In Re Grand Jury Investigation. Appeal of United States of America

ALDISERT, Circuit Judge,

dissenting.

One who has been served with a federal grand jury subpoena duces tecum may move the district court to quash the subpoena. If the motion is denied, the subject of the subpoena may not obtain immediate appellate review of the order, United States v. Ryan, 402 U.S. 530 , 91 S.Ct. 1580 , 29 L.Ed.2d 85 (1971); Cobbledick v. United States, 309 U.S. 323 , 60 S.Ct. 540 , 84 L.Ed. 783 (1940). This case presents the converse situation — the government seeks immediate appellate review of a district court order granting a motion to quash a grand jury subpoena. The majority finds such an order to be appealable, on the authority of In re Grand Jury Empanelled February 14, 1978 (Colucci), 597 F.2d 851 (3d Cir. 1979). Because I believe that Colucci was wrongly decided, I dissent from the majority’s determination that this court possesses subject matter jurisdiction to entertain this appeal.

The panel in Colucci accepted the government’s contentions in favor of appealability, which were also made before this panel at its own request, and held that two separate grounds support the government’s right to appeal: (1) 28 U.S.C. § 1291 , granting jurisdiction to courts of appeals from final decisions of district courts, and (2) 18 U.S.C. § 3731 , 1 allowing appeals by the government in criminal proceedings under certain circumstances. 2 Colucci’s analysis of the basic issues was, in my view, incomplete and unconvincing. With respect to § 1291, it has not persuaded me that what is sauce for the goose, i. e., the grand jury witness whose motion to quash a subpoena is denied, should not also be sauce for the government gander when such a motion is granted. It does not present a reasoned analysis of why an individual who fails to prevail before a district court is denied a review while the government, when it loses, is entitled to review. Colucci does not provide a reasoned discourse on why a district court’s order denying relief is not a final judgment, while an order granting relief is. Colucci puts this court’s imprimatur on a judicial process that permits the government to say, “Heads I win, tails you lose.” Such blatant inequality of opportunity for appellate relief offends the most primitive notions of fairness conceptualized on right reason distributed equally.

The Colucci panel’s treatment of § 3731 is even less persuasive. It pronounces an ipse dixit that a grand jury’s session is a “criminal proceeding” and blithely refuses to discuss whether the subject of the subpoena qualifies as “a substantial proof of a fact material in the proceeding,” a statutory concomitant of an appeal under § 3731. *1239 Indeed, this factor seems to have been swept under the juridical rug.

I.

The starting point for any consideration of the § 1291 final judgment rule in this case is the express determination by the Supreme Court in DiBella v. United States, 369 U.S. 121 , 82 S.Ct. 654 , 7 L.Ed.2d 614 (1962):

An order granting or denying a pre-in-dietment motion to suppress does not fall within any class of independent proceedings otherwise recognized by this Court, and there is every practical reason for denying it such recognition.

We hold, accordingly, that the mere circumstance of a pre-indictment motion does not transmute the ensuing eviden-tiary ruling into an independent proceeding begetting finality even for purposes of appealability.

Id. at 129, 131 , 82 S.Ct. at 659-660 (my emphasis).

The purposes underlying the jurisdictional requirement of finality, embodied in 28 U.S.C. § 1291 , are to promote effective and efficient judicial administration and to encourage the just and speedy resolution of legal controversies. Cobbiedick v. United States, supra, 309 U.S. at 325 , 60 S.Ct. 540 ; Bachowski v. Usery, 545 F.2d 363, 369 (3d Cir. 1976). To effectuate this policy, § 1291 prevents piecemeal review of “what for practical purposes is a single controversy”; the intent of the rule is to unify review of the entire case in a single appeal. Cobbiedick v. United States, supra, 309 U.S. at 325 , 60 S.Ct. at 541 . The Supreme Court continues to reiterate its disfavor of interlocutory appeals, viewing finality of judgment as an essential predicate for federal appellate jurisdiction. United States v. MacDonald, 435 U.S. 850, 853 , 98 S.Ct. 1547, 56 , L.Ed.2d 18 (1978); Abney v. United States, 431 U.S. 651, 656 , 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977). The rule of finality avoids “the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment.” Cobbiedick, supra, 309 U.S. at 325 , 60 S.Ct. at 541 .

