Petition — Garner v. United States

ot, | | Supreme Court, U.S,

FILED

SOQ=-7 197) san 16 198;

a

“MHOMRETRODAK, JR. CLERK

Supreme Court of the United States

October Term, 1980

UNITED STATES OF AMERICA,

Plaintiff/Respondent,

vs.

ROY DALTON GARNER,

Defendant /Petitioner.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BURTON MARKS

9911 West Pico Boulevard, Suite 1000

Los Angeles, California 90035

Telephone - (213) 553-0142

Attorney for Petitioner

Dean-Standefer, 326% Main St., Huntington Beach, Ca. 92648 - (714) 536-7161

i

QUESTION PRESENTED

Whether Title 28 U.S.C. § 1291 confers jurisdiction

on an appellate court to hear a pretrial appeal brought

from an order of a trial court denying (without hearing)

a motion to dismiss an indictment for jurisdictional defects

in the grand jury proceedings.

BS deeaess

SUPREME COURT OF THE UNITED STATES

* October Term, 1980

UNITED STATES OF AMERICA,

Plaintiff/Respondent,

vs.

ROY DALTON GARNER,

Defendant /Petitioner.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IThe indictment returned by the Grand Jury for the District of Nevada

charged Roy Garner, Sherman Dennis and Rowena Gamer with the

crimes of wire fraud (18 U.S.C. § 1343) and interstaet travel in further-

ance of an unlawful activity (18 U.S.C. §§ 1952 and 2314). Petitioner's

pretrial appeal was taken from orders of the trial court as hereinafter

ae and he was severed from the remaining defendants. Rowena

arner also filed a pretrial ag and, after her trial and conviction,

filed a direct appeal. Originally, the pretrial appeals of Roy and Rowena

Garner were consolidated for argument, but on July 30, 1980, the Court

of Appeals issued an order consolidating Rowena's pretrial appeal with

her direct appeal. As of January 1, 1981, neither of Rowena’'s appeals

have been scheduled for oral argument in the Court of Appeals. (See

n. 2, infra, and Appendix ''D"' at appendix p. 22.) Sherman Dennis was

given immunity and testified for the government.

iii

TABLE OF CONTENTS

Page

a Pe. ns ve OR RES oe we ee i

7 Caption of the Case (indicating all parties

interested in the outcome of the

proceedings - S. Ct. Rule 21.1(b)) ........ ii

' Se a in 68 ee aes Cesc. ii

TROREDE AUTROITIE CAINE ok ik ecerserswesens iV

Petition for Writ of Certiorari to the

United States Court of Appeals For the

FORGE See ea vd GOs 6s co eek ee eds |

Petitioner prays for writ of certiorari ...... l

did s sh Sake Wane < dene 2

Csrounds for Juriediction § .....css.ccccees 2

Applicable Constitutional Provisions

a Pe, eel Car bi eer hiss eon ans 3

Statement of the Case .......ccccecssees 3

RS ray clas. ck paren gba keke ee 6

SE Sat sa cons ce Wie eo ewe kee ee 7

sf Index to Appendixes

Appendix “‘A”’ through “‘D”’

iv

TABLE OF AUTHORITIES CITED

Cases Page

Abney v. United States, 431 U.S. 651 (1977) .... 6, 7

Dombrowski v. Eastland, 387 U.S. 82 (1967) .... 7

Helstoski v. Meanor, 442 U.S. 500(1979) ...... 6,7

Petite v. United States, 361 U.S.529(1960) .... 2,4

United States v. Alter, 482 F.2d 1016(1971) .... 5

United States Constitution

EE Fs CRO Tes ha has bea es Wied Ay

United States Statutes

Pe RE st ce a oes KK ee ah oe beh is

SP BPE so vase NW eee andere pee ees i, 3

gp fp | Se ey ere eer ere ee 2

ee ts SERED. eae sent eb ekki oan eeee eas 2

I er ere aw er rere ee ee & a, 43,8

- Federal Rules of Criminal Procedure

IN rw eae acces a dal ka die ae ee ke eS 5

DUS icticaas

SUPREME COURT OF THE UNITED STATES

October Term, 1980

; UNITED STATES OF AMERICA,

Plaintiff/Respondent,

vs.

ROY DALTON GARNER,

Defendant/Petitioner.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

This is a petition of ROY DALTON GARNER for a

Writ of Certiorari to review the order made by the United

States Court of Appeals for the Ninth Circuit on October 6,

1980, dismissing a portion of petitioner’s pretrial appeal; and

to review the order of the appellate court entered November

19, 1980, denying petitioner’s Petition for Rehearing and

Suggestion for Rehearing En Banc.

this

OPINIONS BELOW

The opinion of the Court of Appeals filed October 6,

1980 (United States v. Garner, USCA No. 79-1802) has

not yet been reported. A copy of that opinion is provided

herewitn in the appendix to this petition (Appendix “A” -

appendix pp. | - 19), as is a copy of the order of November

19, 1980, denying the Petition for Rehearing and Suggestion

for Rehearing En Banc (Appendix “B” - appendix p. 20).

