U.S. v. Helmsley, 482

• Citation: 864 F.2d 266
• Decision Date: 29 December 1988
• Docket Number: D,No. 482,482
• Parties: UNITED STATES of America, Appellee, v. Harry B. HELMSLEY, Leona M. Helmsley, Joseph V. Licari, and Frank J. Turco, Defendants, Leona M. Helmsley, Defendant-Appellant. ocket 88-1391.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 266

864 F.2d 266

UNITED STATES of America, Appellee, v. Harry B. HELMSLEY, Leona M. Helmsley, Joseph V. Licari, and Frank J. Turco, Defendants, Leona M. Helmsley, Defendant-Appellant.

No. 482, Docket 88-1391.

United States Court of Appeals, Second Circuit.

Argued Oct. 18, 1988.

Decided Dec. 29, 1988.

James A. Bruton, Washington, D.C. (Williams & Connolly, Gerald A. Feffer, Washington, D.C., of counsel, Gallop, Dawson & Clayman, Charles E. Clayman, New York City, of counsel on the brief), for defendant-appellant.

Robert Hammel, Asst. U.S. Atty., Southern District of New York, (Rudolph W. Giuliani, U.S. Atty., Linda Imes, Asst. U.S. Atty., Southern District of New York, New York City, of counsel), for appellee.

Before VAN GRAAFEILAND, CARDAMONE and PIERCE, Circuit Judges.

CARDAMONE, Circuit Judge:

This is an appeal from an order denying a motion to dismiss an indictment that charges Leona M. Helmsley with a long litany of activities in which she allegedly promoted her own financial self-interest in violation of the law. The legal hurdle appellant faces is the finality rule, which she tried without success to surmount once before. Her present appeal is nothing more than a repackaged version of the first attempt, with the added request that--if this edition meets the same fate as the former one--we lower the legal hurdle. The finality rule limits appeals so that only those taken from a final judgment may be heard. It has been the notion of our law since its earliest days to avoid piece-meal interlocutory appeals because of the consequent delays they create. That rule has served long and well and this interlocutory appeal presents no reason for altering it. Hence Appellant Helmsley appeals from an August 30, 1988 order of the United States District Court for the Southern District of New York (Walker, J.) denying her motion to dismiss an indictment filed against her, and also denying her motion for a pre-trial Kastigar hearing on her allegation that the government has abridged her Fifth Amendment rights. See Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). Appellant moved for an expedited appeal from the above order, to which the government consented, and the district court rescheduled her trial for January 23, 1989. This appeal was heard on October 18, 1988. We now dismiss it.

appellant's claim must await final judgment after trial on the charges.

I FACTS AND PROCEDURAL HISTORY

The 47-count indictment charges Leona M. Helmsley and her husband, Harry B. Helmsley, and two other officers of the Helmsley Corporations with using their control of a large group of real estate, hotels, insurance and related business over the period from June 1983 to October 1986, with conspiracy to defraud the United States and the Internal Revenue Service. In addition to conspiracy, the defendants are charged with tax evasion of approximately $1.2 million, filing false tax returns, mail fraud--involving an allegedly fraudulent use of corporate funds to pay for the renovation of "Dunnellen Hall" in Greenwich, Connecticut--and extortion. The last charge alleges that defendant Helmsley demanded kickbacks of goods and services for Dunnellen Hall from certain contractors and vendors doing business with the Helmsley organization, threatening them that Helmsley business would be withheld unless the kickbacks were paid.

The indictment was filed on April 14, 1988. In her first challenge appellant moved on June 17 to dismiss it on the grounds of a prejudicial leak of pre-trial publicity, which defendant claimed constituted violations of grand jury secrecy in contravention of Fed.R.Crim.P. 6(e). The district court denied defendant's Rule 6(e) motion on July 29, 1988. A panel of this Court issued a summary order on September 14, 1988 dismissing for lack of jurisdiction defendant's appeal from that denial.

The instant appeal is defendant's second challenge to the indictment. It concerns Leona Helmsley's June 11 and November 7, 1985 appearances before a New York County grand jury investigating allegations of New York State sales tax fraud. On June 17, 1988 defendant--who had previously entered a not guilty plea--moved for a hearing and dismissal of her federal indictment. Defendant claims her Fifth Amendment rights were violated; she alleges that the federal grand jury made use of her June and November, 1985 immunized state grand jury testimony. Appellant complains of "taint" of the federal grand jury process because of press reports of her testimony before the state grand jury, from an overlap in state and federal prosecutorial personnel, and from the prosecutors' alleged sharing of evidence. In sum, Helmsley contends that she was targeted for the federal prosecution by virtue of her state grand jury testimony. On August 30, 1988 Judge Walker denied this motion to dismiss the indictment, and ruled that the Kastigar hearing could be held after the trial in the event of a conviction. This expedited appeal followed.