Courts have often noted that § 1291 is to be given a “practical rather than a technical construction.” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949). This statement is the basis of the government’s first argument, anchored tightly on In re Grand Jury Proceedings (U.S. Steel-Clairton Works), 525 F.2d 151 (3d Cir. 1975). I think the holding of that case, however, undermines rather than supports a determination of appealability in the present case. U.S. Steel-Clairton Works involved a district court order indefinitely staying grand jury proceedings pending the completion of related litigation in the state courts. We held the order appealable under § 1291 essentially for the reason that the indefinite stay of the grand jury proceedings had the practical effect of dismissing the proceedings since it was likely that the grand jury’s term would expire before the stay was lifted. Id. at 155-56.

By contrast, there has been no such practical final disposition of the present case. That the government may not have access to the interview memoranda requested in the subpoena duces tecum does not affect the entire grand jury proceeding the way the U.S. Steel-Clairton Works order did. As the majority opinion makes clear, Sun has produced all the documents requested by the government except the memoranda which Sun claims are privileged. The quashing of the subpoena here does not block even “a significant portion” of the grand jury proceedings, as the government argues, because the government has not been denied access to the individuals whose interviews with the Pepper firm are the subject of the memoranda in controversy. In fact, Sun has made available to the government the names and addresses of all the persons interviewed by Pepper and has offered to help contact them. The government may acquire the same information contained in the privileged memoranda by *1240 questioning these persons before the grand jury.

The government’s other § 1291 appeala-bility argument is that it has no recourse to what it claims is the traditional avenue of appellate review in cases such as this because, unlike a party whose motion to quash a grand jury subpoena is denied, the government cannot resist the district court’s order and submit to a possible adjudication of contempt. The inability to invoke contempt proceedings and thereby gain indirect review of what cannot be reviewed directly is not a sufficient reason, in itself, to find that the district court’s order is appealable under § 1291. This identical argument, apparently accepted in Colucci and, of course, by the majority here, was specifically rejected by the Supreme Court in DiBella v. United States, supra:

Nor are the considerations against ap-pealability made less compelling as to orders granting motions to suppress, by the fact that the Government has no later right to appeal when and if the loss of evidence forces dismissal of its case. . . . [T]he Government is no more disadvantaged than in the case of an adverse ruling on the evidence during trial. . . . What disadvantage there be springs from the historic policy, over and above the constitutional protection against double jeopardy, that denies the Government the right of appeal in criminal cases save as expressly authorized by statute. . No such expression appears in 28 U.S.C. § 1291 , and the Government’s only right of appeal; given by the Criminal Appeals Act of 1907, 34 Stat. 1246 , now 18 U.S.C. § 3731 , [ 18 U.S.C.A. § 3731 ] is confined to narrowly defined situations not relevant to our problem. Allowance of any further right must be sought from Congress and not this Court.

369 U.S. at 130 , 82 S.Ct. at 659-660 (citations omitted).

Where the recipient of a grand jury subpoena has sought appellate review of an adverse district court order to quash, the Supreme Court, in denying appellate review, has recognized that the same policies of safeguarding against undue interruption and obstruction that preclude interlocutory appeals during trials apply equally to grand jury proceedings:

The Constitution itself makes the grand jury a part of the judicial process. It must initiate prosecution for the most important federal crimes. It does so under general instructions from the court to which it is attached and to which, from time to time, it reports its findings. The proceeding before a grand jury constitutes “a judicial inquiry,” ... of the most ancient lineage. . . . The duration of its life, frequently short, is limited by statute. It is no less important to safeguard against undue interruption the inquiry instituted by a grand jury than to protect from delay the progress of the trial after an indictment has been found. Opportunity for obstructing the “orderly progress” of investigation should no more be encouraged in one case than in the other. That a grand jury proceeding has no defined litigants and that none may emerge from it, is irrelevant to the issue. . . . Whatever right [the witness] may have requires no further protection in either case than that afforded by the district court until the witness chooses to disobey and is committed for contempt. ... At that point, the witness’ situation becomes so severed from the main proceeding as to permit an appeal. To be sure, this too may involve an interruption of the trial or of the investigation. But not to allow this interruption would forever preclude review of the witness’ claim, for his alternatives are to abandon the claim or languish in jail.