GROUNDS FOR JURISDICTION

1. On October 6, 1980 the Court of Appeals for the

Ninth Circuit, in United States v. Roy Dalton Garner (No.

79-1802), affirmed the order of the trial court denying peti-

tioner’s motion to dismiss the indictment on the ground of

double jeopardy. Additionally, the court dismissed that por-

tion of the appeal taken from the trial court’s order denying

the motion to dismiss the indictment for violation of the so-

called “‘Petite Policy” (Petite v. United States (1960), 361

U.S. 529), and also dismissed the portion of the appeal taken

from the order of the trial court denying the motion to dis-

miss the indictment for jurisdictional irregularities in the

grand jury proceedings, on the ground, inter alia, that these

latter two orders of the trial court were not “final decisions”

under 28 U.S.C. § 1291 and that “‘these claims may be assert-

ed if the appellant is subsequently convicted.”’ (Appendix ‘‘A’’.)

2. On November 19, 1980, a Petition for Rehearing

and Suggestion for Rehearing En Banc was ordered denied

(Appendix “‘B’’).

3. On December 17, 1980, the mandate was ordered

aa

stayed until January 19, 1981, for the purpose of allow-

ing petitioner to bring this petition (Appendix “‘C”’ - appen-

dix p. 21).

4. Jurisdiction is conferred on this Court by virtue

of 28 U.S.C. 8 1254(1).

APPLICABLE CONSTITUTIONAL PROVISIONS

AND STATUTES

United States Constitution, Amendment V (in part):

“No person shall be held to answer for

a capital, or otherwise infamous crime, unless

on a presentment or indictment of a grand

ea

28 U.S.C. 81291:

“The Courts of Appeals shall have juris-

diction from all final decisions of the District

Courts of the United States.”

STATEMENT OF THE CASE

1. On April 26, 1979, a seven-count indictment

was returned by the United States Grand Jury for the

District of Nevada, charging ROY GARNER, Sherman

Dennis and Rowena Garner with the crimes of wire fraud

in violation of 18 U.S.C. § 1343 and interstate travel in

furtherance of an unlawful activity in violation of 18 U.S.C.

88 1952 and 2314.

2. OnJuly 20, 1979, ROY GARNER moved to

pe WN

dismiss the indictment on the ground, inter alia, that

the prosecution violated the Petite policy. That motion

was denied by the District Court on August 9, 1979.

3. On August 9, 1979, ROY GARNER moved to

dismiss the indictment on the ground that he had been

formerly in jeopardy for the offense of wire fraud as

alleged in the indictment. That motion was denied by

the District Court.

4. On November 6, 1979, ROY GARNER moved

to dismiss the indictment for grand jury irregularities.

That motion was denied, without hearing, by the District

Court.

5. Petitioner’s pretrial appeal was taken from the

orders of the trial court above described, and he was

severed from the remaining defendants. The defendant

Rowena Garner proceeded to trial and was convicted.”

The third defendant, Sherman Dennis, was given immun-

ity and testified for the government at Rowena’s trial.

6. On appeal, the denial of the double jeopardy

claim was affirmed. The “grand jury irregularities’ and

the “Petite policy” appeals were dismissed on the ground

that these trial court orders were not “final decisions” and

the appellate court was without jurisdiction under 28 U.S.C.

2With the exception of the Double Jeopardy" motion, co-defendant

Rowena Garner made identical — motions as brought by —

and described herein. She also filed a pretrial Notice of Appeal, but

the trial court proceeded to trial in the face of jurisdictional objections.

(Pretrial appeal Ninth Circuit No. 79-1805.) Originally, the pretrial

appeals of Roy and Rowena Garner were consolidated for argument.

Just prior to the date for oral argument, the Court of Appeals issued

an order consolidating her pretrial appeal with her direct appeal (Ninth

Circuit No. 80-1147). (See Appendix ''D'' - appendix p. 22.) As of

January 1, 1981, neither of these appeals have been scheduled for oral

argument.

Bae

8 1291, the court further holding that “‘these claims may

be asserted if the appellant is subsequently convicted”

(appendix p. 19).

