U.S. v. McVeigh, 98-1247

• Decision Date: 05 October 1998
• Docket Number: No. 98-1247,98-1247
• Citation: 157 F.3d 809
• Parties: 98 CJ C.A.R. 5176 UNITED STATES of America, Plaintiff-Appellee, v. Timothy James McVEIGH, Defendant-Appellant, and Terry Lynn Nichols, Intervenor. State of Oklahoma, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 809

157 F.3d 809

98 CJ C.A.R. 5176

UNITED STATES of America, Plaintiff-Appellee, v. Timothy James McVEIGH, Defendant-Appellant, and Terry Lynn Nichols, Intervenor.

State of Oklahoma, Amicus Curiae.

No. 98-1247.

United States Court of Appeals, Tenth Circuit.

Oct. 5, 1998.

Submitted on the Briefs: ^*

Sean Connelly, Special Attorney to United States Attorney General, Denver, CO (Patrick M. Ryan, United States Attorney, Oklahoma City, OK, Larry A. Mackey, Special Attorney to United States Attorney General, Denver, CO, with him on the briefs), for Plaintiff-Appellee.

Robert Nigh, Jr., Tulsa, OK, and Richard Burr, Houston, TX, for Defendant-Appellant.

Susan L. Foreman, Michael E. Tigar, and Adam Thurschwell, Boulder, CO (Jane B. Tigar, Boulder, CO, with them on the briefs), for Intervenor Terry Lynn Nichols.

Robert H. Macy, District Attorney, and Patrick J. Morgan, First Assistant District Attorney, Oklahoma City, OK, for Amicus Curiae State of Oklahoma.

Before EBEL, KELLY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Defendant Timothy McVeigh appeals from the district court's June 24, 1998, order rescinding certain restrictions which prevented federal agents from cooperating with state officials investigating the Oklahoma City bombing ¹. With intervenor Terry Lynn Nichols, Mr. McVeigh maintains the district court erred when it granted the government's motion to rescind a previously imposed prohibition on federal cooperation with the Oklahoma County District Attorney and especially empaneled state grand jury in Oklahoma. We exercise jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) and affirm on the merits.

Background

On August 10, 1995, the federal grand jury in the Western District of Oklahoma indicted Timothy McVeigh and Terry Lynn Nichols on multiple charges stemming from the bombing of the Alfred P. Murrah office building in Oklahoma City on April 19, 1995. See United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998)(providing factual background). On August 23, 1995, Judge Wayne Alley, then the presiding judge of the district court proceedings, entered an "Agreed Order" which addressed several pretrial matters. That order stated, in pertinent part:

Discovery materials may be disclosed only to the parties, their counsel and agents, except that such materials may be disclosed as necessary: (a) during court proceedings, including trial, hearings, or legal filings in this case; or (b) to potential witnesses, provided that such witnesses are made aware of and agree to honor the terms of this protective order.

ROA Vol. II, doc. 228, at 4. Following the recusal of Judge Alley, and subsequent transfer of the proceedings to Chief Judge Matsch in Colorado, counsel for Mr. Nichols filed a motion seeking an in camera inquiry to determine whether individuals with access to discovery materials were violating the Agreed Order through inappropriate dissemination of information to the press. The government joined in that motion.

On June 13, 1996, the district court entered an order entitled "Memorandum Opinion and Order Regarding Extrajudicial Statements by Attorneys and Support Personnel." That order covered a broad scope of issues. Its intent, however, was to "articulate the particular standards to be followed in this litigation ... for future guidance in all forms of extrajudicial statements about [the] litigation." United States v. McVeigh, 931 F.Supp. 756, 760 (D.Colo.1996). The order provided:

A. None of the lawyers in this case or any persons associated with them, including any persons with supervisory authority over them, will release or authorize the release of information or opinion about this criminal proceeding which a reasonable person would expect to be disseminated by any means of public communication, if there is a reasonable likelihood that such disclosure will interfere with a fair trial of the pending charges or otherwise prejudice the due administration of justice.

B. This duty to refrain from prejudicial disclosures requires all counsel to take reasonable precautions to prevent all persons who have been or are now participants in or associated with the investigations conducted by the prosecution and defense from making any statements or releasing any documents that are not in the public record and that are reasonably expected to be publicly disseminated which would be likely to materially prejudice the fairness of this criminal proceeding.

Id. In addition, the district court went on to prohibit any extrajudicial statements concerning "[t]he existence or contents of any statements given by the defendants to any law enforcement personnel" and "[t]he performance of any examinations or tests or any defendant's refusal or failure to submit to any examination, or test." Id.