Cobbledick, supra, 309 U.S. at 327-28 , 60 S.Ct. at 542 (citations omitted).

Denial of review of orders refusing to quash subpoenas is not founded upon the possibility of reviewing subsequent contempt proceedings but upon the more fundamental ground that they are not final orders. That a contempt proceeding is reviewable is due to its independent, separate nature. If an individual has refused to *1241 comply with the subpoena and is punished for contempt, the whole character of the ease has changed. The proceeding has become personal to him rather than retaining its general investigative nature. See id. at 327 , 60 S.Ct. 540 . That the claim involved in a contempt decision is one of personal privilege adds a constitutional dimension of some import.

The Supreme Court has allowed exception to the rule that one who is denied his request to have a subpoena quashed must produce the desired information or resist the order and face the possibility of contempt charges “in the limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual’s claims.” United States v. Ryan, supra, 402 U.S. at 533 , 91 S.Ct. at 1582 (my emphasis). Thus, “review is available immediately of a denial of a motion for the return of seized property, where there is no criminal prosecution pending against the movant” because “[djenial of review in such circumstances would mean that the Government might indefinitely retain the property without any opportunity for the movant to assert on appeal his right to possession.” Id. Similarly, the Supreme Court has

allowed immediate review of an order directing a third party to produce exhibits which were the property of appellant and, he claimed, immune from production. To have denied review would have left [the appellant] ‘powerless to avert the mischief of the order’ . . . for the custodian could hardly have been expected to risk a citation for contempt in order to secure [the appellant] an opportunity for judicial review.

Id. (citation omitted).

This court has recognized that “[e]very interlocutory order involves, to some degree, a potential loss,” but that this risk “must be balanced against the need for efficient federal judicial administration.” Borden Co. v. Sylk, 410 F.2d 843, 846 (3d Cir. 1969). When a district court ruling is adverse to the government and the government is the party seeking review, however, there is no constitutional right or other important privilege at stake. Cf. United States v. Ryan, supra, 402 U.S. at 533 , 91 S.Ct. 1580 . It may be important to interrupt judicial proceedings for appeal if a claim of privilege or constitutional right will not otherwise receive review. In the present case, however, as the Supreme Court held in DiBella , the public interest does not weigh heavily enough on the government’s side to overcome the policy against piecemeal review.

Of the considerations that compete in the question of appealability the Supreme Court has said that the most important are “the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.” Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511 , 70 S.Ct. 322, 324 , 94 L.Ed. 299 (1950) (footnote omitted). As noted in Bachowski v. Usery, supra, 545 F.2d at 371 , this court has taken a strong stand on the importance of finality in promoting judicial efficiency and “has frowned upon expansive judge-made exceptions to the final judgment rule” and been reluctant “to inflate the boundaries of section 1291.” We have recognized that the strong policies underlying finality may be counter-balanced, but not outweighed, by the costs of imposing the rule denying immediate review. Those costs may include the possible permanent foreclosure of all opportunity for review, the possible infliction of irreparable harm on the aggrieved party, and the possibility of a net waste of effort and delay.

This case is not one which requires immediate review. It is precisely the type of case in which immediate review inhibits the smooth flow of the judicial process, increases the burden on the appellate court, and leaves open an opportunity for delay and harassment. If the government were able to appeal every decision quashing a subpoena issued during a grand jury investigation, the grand jury process could be seriously abused. The opportunity for harassment would increase as individuals under investigation would be left in uncertainty, pending a government appeal, as to whether they *1242 must testify or produce documents. Orders granting or quashing grand jury subpoenas are analogous to orders compelling or denying discovery which “bespeak their own interlocutory character” and are rarely ap-pealable. Borden Co. v. Sylk, supra, 410 F.2d at 845 . In essence, the government can use the grand jury investigation to discover evidence that it might use in a subsequent criminal proceeding. If discovery orders are interlocutory, so is this one.