In the proceedings brought challenging the indict-

ment for grand jury irregularities, petitioner contended

that a sufficient number of grand jurors had not heard

the evidence upon wich the indictment had been brought

and requested production of the records of the number of

jurors concurring in the finding of the indictment required

to be kept pursuant to Rule 6(c), Federal Rules of Criminal

Procedure. The District Court made an order requiring the

disclosure of dates on which the grand jury considered the

case below. The records which were produced by the gov-

ernment showed that at least two different grand juries

subpoenaed witnesses in conjunction with the case, on

several dates between January, 1975 and April 26, 1979

(the date the indictment was returned). Also produced

was a transcript of the April 26, 1979 grand jury proceed-

ing and internal evidence from that transcript indicated

that the new grand jurors had been supplied transcripts

of prior proceedings but had not examined the contents

of these transcripts. Thus, a prima facie showing was made

that a majority of grand jurors voting to return the indict-

ment did not hear any evidence in support of the indictment.

What was not made available, and which the trial court

declined to order, was a “record of the number of jurors

concurring in the finding of . . . [the] . . . indictment.” 3

3in 1971, the Ninth Circuit, in United States v. Alter, 482 F.2d 1016,

1029, n. 21, had held that" . . . the proceedings before the grand

jury are secret, but the ground rules by which the grand jury conducts

those proceedings are not."

‘dle

Since the Court of Appeals declined to hear the

appeal on the ground of grand jury irregularities, the sub-

issues presented to them, that is to say, the error of the

trial court in failing to order proper discovery, and failing

to hold a hearing, and erroneously denying the motion to

quash the indictment based upon the evidence which was

produced, was never passed upon.

ARGUMENT

This Court, in Abney v. United States, 431 U.S.

651 (1977), held that a pretrial order rejecting a claim

of former jeopardy was a “final decision” satisfying the

jurisdictional prerequisite of 28 U.S.C. § 1291.

Again in Helstoski v. Meanor, 442 U.S. 500, 506

(1979), this Court, in holding that former Congressman

Helstoski had a pretrial appeal rather than a mandamus

remedy, noted the reasons that such a pretrial appeal

was available and quoted the language of Abney as “‘parti-

cularly apt, ever though the context was the Double Jeo-

pardy Clause”’:

“There can be no doubt that such orders

constitute a complete, formal and, in the trial

court, a final rejection of a criminal defendant’s

double jeopardy claim. There are simply no

further steps that can be taken in the District

Court to avoid the trial the defendant maintains

is barred by the Fifth Amendment’s guarantee.”

(Abney at 659.)

In the instant case, if the requisite number of grand

jurors did not hear any evidence, then there was a failure

Be

of compliance with the Fifth Amendment mandate that

a federal prosecution of this nature be brought by a grand

jury indictment or presentment. It is as if no indictment

had been brought at all.

The characterization of the purpose of the Double

Jeopardy Clause (in Abney) “‘echoed this Court’s state-

ment in Dombrowski v. Eastland, 387 U.S. 82, 85 (1967),

that the Speech or Debate Clause was designed to protect

Congressmen ‘not only from the consequences of litigation’s

results but also from the burden of defending themselves’

.... ” (Aelstoski at 508.)

There is no perceivable difference between bringing an

indictment in violation of the “Double Jeopardy” Clause,

the “Speech and Debate”’ Clause, or the “Indictment” Clause

itself. The Court of Appeals erred in holding that the trial

court’s order was not a “final decision.”” To paraphrase this

Court: “By analogy, if a defendant ‘is to avoid exposure to

[the criminal law process] , and thereby enjoy the full pro-

tection of the [“‘Indictment”’] Clause, his . . . challenge

to the indictment must be reviewable before . . . exposure

[to trial] occurs.” (Helstoski, supra, at 509, paraphrasing

Abney, supra, at 662.)

CONCLUSION

Certiorari should be granted and the matter remanded

to the court with directions to set aside its orders dismissing

the appeal and to consider the appeal of petitioner on its

merits.

Respectfully submitted,

BURTON MARKS

Attorney for Petitioner

INDEX TO APPENDIXES

” & Opinion of the Court of Appeals

for the Ninth Circuit filed October

i 66k 4 ows oe be eect es bee

“—_— Denial of Petition for Rehearing and

Suggestion for Rehearing En Banc

filed November 19, 1980 ............

a Minute Order granting stay of mandate

until January 19,1981 ............

_ Order consolidating pretrial appeal

(No. 79-1805) of ROWENA GARNER

with her direct appeal after conviction

DE MMERETE, shes ed bie deeeesanees

APPENDIX “A” 1.

OPINION OF THE COURT BELOW

In the United States Court of Appeals for the Ninth

Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

vs. ROY DALTON GARNER, Defendant-Appellant.

NO. 79-1802.

