court to resolve the contentions raised by Fisher and Bloom concerning the first two indictments, the government announced its intention to seek a second superceding indictment (the third indictment).

On January 21, 1988 Fisher and Bloom were again indicted by a different grand jury in an eight-count indictment and they were again charged under RICO and with RICO conspiracy under 18 U.S.C. Secs. 1962(c) and (d), with aiding and abetting the solicitation or acceptance of a kickback to influence the operation of an employee benefit plan, and with embezzlement from the plan under 18 U.S.C. Secs. 664 and 1954.

On March 7, 1988 Fisher and Bloom filed supplemental motions to dismiss the third indictment, alleging grounds different than the grounds alleged in the motions brought to dismiss the first two indictments.

Fisher and Bloom claimed that the prosecutor in obtaining the third indictment misled the grand jury and, therefore, the third indictment did not cure the grand jury abuse and prosecutorial misconduct which occurred in connection with the first two indictments. Fisher and Bloom, therefore, contended that all three indictments demonstrated a pattern of harassment and prosecutorial misconduct.

On June 29, 1988 the district court denied Fisher and Bloom's motions to dismiss any of the three indictments. 692 F.Supp. 495. The district court found no misconduct on the part of the government with respect to the grand jury which returned the first two indictments, nor did it find that any prosecutorial misconduct occurred before the final grand jury which returned the third indictment. Because of the nature of the defendants' arguments which claimed a pattern of misconduct extending through all the grand jury proceedings--a pattern which Fisher and Bloom claimed was not cured by the third indictment--the district court was obliged to analyze and rule upon the government's conduct before each of the grand juries.

Fisher and Bloom appeal from the district court's June 29, 1988 order relying on the "collateral order" doctrine for appealability. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). ²

II.

Under 28 U.S.C. Sec. 1291, only final orders are appealable. A final order "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978), quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). However, an exception to the final order requirement of appealability has emerged. That exception enables a party to appeal an interlocutory decision prior to final judgment of conviction when all three conditions of the "collateral order" doctrine have been satisfied. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981).

The collateral order doctrine which found expression in Cohen, supra, permits appellate review of interlocutory orders that: (1) conclusively determine the disputed question; (2) resolve an issue completely separate from and collateral to the merits of the litigation, and; (3) involve an important right that will be effectively unreviewable if intermediate review is not granted. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949); U.S. v. Liotard, 817 F.2d 1074, 1079-80 (3d Cir.1987); Flanagan v. U.S., 465 U.S. 259, 265, 104 S.Ct. 1051, 1054, 79 L.Ed.2d 288 (1984); Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978).

Here, we forebear from addressing the first two prongs of the Cohen doctrine ³ as it is the third prong (i.e., is the denial of a motion to dismiss an indictment on grounds of prosecutorial misconduct effectively reviewable?) which the parties have briefed and as to which the parties have joined issue.

A.

Fisher and Bloom argue that in the wake of U.S. v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986) claims of grand jury irregularities are effectively unreviewable after conviction. As a result, they argue denials of these claims must give rise to an immediate appeal under the "collateral order" doctrine.

In Mechanik, two government witnesses, in the presence of each other, testified at a grand jury proceeding. They did so in violation of Fed.R.Crim.P. 6(d) which specifies who may be present during a grand jury proceeding and limits witnesses to only "the witness under examination." The Mechanik defendants only learned of the joint testimony after trial had begun. At that time they moved to dismiss their indictment because of the 6(d) violation. At the conclusion of the trial and after the jury had returned a guilty verdict, the district court denied their motion to dismiss the indictment on the grounds that the violation of Rule 6(d) was harmless. The Court of Appeals for the Fourth Circuit reversed the conviction. The Supreme Court, in turn, reversed the Court of Appeals and upheld the district court's action in rejecting a dismissal of the indictment. In doing so, it stated that "... the petit jury's verdict rendered harmless any conceivable error in the charging decision that might have flowed from the violation." Id. at 73, 106 S.Ct. at 943.

In the present case, unlike the situation in Mechanik where trial had begun before the defect in the grand jury proceedings had been discovered, Fisher and Bloom made their allegations of grand jury violations prior to trial. They complain that if these errors are not recognized at this juncture, they can never be reviewed after trial because of the "harmless error" doctrine announced in Mechanik. Fisher and Bloom hypothesize that if they are convicted, the grand jury errors, if any, will be deemed harmless under Mechanik, and if they are acquitted, their motions to dismiss the indictment will be deemed moot.

Fisher and Bloom reason that if an interlocutory appeal is permitted after a motion to reduce pretrial bail has been denied, as it was in Stack v. Boyle 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951), then so too should their appeal be permitted where a motion to dismiss an indictment based on alleged grand jury irregularities has been denied. Fisher and Bloom argue that they are in no different position than was Stack.

In Stack, the Supreme Court, citing to Cohen, held that the right to an immediate appeal of a denial of pretrial bail reduction must be allowed. If it were otherwise, observed the Court, adherence to the final judgment rule as a practical matter would defeat the right to review at all, since the right to a reduction of bail would be moot after either acquittal or conviction.

Thus, Fisher and Bloom argue that no effective review of the district court's denial of their dismissal motion can be had after trial and that accordingly a review of that ruling should be available now, under the collateral order doctrine of Cohen. ⁴

This Court and other Courts of Appeal (with the exception of the Ninth Circuit), which have considered the issue of "effective reviewability" in connection with interlocutory appeals from grand jury proceedings, have uniformly rejected pre-trial appeals from orders denying the dismissal of indictments. Midland Asphalt Corp. v. U.S., --- U.S. ----, 109 S.Ct. 1494, --- L.Ed.2d ---- (1989); U.S. v. Johns, 858 F.2d 154 (3d Cir.1988); U.S. v. LaRouche Campaign, 829 F.2d 250 (1st Cir.1987); U.S. v. Taylor, 798 F.2d 1337 (10th Cir.1986); but see U.S. v. Dederich, 825 F.2d 1317 (9th Cir.1987); and U.S. v. Benjamin, 812 F.2d 548 (9th Cir.1987), petition for cert. filed, 57 U.S.L.W. 3522 (U.S. Feb. 14, 1989) (No. 88-1290).

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