U.S. v. Macchia, 1037
| Decision Date | 21 November 1994 |
| Docket Number | D,No. 1037,1037 |
| Citation | 41 F.3d 35 |
| Parties | -7036 UNITED STATES of America, Appellee, v. Lawrence MACCHIA, Defendant-Appellant. ocket 94-1497. |
| Court | U.S. Court of Appeals — Second Circuit |
Gerald B. Lefcourt, Joshua L. Dratel, Lefcourt & Dratel, P.C., New York City, for defendant-appellant.
Robert E. Lindsay, Dept. of Justice, Washington, DC, for appellee.
Before: NEWMAN, Chief Judge, ALTIMARI and LEVAL, Circuit Judges.
This interlocutory appeal in a criminal case endeavors to secure pretrial review of a ruling denying a motion to dismiss an indictment alleged to have been returned in violation of an immunity agreement. The appeal is brought by Lawrence Macchia from the August 24, 1994, ruling of the District Court for the Eastern District of New York (Leonard D. Wexler, Judge), 861 F.Supp. 182, construing the immunity agreement to have conferred only derivative use immunity and not transactional immunity. We conclude that recent Supreme Court pronouncements have altered the law of this Circuit, which formerly permitted such interlocutory appeals, and we therefore dismiss the appeal for lack of appellate jurisdiction.
Macchia and seven co-defendants were indicted for conspiracy to defraud the United States, 18 U.S.C. Sec. 371, and attempting to evade excise taxes, 26 U.S.C. Sec. 7201, in connection with an alleged scheme to avoid paying federal gasoline taxes. The offenses are detailed in United States v. Macchia, 35 F.3d 662 (2d Cir.1994), an unsuccessful pretrial appeal by two of Macchia's co-defendants claiming insulation from trial on double jeopardy grounds. Macchia sought to prevent his trial on the basis of an immunity agreement containing the following language:
Any truthful statements made by Lawrence Macchia in response to questions asked of him by government attorneys and agents during this interview or any information arising from or relating thereto will not be used against Lawrence Macchia in any criminal prosecution by the United States government, or by the State of New York, or its political subdivisions (emphasis added).
Macchia contended in the District Court that the emphasized words, especially the words "or relating thereto," added at the insistence of his counsel, broadened the agreement beyond use immunity and, in effect, conferred transactional immunity since any evidence relevant to the charge against him would necessarily "relat[e] to" his statements. Judge Wexler disagreed, denied the motion to dismiss, and also ruled that a so-called Kastigar hearing, see Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), to determine whether the protection of derivative use immunity was observed, would be deferred until after the trial. This appeal followed.
On September 23, 1994, the Government moved to dismiss for lack of appellate jurisdiction. After considering opposing papers and with the scheduled trial date approaching, we issued an order on October 19, 1994, granting the motion to dismiss and indicating that an opinion would follow. We now issue that opinion.
The Government contends that a pretrial interlocutory appeal is not available to consider a defendant's claim that an immunity agreement has conferred insulation from trial. This jurisdictional issue has evoked varying responses from courts. Compare United States v. Abbamonte, 759 F.2d 1065 (2d Cir.1985) (), with United States v. Bird, 709 F.2d 388 (5th Cir.1983) (), and United States v. Eggert, 624 F.2d 973 (10th Cir.1980) (same). The disagreement has stemmed from uncertainty as to the continued force of the Supreme Court's 1910 decision in Heike v. United States, 217 U.S. 423, 30 S.Ct. 539, 54 L.Ed. 821 (1910). In Heike, the Supreme Court unequivocally rejected an interlocutory appeal in the context of a claim of statutory immunity flowing from a grand jury appearance, 217 U.S. at 433, 54 S.Ct. at 542-43. Sixty-seven years later, however, the continued force of that decision was put in doubt by Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), which allowed an interlocutory appeal of an adverse double jeopardy ruling. Abney rendered Heike uncertain because Heike had explicitly relied on the unavailability of pretrial appeals to challenge adverse double jeopardy rulings. Heike, 217 U.S. at 432, 54 S.Ct. at 542.
The tension between Abney and Heike began to be resolved the year after Abney was decided. In United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978), the Court ruled that an interlocutory appeal was not available from a ruling denying a motion to dismiss for alleged violation of the Sixth Amendment right to a speedy trial. Though the speedy trial claim, if upheld in the trial court, would have insulated the defendant from having to defend against the criminal charges, the Court ruled that the Sixth Amendment right would be adequately vindicated by a reversal of the conviction on appeal from a final judgment. In a footnote, the Court pointed out that not every claim that, if successful, would require dismissal of an indictment may be the basis for interlocutory review, and cited Heike, presumably as an example of claims that must await post-conviction review. Id. at 860 n. 7, 98 S.Ct. at 1552-53 n. 7. However, the MacDonald footnote did not comment on the fact that Abney had allowed pre-conviction appeal of a double jeopardy claim, the analogy on which Heike had relied.
More recently, in Midland Asphalt Corp. v. United States, 489 U.S. 794, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989), the Court elevated the language of the MacDonald footnote to the text, id. at 801, 109 S.Ct. at 1499, and gave a very strong signal that a rejected immunity claim may not be raised on an interlocutory appeal. Midland Asphalt ruled that an interlocutory appeal was not available to challenge the denial of a motion to dismiss an indictment on the ground of an alleged violation by the Government of Rule 6(e) of the Federal Rules of Criminal Procedure. The Court explained that interlocutory appeal may occur not merely when the right at issue, if vindicated, will result in dismissal of the indictment, but only when the right at issue is itself a constitutional or statutory right not to be tried, such as the protections of the Double Jeopardy Clause, see Abney v. United States, supra, or the Speech or Debate Clause, see Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979).
It is arguable that an immunity claim satisfies even the limited right of interlocutory appeal recognized in Midland Asphalt. The argument would be at its strongest if the immunity claim were grounded on statutory insulation, such as that formerly contained in 18 U.S.C. Sec. 3486, repealed by Pub.L. 91-452, tit. II, Sec. 228(a), 84 Stat. 930 (1970). See Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956). Statutes such as former section 3486, which conferred transactional immunity, typically provided that "no such [immunized] witness shall be prosecuted." 18 U.S.C. Sec. 3486(c). Such a prohibition seems to be an "explicit statutory ... guarantee that trial shall not occur," Midland Asphalt, 489 U.S. at 801, 109 S.Ct. at 1499. Nevertheless, we cannot ignore the fact that Midland Asphalt quoted with approval the MacDonald footnote's reference to the unavailability of an interlocutory appeal to challenge immunity claims:
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