Timothy McVeigh's trial concluded in June of 1997 with a guilty verdict on all counts. In September of 1997, prior to Mr. Nichols' trial, the government filed a motion to clarify whether the orders restricting extrajudicial statements likewise prohibited the prosecution's cooperation with the Oklahoma grand jury investigating the bombing. In a hearing held on September 8, 1997, the district court indicated the government could not disseminate materials to Oklahoma authorities. The court stated "I don't want to be interpreted as trying to obstruct a lawful grand jury in Oklahoma. On the other hand, my responsibility is to this trial and this case....And [the Oklahoma state grand jury is] just going to have to wait ... until the conclusion of these proceedings." ROA Vol. I, Tr. of 9/8/97, at 21-22.

Approximately three months later, after completion of Mr. Nichols' trial, the district court received a letter from the state trial judge conducting the grand jury proceedings in Oklahoma. In that letter, which was forwarded to all the parties, the judge made specific inquiry whether the two orders at issue here prevented federal assistance in the state proceedings. Using the letter as a catalyst, the government filed a formal motion requesting removal of any restrictions which would prohibit cooperation with state authorities. On June 24, 1998, the district court entered an order granting the government's request "insofar as this court's previous orders precluded the federal government's cooperation with the Oklahoma County District Attorney and the especially empaneled state grand jury, except that the government shall not disclose any documents, papers, objects and information provided by the defendants through reciprocal discovery." ROA Vol. II, doc. 6149, at 3. On July 1, 1998, Mr. McVeigh filed his notice of appeal. We granted a stay of the order that same day. ²

Discussion

As a threshold matter, we must consider whether we have jurisdiction to consider this appeal. See United States v. Dickstein, 971 F.2d 446, 447 (10th Cir.1992). Generally, we are limited to considering final orders which are accompanied by the entry of judgment. See 28 U.S.C. § 1291. Here, however, we are in a curious procedural posture. The trial court's June 24 order was issued after entry of judgment in Mr. McVeigh's case. Indeed, his direct criminal appeal was at issue at the time the order was filed. Nevertheless, the order was interlocutory in nature. As a result, we must consider whether it is immediately appealable under any of the recognized exceptions to the final judgment rule. Because we conclude the order had the effect of modifying or dissolving a previously imposed injunction, we have jurisdiction under 28 U.S.C. § 1292(a)(1).

Section 1292(a)(1) provides that courts of appeal shall have jurisdiction to hear matters arising from orders "granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions." 28 U.S.C. § 1292(a)(1). If the order in question is clearly injunctive in nature, the statute provides a vehicle for immediate appeal without further inquiry. See MAI Basic Four, Inc. v. Basis, Inc., 962 F.2d 978, 981 (10th Cir.1992). Where, as here, however, the order in question merely has the "practical effect" of an injunction, we apply a three part test to determine applicability of the statute. See id. at 982.

To invoke § 1292(a)(1) jurisdiction here, the district court's order 1) must have the practical effect of granting or denying injunctive relief, 2) must be one which will result in serious or irreparable consequences if executed, and 3) must be a directive which can be challenged effectively only through immediate appeal. See Tri-State Generation & Transmission Ass'n v. Shoshone River Power, Inc., 874 F.2d 1346, 1351 (10th Cir.1989); United States v. Colorado, 937 F.2d 505, 507-08 (10th Cir.1991). Each prong must be satisfied in order for jurisdiction to attach. State of Utah ex rel Utah State Dep't of Health v. Kennecott Corp., 14 F.3d 1489, 1496-97 (10th Cir.1994) (rejecting jurisdiction where appellant did not meet all three prongs).

The government maintains that because the underlying orders merely controlled the course of discovery they cannot be injunctive in nature. Discovery orders are generally not appropriate for interlocutory review. See FTC v. Alaska Land Leasing, Inc., 778 F.2d 577, 578 (10th Cir.1985). At the core of the June 16, 1996, order, however, was a prohibition on exchanging information. The order did not, as the government maintains, merely "regulate materials exchanged between the parties incident to the litigation." United States v. Pappas, 94 F.3d 795, 798 (2nd Cir.1996). Rather, it prohibited federal agents from cooperating with state authorities in an ongoing criminal investigation. The trial court's June 24 order constituted a dissolution of the earlier prohibition. As such, it was injunctive in effect. See United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1426 (10th Cir.1990)(finding jurisdiction where order at issue modified a prior protective order following conclusion of the trial court proceedings).

We likewise conclude app...