In contrast with the important interests which would be advanced by denial of review in this case, the costs would be miniscule. First, as noted, the order did not have the practical effect of concluding the grand jury proceedings and review is not permanently foreclosed because the issue may arise again at a later stage if the case proceeds to trial. There should have been no significant disruption of the investigation because the government was, and is, free to interview the witnesses independently. Whatever minor inconvenience might have been caused the government, the additional effort required is far from sufficient to counterbalance the rule of finality.

Nor does this case fall under the “collateral order doctrine” announced in Cohen v. Beneficial Industrial Loan Corp., supra. In Rodgers v. U. S. Steel Corp., 508 F.2d 152 (3d Cir.), cert. denied, 423 U.S. 832 , 96 S.Ct. 54 , 46 L.Ed.2d 50 (1975), this court interpreted Cohen as requiring three elements: “The order must be a final rather than a provisional disposition of an issue; it must not be merely a step toward final disposition of the merits; and the rights asserted would be irreparably lost if review is postponed until final judgment.” Id. at 159. See also Coopers & Lybrand v. Livesay, 437 U.S. 463, 468-69 , 98 S.Ct. 2454 , 57 L.Ed.2d 351 (1978). On the basis of the third element alone, this case is clearly outside the Cohen precept. It is impossible to say that any rights are irretrievably lost; the government is free to gather the same information by questioning the same persons interviewed by Pepper. Moreover, the underlying issue is not an independent question of law but is intertwined with the very substance of the investigation. See Borden Co. v. Sylk, supra. The government itself has asserted that the reason it wants the attorneys’ memoranda is to determine whether Sun has been involved in a coverup which might involve the very statements made to the attorneys.

Finally, neither the court’s view of the expediency of immediate review, nor the topicality or significance of the underlying issues may be allowed to expand our appellate jurisdiction under § 1291. Judge Adams warned against this temptation in Bachowski v. Usery, supra:

This case provides ample illustration of the proposition that application of the final order doctrine is often made with considerable diffidence. The substance of the dispute here is highly significant, and immediate resolution would clarify an important aspect of federal law as well as possibly terminating a lengthy controversy. However, the wisdom of the final judgment rule lies in its insistence that we focus on systemic, as well as particularistic impacts. The appellate system has become increasingly overburdened and the future would appear to promise no relief from the continuous increase in case loads. Accordingly, it would seem to us to be a disservice to the Court, to litigants in general and to the idea of speedy justice if we were to succumb to enticing suggestions to abandon the deeply-held distaste for piecemeal litigation in every instance of temptation. Moreover, to find appealability in those close cases where the merits of the dispute may attract the deep interest of the court would lead, eventually, to a lack of principled adjudication or perhaps the ultimate devitalization of the finality rule as enacted by Congress.

545 F.2d at 373-74 .

The finality rule embodied in § 1291 must be applied in accordance with the foregoing precepts. Proper application within both the spirit and the letter of these precepts mandates the conclusion that the order appealed from is not a final judgment. If *1243 there be any comfort to the government’s position, therefore, it must be found in § 3731, 3 the Congressional response in 1971 to the 1962 invitation of the Supreme Court in DiBella .

II.

The government argues that because the district court’s order was one excluding evidence, it may appeal therefrom on the basis of 18 U.S.C. § 3731 . This statute explicitly provides that the evidence must be excluded in “a criminal proceeding” and that “the evidence [must be] a substantial proof of a fact material in the proceeding.” I recognize that grand jury proceedings are hybrid in character, partaking of the nature of both civil and criminal actions and lacking certain characteristics of each. For the purposes of this statute, however, I would hold that the investigation is not a criminal proceeding and that § 3731 provides the government no right to appeal in this case.

I believe a grand jury investigation is more accurately viewed as a prelude to a criminal proceeding than a part of it. Support for this view can be found in the teachers of the Supreme Court which refuse to afford to grand jury witnesses the constitutional protections commonplace in criminal proceedings. Thus, in United States v. Calandra, 414 U.S. 338 , 94 S.Ct. 613 , 38 L.Ed.2d 561 (1974), the Court noted:

The scope of the grand jury’s powers reflects its special role in insuring fair and effective law enforcement. A grand jury proceeding is not an adversary hearing in which the guilt or innocence of the accused is adjudicated. Rather, it is an ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person.

