Andersen v. United States

REINHARDT, Circuit Judge,

dissenting:

The majority asserts that it merely applies the clear rule of DiBella and DeMas-sa to the case at hand. The rule is hardly clear and in my view is not applicable to claims of serious, imminent, and irreparable violations of First Amendment rights. Accordingly, I dissent.

The majority treats the appellants’ motion as simply a “functional” 41(e) motion that, under the law of our circuit, is tied to an ongoing criminal proceeding and thus is unappealable. In so doing, the majority fails to consider adequately the nature and importance of the subject matter of the appellants’ motion. The appellants seek to enjoin the government from seizing and making use of their membership lists— lists of the names and other identifying information regarding all current and prospective members of the Institute for Global Prosperity (IGP).

Membership lists have a long and unique history in our constitutional jurisprudence, and the seizure of such items implicates the rights of freedom of association and freedom of speech under the First Amendment. In NAACP v. Alabama, 357 U.S. 449 , 78 S.Ct. 1163 , 2 L.Ed.2d 1488 (1958), the government action at issue, as in this ease, was the compelled disclosure of the organization’s membership lists. Id. at 460 , 78 S.Ct. 1163 . The Court stated that “[i]t is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may consti-tutefan] effective ... restraint on freedom of association.” Id. Thus, the Court recognized that the destruction of members’ anonymity may hamper their individual rights to associate freely. See Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539, 544 , 83 S.Ct. 889 , 9 L.Ed.2d 929 (1963) (stating that right of association includes protection of privacy of association); NAACP, 357 U.S. at 462 , 78 S.Ct. 1163 (“This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations.”).

The concern for the protection of the right of free association, and the ability to maintain one’s privacy in that association, is especially present in political, economic, *811 and religious organizations, NAACP, 357 U.S. at 460 , 78 S.Ct. 1163 , including tax protester groups. First Nat’l Bank v. United States, 701 F.2d 115, 118 (10th Cir.1983) (“The chilling effect of a summons served by an IRS agent to obtain membership records of a tax protester group ... [is] readily apparent”) (internal quotation marks omitted). It is especially important that we be vigilant in our protection “when a group espouses dissident beliefs.” NAACP, 357 U.S. at 462 , 78 S.Ct. 1163 . Accordingly, a government action that directly, or indirectly, limits the freedom to associate “is subject to the closest scrutiny.” Id. at 461 , 78 S.Ct. 1163 ; see also Bates v. Little Rock, 361 U.S. 516, 523 , 80 S.Ct. 412 , 4 L.Ed.2d 480 (1960) (stating that associational rights are protected “from being stifled by more subtle governmental interference”).

Here, the appellants, who head a tax protester organization, assert their rights to association and freedom of speech— rights that we must be particularly vigilant to protect against unwarranted governmental intrusion. They allege that those rights are currently being violated, that there will be additional violations in the near future, and that the government’s actions, if unreviewed by this court, will have an immediate and serious chilling effect upon the organization and its members. The only question addressed in the, majority opinion, and in this dissent, is whether we have the ability to consider appellants’ constitutional claims now, or whether they must await appellate review for an indefinite period of time, perhaps for a significant number of years, by which time the irreparable damage that is attendant on the alleged First Amendment violation -will likely have been done. The majority concludes that “later” — no matter how much later — is good enough. I disagree.

As stated by the majority, DiBella and DeMassa together stand for the proposition that a motion for the return of property is generally not appealable on an interlocutory basis if it is tied to a “criminal prosecution in esse against the movant.” DiBella v. United States, 369 U.S. 121, 132 , 82 S.Ct. 654 , 7 L.Ed.2d 614 (1962); see also DeMassa v. Nunez, 747 F.2d 1283, 1287 (9th Cir.1984). The stated purpose behind this rule is to avoid interference with ongoing criminal cases, as well as to discourage piecemeal litigation and delays in the administration of justice. DiBella, 369 U.S. at 124 , 82 S.Ct. 654 .

