# United States v. Dederich

> Court of Appeals for the Ninth Circuit · August 19, 1987 · 825 F.2d 1317

URL: https://www.frixlaw.com/law-library/cases/8952909

## Case

- **Full name:** United States v. Cecilia Jason DEDERICH Elizabeth A. Missakian, Defendants-Appellants The UNITED STATES of America v. David R. BENJAMIN Philip C. Bourdette Miriam R. Bourdette Cecilia J. Dederich Dan L. Garrett, Jr. Elizabeth Missakian Steven Simon Dan Sorkin, Defendants-Appellants David R. BENJAMIN, Miriam R. Bourdette, Philip C. Bourdette, Cecilia Jason Dederich, Dan L. Garrett, Jr., Elizabeth A. Missakian, Steven Simon and Dan Sorkin v. UNITED STATES DISTRICT COURT for the EASTERN DISTRICT OF CALIFORNIA, United States of America, Real Party in Interest Cecilia Jason DEDERICH and Elizabeth Missakian v. UNITED STATES DISTRICT COURT for the EASTERN DISTRICT OF CALIFORNIA, United States of America, Real Party in Interest
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** August 19, 1987
- **Citations:** 825 F.2d 1317; 1987 U.S. App. LEXIS 11242
- **Precedential status:** Published
- **Opinion:** Dissent by Thompson
- **Judges:** Canby, Reinhardt, Thompson
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8952909