Id. at 343-44 , 94 S.Ct. at 617-618 (my emphasis).

The issue in Calandra was whether the exclusionary rule, under which “evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure,” applied in grand jury proceedings. 414 U.S. at 347 , 94 S.Ct. at 619 . The Court’s refusal to apply the rule, stating that it “has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons,” id. at 348 , 94 S.Ct. at 620 , is, in my view, tantamount to a determination that a grand jury investigation is not a criminal proceeding.

Constitutionally protected rights guaranteed to defendants in criminal trials have been denied the subjects of grand jury investigations. In United States v. Mandujano, 425 U.S. 564 , 96 S.Ct. 1768 , 48 L.Ed.2d 212 (1976), the plurality concluded that Miranda warnings need not be given to a grand jury witness called to testify about criminal activities in which he may have been personally involved. Chief Justice Burger’s plurality opinion also stated that the Sixth Amendment right to counsel is not guaranteed at grand jury investigations:

Respondent was also informed that if he desired he could have assistance of counsel, but that counsel could not be inside the grand jury room. That statement was plainly a correct recital of the law. No criminal proceedings had been instituted against respondent, hence the Sixth Amendment right to counsel had not come into play. Kirby v. Illinois, 406 U.S. 682 , [ 92 S.Ct. 1877 , 32 L.Ed.2d 411 ] (1972).

425 U.S. at 581 , 96 S.Ct. at 1779 (my emphasis).

Kirby v. Illinois, 406 U.S. 682 , 92 S.Ct. 1877 , 32 L.Ed.2d 411 (1972), determined that an accused is not entitled to counsel at an identification in a police station after arrest but prior to any formal charge, preliminary hearing, indictment, information or arraignment. The Court described what is entailed in the initiation of criminal proceedings:

*1244 The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the “criminal prosecutions” to which alone the explicit guarantees of the Sixth Amendment are applicable.

Id. at 689-90 , 92 S.Ct. at 1882 (footnote and citations omitted). It can hardly be said that at the grand jury investigation stage “the government has committed itself to prosecute” or that “the adverse positions of government and defendant have solidified.”

The implicit message of decisions by two other courts of appeals strongly supports this position. Both involved review of district court orders pertaining to ongoing grand jury proceedings and both held that there was no appellate jurisdiction under 28 U.S.C. § 1291 because the challenged orders were not final. The rationale of both courts was based in part on the appellants’ failure to seek certification of the non-final orders under 28 U.S.C. § 1292 (b), which is applicable only “in a civil action.” In re Doe, 546 F.2d 498 (2d Cir. 1976), dismissed the appeal of grand jury targets from a district court order denying their motion to enjoin the grand jury from investigating them for possible criminal violations of the Internal Revenue Code. But the court never considered the grand jury investigation to be anything but a civil proceeding. The only reason the district court order was not appealable under § 1292(b) was the absence of an accompanying certification from the district judge as to the controlling question of law to be appealed. Id. at 501-02.

More recently, the First Circuit dismissed the government’s appeal from the denial of a Fed.R.Crim.P. 6(e) disclosure petition. In stating why the Cohen collateral order precept was not available, the court was of the view that the government had several alternative means of avoiding an irretrievable loss of rights in the absence of immediate appeal: “[T]he Government could either have sought the cooperation of the district court in certifying this question under § 1292(b), or if it felt that circumstances warranted, go into contempt in order to obtain appellate review.” In re Grand Jury Proceedings, 580 F.2d 13, 17 (1st Cir. 1978). Again, because § 1292(b) applies only “in a civil action,” fundamental to the reasoning of the First Circuit, like the Second Circuit in In re Doe, was an implicit determination that grand jury proceedings were civil, not criminal, proceedings. 4

*1245 The government simply cannot have it two ways — it cannot argue vociferously that a grand jury investigation is not a criminal proceeding when the constitutional rights' of witnesses are implicated, and then thunder just as stridently that the investigation is a criminal proceeding when the question of its right to appeal is at stake. No court should accept such sophistry.