The majority asserts that its decision is compelled by DiBella , as interpreted by. DeMassa. 1 disagree. Neither DiBella nor DeMassa addressed the First Amendment, and neither case involved membership lists. Nor did the petitioner in either case seek an injunction to prevent the further seizure of First Amendment materials, as do the appellants here. To the contrary, both DiBella and DeMassa involved petitioners who instituted collateral civil proceedings to assert violations of their Fourth Amendment rights resulting from searches and seizures of drugs and related materials and stolen property, as well as a gun and devices used in a robbery. See DiBella, 369 U.S. at 122 , 82 S.Ct. 654 and 290 F.2d 166 , 167 n. 1 (5th Cir.1961); DeMassa, 747 F.2d at 1285 (also asserting Fifth and - Sixth Amendment). The Supreme Court and this court have said that because Fourth Amendment questions arise regularly in criminal trials and because their resolution may determine the outcome of the criminal matter, they represent “but a step in the criminal case” and should ordinarily be resolved in the course of the criminal proceedings. DiBella, 369 U.S. at 131-32 , 82 S.Ct. 654 ; DeMassa, 747 F.2d at 1288 . While I agree that this general principle ordinarily holds true for claims of Fourth Amendment vio *812 lations, I do not agree that it is applicable to bona fide First Amendment claims, including claims involving past and future seizures of membership lists and similar constitutionally protected materials.

DiBella and DeMassa do not set forth an absolute rule prohibiting all interlocutory appeals in cases involving criminal proceedings. In DiBella, the Court stated that Congress intended such appeals should be permitted where the harm of “error unreviewed before the judgment is definitive and complete [is] greater than the disruption caused by immediate appeal.” Id. (internal citation omitted). The Court also stated that “immediate appeal has been allowed from an order recognized as collateral to the principal litigation ... when the practical effect of the order will be irreparable by any subsequent appeal.” Id. at 126, 82 S.Ct. 654 (internal citation omitted). These exceptions fit within a general public policy permitting interlocutory appeals in criminal cases where rights of exceptional importance are at stake, and where resolution of those rights cannot wait until the close of criminal proceedings. See, e.g., Helstoski v. Meaner, 442 U.S. 500 , 99 S.Ct. 2445 , 61 L.Ed.2d 30 (1979) (permitting immediate appeal of criminal defendant’s motion to dismiss under the Speech or Debate Clause); Abney v. United States, 431 U.S. 651 , 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977) (permitting immediate appeal of criminal defendant’s motion to dismiss on' double jeopardy grounds); Stack v. Boyle, 342 U.S. 1 , 72 S.Ct. 1 , 96 L.Ed. 3 (1951) (permitting immediate appeal of criminal defendant’s motion to reduce bail); see also 18 U.S.C. § 3731 (permitting prosecution to appeal immediately order dismissing indictment, granting motion to suppress, or granting motion for return of property). In my view, the First Amendment right to association is one of those questions of exceptional importance that must be resolved as soon as possible, without waiting for the end of what may be interminable criminal proceedings. See Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 55 , 109 S.Ct. 916 , 103 L.Ed.2d 34 (1989) (“Adjudicating the proper scope of First Amendment protections has often been recognized by this Court as a ‘federal policy’ that merits application of an exception to the general finality rule.”); United States v. P.H.E., Inc., 965 F.2d 848, 857 (10th Cir.1992) (“[F]ederal courts have asserted jurisdiction in a number of contexts involving non-final orders, in which the proceedings complained of infringed upon First Amendment rights”).

In this case, the “criminal proceeding” is the beginning of a grand jury investigation. 1 At that stage of the proceedings, there is no certainty that a criminal indictment will ever issue, and even if probability weighs in favor of an indictment issuing eventually, there is no telling how long that might take. The target of a grand jury investigation may have to wait a fair number of years before he will have the *813 chance to raise his First Amendment claims and, under the majority’s holding, he will be unable during that entire time to take any legal action to prevent the continuing violation of his rights. In my view, an immediate appeal is necessary to afford the appellants a forum in which to assert their First Amendment rights before irreparable injury results.

The Supreme Court has held that when the government seizes material that is protected by the First Amendment, courts must provide increased oversight to ensure that First Amendment rights are not harmed. See New York v. P.J. Video, 475 U.S. 868, 873 , 106 S.Ct. 1610 , 89 L.Ed.2d 871 (1986). For example, a seizure of obscene materials cannot stand absent a warrant and a prompt postseizure judicial determination of its legality. Id., citing Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636 , 88 S.Ct. 2103 , 20 L.Ed.2d 1313 (1968). In keeping with this idea, circuit courts have held that federal courts may exercise their equitable jurisdiction in favor of a potential defendant, who has not yet been indicted and who alleges First Amendment violations, because “[t]he promise of review of a prior restraint at some indefinite, future time does not meet constitutional requirements.” Kitty’s East v. United States, 905 F.2d 1367, 1372 (10th Cir.1990).