## Opinion text

DAVID R. THOMPSON, Circuit Judge,
dissenting:
This circuit has held that a district court’s pre-trial order denying a motion to dismiss an indictment because of grand jury irregularities is not immediately ap-pealable. United States v. Garner, 632 F.2d 758, 765 (9th Cir.1980), cert. denied, 450 U.S. 923 , 101 S.Ct. 1373 , 67 L.Ed.2d 351 (1981). See United States v. Bendis, 681 F.2d 561, 569 (9th Cir.1981), cert. denied, 459 U.S. 973 , 103 S.Ct. 306 , 74 L.Ed.2d 286 (1982); United States v. Linton, 655 F.2d 930, 932 (9th Cir.1980) (per curiam), cert. denied, 451 U.S. 912 , 101 S.Ct. 1984 , 68 L.Ed.2d 301 (1981). In Gamer we stated:
We are convinced that, especially in the criminal context, the policy against piecemeal appellate adjudication is sound and that the exceptions to the rule should be few. To allow an interlocutory appeal in this instance would create nothing short of chaos in the criminal justice system.
Garner, 632 F.2d at 766 . Today, however, as they did in United States v. Benjamin, 812 F.2d 548 (9th Cir.1987) (“Benjamin /”), the majority once again permits piecemeal appellate adjudication. In their view, if the defendants are not permitted to appeal at this stage of the case, Mechanik v. United States, 475 U.S. 66 , 106 S.Ct. 938 , 89 L.Ed.2d 50 (1986) will prevent any post-conviction appellate review of errors that affected the grand jury proceedings to the defendants’ detriment. I do not agree.
In Benjamin I, the claimed grand jury irregularity was an alleged violation of Federal Rule of Criminal Procedure 6(e). Benjamin I, 812 F.2d at 550 . In moving to obtain disclosure of grand jury transcripts, the government had failed to disclose to the district court that the government’s expert consultant, who was a grand jury witness, was a party to a pending civil suit against the defendants. The district court denied a defense motion to dismiss the indictment for the claimed Rule 6(e) violation. The defense appealed the denial of that motion. A majority of a three-judge motions panel of this court denied the government’s motion to dismiss the appeal, because according to the majority’s reading of Mechanik the claim of error would be unreviewable if it were not raised prior to trial. Id. at 551-52. I dissented in Benjamin I
[bjecause of (1) the strong policy against piecemeal appellate adjudication; (2) the view that Mechanik should be narrowly construed (see United States v. Taylor, 798 F.2d 1337, 1340 (10th Cir.1986) (“Me-chanik was carefully crafted along very narrow lines, and it has not resulted in another exception to the final judgment rule.”)); and (3) the distinction between a Rule 6(d) violation which affects the grand jury’s decision to indict and a Rule 6(e) violation which may contravene the policy of grand jury secrecy....
Id. at 556.
I dissent in this case for the first two reasons stated in my dissent in Benjamin I. The strong public policy against piece *1323 meal appellate adjudication needs no elaboration. The view that Mechanik should be narrowly construed leads me to conclude that while Mechanik doco not apply to the present case, United States v. Taylor, 798 F.2d 1337 (10th Cir.1986) does. In Taylor
The defendants moved in the district court for dismissal of a multicount mail fraud indictment on several grounds: (1) invasion of the defense camp by the prosecution in violation of the attorney-client privilege and defendants’ Sixth Amendment rights; (2) abuse of the grand jury through prosecutorial misconduct in the form of the prosecution’s failure to present exculpatory evidence and its biasing of the grand jury with inadmissible, inflammatory, and prejudicial evidence; and (3) improper utilization of state officers in the grand jury investigation.
Taylor, 798 F.2d at 1338 .
The district court in Taylor denied a defense motion to dismiss. The defense appealed. The government moved to dismiss the appeal, contending that the district court’s order was not immediately ap-pealable because it did not fall within the collateral order exception created by Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949). The Tenth Circuit stated: “The dis-positive issue presented for review is whether the order has been made appeal-able by [Mechanik ].” Taylor, 798 F.2d at 1338 . The court held it had not and distinguished Mechanik :
In Mechanik , no allegations were made that the government attempted to unfairly sway the grand jury or to otherwise affect the fairness of the accusatory process. There was no alleged pervasive attempt to charge without cause or to undermine the defense. In short, there was no question whether the government had transgressed the defendants' rights to fundamental fairness. The error of which the prosecution was guilty, at worst, was technical, and, at most, could have affected only the grand jury’s determination of probable cause. Since the error was not discovered until after the trial began, the trial was more than three months in duration, and the outcome effectively eliminated any question of whether there was probable cause, the Court found the error was harmless.
The Supreme Court in Mechanik did not hold that a Rule 6 violation of any sort of any other act which affects the fundamental fairness of the criminal proceedings discovered prior to trial is not justiciable after conviction. That is a critical distinction.
The issues raised by the defendants are not of the technical variety. They are asserting that their right to fundamental fairness has been adversely affected by the various acts of which they complain. A petit jury determination of guilt will not moot these issues because they go beyond the question of whether the grand jury had sufficient evidence upon which to return an indictment. Accordingly, to the extent they have been properly preserved, these issues can be raised upon appeal if the defendants are convicted. See, e.g., United States v. Hinton, 543 F.2d 1002 (2d Cir.), cert. denied, 429 U.S. 980 , 97 S.Ct. 493 , 50 L.Ed.2d 589 (1976). We see no justification for abandonment of the long-standing principle that disfavors piecemeal appeals; therefore, this appeal must be dismissed. United States v. Hollywood Motor Car Co., 458 U.S. 263 , 102 S.Ct. 3081 , 73 L.Ed.2d 754 (1982).
Taylor, 798 F.2d at 1340 (footnote omitted).
The claims made by the defendants in the present case resemble the claims made in Taylor . 1 As in Taylor , the issues raised by the defendants in this case “are not of the technical variety. They are asserting that their right to fundamental fairness *1324 has been adversely affected by the various acts of which they complain. A petit jury determination of guilt will not moot these issues because they go beyond the question of whether the grand jury had sufficient evidence upon which to return an indictment.” Id.
I would grant the government’s motion to dismiss the appeals because I do not believe Mechanik compels the conclusion reached by the majority. I would deny the petitions for writs of mandamus due to the absence of any Bauman factors. See Bauman v. United States, 557 F.2d 650 (9th Cir.1977).
I concur in the grant of the government’s motion to dismiss the Dederich and Missa-kian appeal in No. 86-1387, and to deny Dederich and Missakian’s conditional petition for writ of mandamus (No. 87-7055).
. In the present case, the “[djefendants alleged that the prosecutor’s misconduct before the grand jury included calling witnesses for the sole purpose of repeatedly forcing them to assert their fifth amendment privilege, harassing Synanon-associated witnesses, failing to present evidence that cast doubt on the credibility of witnesses, making derogatory comments about Synanon and the Synanon lifestyle, presenting irrelevant and false, prejudicial evidence, and abusing the grand jury’s subpoena authority." (Majority opinion at 1319).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8952909. Public record. Not legal advice.