II DISCUSSION

This second motion to dismiss the indictment is cast in somewhat obscure terms, perhaps to avoid appearing to challenge the same indictment before the same district court judge on essentially the same grounds. It appears to allege general unfairness of the grand jury process rather than the earlier more specific attack she made under Rule 6(e). Stripped of its subtleties, defendant Helmsley's argument, in essence, asks that the collateral order exception to the finality rule be expanded. This request is based on defendant's contention that if review is not granted now, protection of her Fifth Amendment rights will be forever lost. To put her arguments for an expansion of the collateral order exception in proper perspective, we discuss

first the finality rule, and then the collateral order doctrine exception to it.

A. The Finality Rule and the Collateral Order Exception

In creating those courts inferior to the Supreme Court, Congress since the Judiciary Act of 1789 has carefully limited their appellate jurisdiction. Under 28 U.S.C. Sec. 1291 appeal is allowed only "from all final decisions of the district courts." In a criminal case, as here, an appeal usually may be taken only after sentence has been imposed because that is the final judgment in such a case. Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 1053, 79 L.Ed.2d 288 (1984); Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937); "Project: Seventeenth Annual Review of Criminal Procedure" 76 Geo.L.J. 1199, 1206 n. 3330 (1988) (collecting cases). The "finality" rule has been the cornerstone of appellate jurisdiction from the earliest days of the Republic. See DiBella v. United States, 369 U.S. 121, 124, 82 S.Ct. 654, 656, 7 L.Ed.2d 614 (1962). The rule promotes appellate deference to trial judges, reduces the ability of litigants to engage in delaying tactics, avoids piecemeal appeals, and is recognized as an essential tool in the efficient administration of justice. See Flanagan, 465 U.S. at 263-64, 104 S.Ct. at 1053-54 (1984); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981).

The recited policy considerations of prompt adjudication underlying the finality rule are of even greater moment in the field of criminal law. See Flanagan, 465 U.S. at 264, 104 S.Ct. at 1054. These policies are undermined when the conclusion of the criminal proceedings are fragmented and delayed. Thus, not only the accused but also society have a strong interest in avoiding delay. See id. 465 U.S. at 264-65, 104 S.Ct. at 1054-55; United States v. Hollywood Motor Car, 458 U.S. 263, 265, 102 S.Ct. 3081, 3082, 73 L.Ed.2d 754 (1982); Cobbledick v. United States, 309 U.S. 323, 325-26, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940). In light of these considerations, the collateral order exception is more narrowly circumscribed in criminal cases. Appeals prior to final judgment are therefore limited to three kinds of cases. See Abney v. United States, 431 U.S. 651, 656-62, 97 S.Ct. 2034, 2038-41, 52 L.Ed.2d 651 (1977) (Double Jeopardy); Helstoski v. Meanor, 442 U.S. 500, 508, 99 S.Ct. 2445, 2449, 61 L.Ed.2d 30 (1979) (Speech and Debate Clause); Stack v. Boyle, 342 U.S. 1, 6, 72 S.Ct. 1, 4, 96 L.Ed. 3 (1951) (motion to reduce bail).

Congress recognized that rigid enforcement of the finality rule may in some cases cause grave injustice. It therefore created certain exceptions by statute. See, e.g., 28 U.S.C. Sec. 1292(a) (injunctions, receivership, admiralty). Moreover, the Supreme Court has traditionally given the finality rule a "practical rather than a technical construction." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949).

Cohen articulated what has become known as the collateral order exception to the finality rule. The Court stated that in a small class of cases there are claims of right "separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id. at 546, 69 S.Ct. at 1226. The doctrine today permits immediate appeal of an order that conclusively determines the disputed question, which issue is completely separate from the merits of the action, and which is effectively unreviewable on appeal from a final judgment. Coppers & Lybrand v. Livesay, 437 U.S. 463, 468-69, 98 S.Ct. 2454, 2457-58, 57 L.Ed.2d 351 (1978); Abney v. United States, 431 U.S. 651, 658, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977).

B. Appellant's Fifth Amendment Claim

None of the limited claims in criminal cases of Double Jeopardy, Speech and Debate Clause, or reduction of bail are raised on this appeal. Instead, appellant principally argues that we should create a new exception to the finality rule in cases involving The taint arises, Helmsley claims, because ...