III.

Although Colucci was the first decision by our court on this subject, the majority makes the generous statement that “we recently settled this question” of appealability in that single case. Trained in the common law tradition, I do not subscribe to the notion that a single case ever “settles” the law. A single case may serve as a precedent — a legal precept attaching a detailed legal consequence to the detailed set of facts of an adjudged ease which is then considered as furnishing the rule for the determination of a subsequent case containing material facts identical or similar to those in the adjudged case, arising in the same court, or a lower court in the judicial hierarchy. 5

To rely on a case as persuasive or controlling precedent, the court must first extract the rule from the putative precedent. A rule is a normative legal precept containing both specific facts and a specific result, the legal result depending upon the establishment of certain facts stipulated or found in the antecedent part of the rule. Since a precedent’s force resides in the rule of law it expresses, that force must be measured by precise facts which gave rise to the rule. “Two cases or decisions which are alike in all material respects, and precisely similar in all the circumstances affecting their determination, are said to be or to run ‘on all fours’ with each other, or, in the more ancient language of the law, the one is said to ‘run upon four feet’ with the other.” 6 But identity is not a requirement; indeed, the reality is that fact complexes seldom repeat themselves exactly. Thus, the force of a precedent depends upon both the reason supporting the rule of the case and the material facts giving rise to it.

Professor Edward H. Levi has carefully and clearly identified the three steps involved in the doctrine of precedent: “similarity is seen between cases; next the rule of law inherent in the first case is announced; then the rule of law is made applicable to the second case.” 7 The determination of similarity vel non between the cases is crucial, for “the scope of a rule of law, and therefore its meaning, depends upon a determination of what facts will be considered similar to those present when the rule was first announced. The finding of similarity or difference is the key step in the legal process.” 8

Thus, even assuming the viability of Co-lucci’s interpretation of § 3731 on the basis of the facts of that case — a subpoena duces *1246 tecum directed to a third party custodian of business records — those facts, in my view, are not substantially similar to the facts at bar. Arguably, the records there sought to be seized could qualify under the statutory description of evidence that is “a substantial proof of a fact material in the proceeding.” Here, the evidence sought by the subpoena duces tecum constituted questionnaires and interview memoranda prepared by counsel. As set forth in Part I, the government 'had knowledge of the specific names and addresses of those questioned and interviewed by the Pepper law firm. In this case the evidence sought is at best secondary and insubstantial, yet primary, and therefore substantial, evidence is available; I therefore fail to see how the production of questionnaires and interviews qualifies under the statutory description “that the evidence is a substantial proof of a fact material in the proceeding.” A fortiori, when access to the evidence is denied on the basis of the attorney work product principle, as the majority holds, such evidence clearly does not qualify as “proof,” as contemplated by Congress in its 1971 formulation of § 3731. In my view an appealability determination under this statute requires a careful consideration of the quality of the suppressed evidence, even if subsequent consideration of the merits would track part of the same inquiry.

Because such a careful examination of the quality of the evidence is central to the question of appealability under § 3731, I cannot accept the majority’s characterization of the sophisticated appealability issue presented in this case as “recently settled.” Roscoe Pound warned against hasty generalization:

You cannot frame a principle with any assurance on the basis of a single case. It takes a long, process of what Mr. Justice Miller used to call judicial inclusion and exclusion to justify you in being certain that you have hold of something so general, so universal, so capable of dealing with questions of that type that you can say here is an authoritative starting point for legal reasoning in all analogous cases.

A single decision as an analogy, as a starting point to develop a principle, is a very different thing from the decision on a particular state of facts which announces a rule. When the court has that same state of facts before it, unless there is some very controlling reason, it is expected to adhere to the former decision. But when it [goes] further and endeavors to formulate a principle, stare decisis does not mean that the first tentative gropings for the principle, what is said in the course of development of the principle by this process of judicial inclusion and exclusion are of binding authority. 9

IV.

For all the foregoing reasons, I would hold that the district court’s order was not a final judgment under § 1291, nor was it the type of order for which an appeal lies under § 3731, and that this court therefore lacks subject matter jurisdiction to consider the merits of the government’s appeal. I would dismiss the appeal for want of jurisdiction, and assess costs on the appellant.