In the related Younger abstention context, the Supreme Court has held that the exercise of federal jurisdiction may be appropriate if a violation of First Amendment rights is alleged, even though under normal circumstances it would not be. See Dombrowski v. Pfister, 380 U.S. 479, 489-90 , 85 S.Ct. 1116 , 14 L.Ed.2d 22 (1965) (stating that abstention is inappropriate in cases where the threat of criminal prosecution itself chills freedom of expression). This is because sometimes First Amendment rights cannot adequately be addressed in the state criminal proceeding. Id. at 490-91 , 85 S.Ct. 1116 ; see also Kay-lor v. Fields, 661 F.2d 1177, 1182 (8th Cir.1981) (finding Younger abstention inappropriate as there was “no assurance that [plaintiff] could assert this free-speech claim as a defense to the crime ... with which she is charged”); Gold v. State of Connecticut, 531 F.2d 91 (2d Cir.1976) (per curiam) (stating in Younger abstention context that “federal review may be available where such orders affect First Amendment rights not capable of vindication through direct appeal from conviction”), citing Gerstein v. Pugh, 420 U.S. 103 , 108 n. 9, 95 S.Ct. 854 , 43 L.Ed.2d 54 (1975). 2 Here, the exercise of appellate jurisdiction is justified for similar reasons.

United States v. American Friends Service Committee, 419 U.S. 7 , 95 S.Ct. 13 , 42 L.Ed.2d 7 (1974), the only First Amendment case on which the majority relies, does not alter the analysis in our case. Nowhere does American Friends discuss the First Amendment. Nor does it address an appellate court’s jurisdiction to hear an interlocutory appeal. American Friends simply stands for the proposition that constitutional claims do not constitute exceptions to the Anti-Injunction Act. Id. at 15 , 95 S.Ct. 13 . The question before us, of course, is not whether the Anti-Injunction Act bars appellants’ First Amendment claims (and I think it likely does not), but whether we have jurisdiction to decide on this appeal whether it does, or whether *814 Appellants’ claims should be rejected on other grounds. On that jurisdictional question, I believe that First Amendment principles are controlling.

Appellants have alleged that their First Amendment associational rights, and those of IGP’s members, have been and are currently being chilled by the government’s continuing possession of IGP’s membership lists. In my view, the importance of this claim — and the need to resolve it expeditiously — outweighs any theoretical disruption to the grand jury proceedings that may be occasioned by an immediate appeal. I would hold that this is the kind of claim contemplated by DiBella’s exceptions, and therefore that we have jurisdiction to review it. I respectfully dissent from the majority’s decision to dismiss the appeal.

.. As the majority states, under Ninth Circuit law, a criminal proceeding is in esse once a grand jury investigation has begun. DeMas-sa, 747 F.2d at 1287 . The Sixth, Seventh, Eighth, and Tenth Circuits take a different position, although the Second, Third, and Fourth Circuits share our view. The circuits that disagree with us require charges to be filed before a criminal proceeding is deemed ''pending.” See Blinder, Robinson & Co. v. United States, 897 F.2d 1549, 1554 (10th Cir. • 1990); In re Grand Jury Proceedings, 716 F.2d 493, 496 (8th Cir. 1983); Sovereign News Co. v. United States, 690 F.2d 569, 571 (6th Cir.1982); Mr. Lucky Messenger Serv., Inc. v. United States, 587 F.2d 15, 16 (7th Cir.1978). But see United States v. Regional Consulting Serv., 766 F.2d 870 (4th Cir.1985); United States v. Furina, 707 F.2d 82 (3d Cir.1983); Standard Drywall, Inc. v. United States, 668 F.2d 156 (2d Cir.1982).

. In World Famous Drinking Emporium v. City of Tempe, 820 F.2d 1079 , 1082 (9th Cir.1987), this circuit held that the petitioner's First Amendment challenge under § 1983 was barred by Younger. However, in that case the plaintiffs were also defendants in state court criminal and civil enforcement proceedings, so they had ample opportunity to raise their First Amendment challenge in the ongoing state court proceedings. Here, by contrast, no indictment has issued against Appellants.