. 18 U.S.C. § 3731 , as amended Jan. 2, 1971, provides:

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.

The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.

Pending the prosecution and determination of the appeal in the foregoing instances, the defendant shall be released in accordance with chapter 207 of this title.

The provisions of this section shall be liberally construed to effectuate its purposes.

. Indicative of the government’s initial assessment of its right to appeal under § 3731 is the fact that the statutorily required certification by the U.S. Attorney was first filed on April 9, 1979, after oral argument had already been heard in this case.

. At least one other circuit, the Seventh, has held that district court orders in the course of grand jury proceedings are appealable only if they fall within the collateral order exception to the final judgment rule. In re Special February 1977 Grand Jury, 581 F.2d 1262, 1263 (7th Cir. 1978).

. Although the Coiucci opinion quoted from the Senate Report on the 1971 amendments to the Criminal Appeals Act ( 18 U.S.C. § 3731 ), the legislative history really does not address the issue of the appealability of an order quashing a subpoena duces tecum in the course of a grand jury investigation. The scope of the 1970 amendment was summarized as follows:

It is the purpose of this bill to resolve serious problems which frequently have arisen with respect to the right of the United States to appeal rulings which terminate prosecutions other than by judgment of acquittal, or which grant motions to suppress evidence before trial or in subsequent proceedings ancillary to the trial.

The bill furthers that purpose by making four principal changes in the present Criminal Appeals Act (18 U.S.C. 3731).

First, it eliminates technical and outmoded distinctions in pleadings as limitations on appeals by the United States. In their place, it confers a right to appeal any decision terminating a prosecution except an acquittal.

Second, it makes the Government’s right to appeal an order suppressing evidence applicable to all criminal proceedings, including probation revocation hearings, not merely to pretrial suppressions. It continues, however, to deny authority for appeals from suppression orders made during trial of indictments and informations.

Third, it requires that all appeals by the United States be taken to courts of appeals, except that an appeal from a decision based at least in part on a determination of the invalidity of an act of Congress may, upon a district court order or the Attorney General’s certification for that purpose, be taken to the Supreme Court, which then may decide the case or remand it to the court of appeals.

*1245 Fourth, it provides for liberal construction of the Criminal Appeals Act.

S.Rep.No.1296, 91st Cong., 2d Sess. 2 (1970).

The amendments were meant to deal with three problems identified with the old § 3731: (1) the act failed to provide for any appeal by the government from many frequently encountered types of dismissals, and from some improper orders suppressing evidence, (2) the act required that an appeal in many cases be taken directly to the Supreme Court, and (3) an ambiguity and absence of settled meaning surrounding many of the statute’s existing provisions resulted in a considerable and needless expenditure of prosecutorial and judicial resources. Id. at 2-3.

Even though the act expressly liberalizes the government’s right to appeal, the legislative history only speaks in terms of assuring “that the United States may appeal from the dismissal of a criminal prosecution by a district court in all cases where the Constitution permits.” Id. (my emphasis).

. See, inter alia, observations of Henry Campbell Black, Sir William Blackstone, John Hanna, Roscoe Pound, Richard A. Wasserstrom, Rupert Cross, Herman Oliphant and Thomas S. Currier, collected in Anatomy of Precedent in R. Aldisert, The Judicial Process 777-801 (1976).

. H. Black, The Law of Judicial Precedents 61 (1912).

. Levi, An Introduction to Legal Reasoning, 15 U.Chi.L.Rev. 501, 501-02 (1948).

. Id. at 502.

. Pound, Survey of Conference Problems, 14 U.Cin.L.Rev. 324, 330-31 (1940). Professor Joseph Raz has said, “A court can establish a new rule in a single judgment which becomes a precedent. Principles are not made into law by a single judgment; they evolve rather like a custom and are binding only if they have considerable authoritative support in a line of judgments.” Raz, Legal Principles and the Limits of Law, 81 Yale L.J. 823 , 848 (1972). See also Aldisert, Opinion Writers and Law Review Writers: A Community and Continuity of Approach, 16 Duq.L.Rev. 139, 144-46 (1977-1978).