D. C. NO. CR-R—79-17-ECR.

[FILED OCTOBER 6, 1980]

Appeal from the United States District Court

District of Nevada

Edward C. Reed, Jr., District Judge Presiding

Argued and Submitted August 11, 1980

Before: KILKENNY and FARRIS, Circuit Judges, and

BELLONI, District Judge.*

KILKENNY, Circuit Judge:

Appellant appeals from an order denying his motion to

dismiss a seven count federal grand jury indictment charging

him with: (1) violations of 18 U.S.C. § 1343 [fraud by wire] ;

(2) violations of 18 U.S.C. § 1952(a)(3) [interstate travel in

aid of racketeering enterprise and use of interstate facility in

the aid of a racketeering enterprise].

Appellant filed motions to dismiss the indictment on

*The Honorable Robert C. Belloni, United States District Judge for the District

of Oregon, sitting by designation.

Appendix y

three grounds: (a) the indictment violated Garner’s right

to be free from double jeopardy; (b) the indictment violated

the Department of Justice’s policy recognized in Petite v.

United States, 361 U.S. 529 (1960); and (c) there were irregu-

larities in the grand jury proceedings.

Briefly summarized the issues as outlined in the

various counts of the indictment are: (1) Count I charges

appellant and his accomplices with implementing a marked

card system to defraud Harrah’s Casino of substantial sums

of money, of transporting that money across state lines, and

using the telephone to make a call between Reno, Nevada,

and Oxnard, California, in aid of the scheme, all in violation

of the provisions of 18 U.S.C. §§ 1342 and 1343; (2) Counts

II, IV and VI charge appellant and his accomplices with

traveling and causing travel in interstate commerce on three

occasions to carry on a business activity unlawful under

Nevada law and in violation of 18 U.S.C. § 1952(a)(2) and (3);

(3) Counts III and V charge appellant with using the telephone

to make interstate calls in aid of racketeering in violation of

§ 8 1952(a)(2) and (3), and Count VII charges that one of

appellant’s accomplices transported stolen money in interstate

commerce in violation of 18 U.S.C. § 2314.

ISSUES

(1) Were the denials of the pretrial motions appeal-

able orders?

(2) Should the indictment be dismissed on double

jeopardy grounds?

(3) Whether the policy announced in Petite v. United

States, supra, requires a dismissal of the indictment.

Appendix 3

(4) Whether the district court erred in not ordering

disclosure of certain grand jury materials.

DOUBLE JEOPARDY CLAIM

Inasmuch as appellant has not been tried, our initial

question is whether the denials of his , retrial motions are

appealable orders. Generally speaking, such denials are not

final judgments which are appealable. United States v.

Griffin, 617 F.2d 1342 (CA9 1980). However, when a claim

of double jeopardy is made in a pretrial motion to dismiss,

the denial thereof is appealable. Abney v. United States,

431 U.S. 651 (1977); United States v. Solano, 605 F.2d

1141 (CA9 1979). Consequently, we are in a position to

respond to appellant’s double jeopardy claim. The claim,

in our opinion, is without merit.

To support this claim, the appellant relies on an earlier

trial and conviction in violation of 18 U.S.C. § 1343 [wire

fraud]. He had used what is known to the trade as a “blue

box”’ to enable him to place undetected long distance tele-

phone calls which defrauded the Nevada Bell Telephone

Company. Appellant argues that because his use of the

telephone on two occasions in aid of the scheme to defraud

Harrah’s, which is the basis of Counts III and V of the indict-

ment, also served to support his earlier “blue box” convic-

tion, his constitutional right not to be subject to double

jeopardy was violated. We disagree. His earlier conviction

was for defrauding the telephone company. Here he is

charged with an entirely different offense, using the tele-

phone in aid of the racketeering scheme. Although both

offenses undeniably involved common facts—the use of the

Appendix 4.

telephone—the appellant has not thereby established that

the rights conferred upon him by the double jeopardy clause

have been violated.

In Blockburger v. United States, 284 U.S. 299, 304

(1932), the Supreme Court stated that ““The applicable

rule is that where the same act or transaction constitutes

a violation of two distinct statutory provisions, the test

to be applied to determine whether there are two offenses

or only one, is whether each provision requires proof of a

fact which the other does not.” Surely this does not mean

that whenever there exist any common facts between the

facts supporting an earlier conviction and those which form

the basis for a subsequent prosecution the second prosecu-

‘ion is barred by the double jeopardy clause. See also,

United States v. Rone, 598 F.2d 564 (CA9 1979).

Under Counts III and V, brought under § 1952(a)(3),

the government must prove the use of the telephone with

the intent to aid an unlawful activity. The unlawful activity

involved herein is a business enterprise involving gambling

—i.e., the scheme to defraud Harrah’s Casino. Under § 1952

(a)(3) the government must clearly prove facts that were

unnecessary to support the earlier conviction. Under the

earlier 8 1343 charge the government was required to prove

the use of the telephone to aid a scheme to defraud the tele-

phone company. The use of the telephone for that purpose

was not necessary to sustain the § 1952(a)(3) conviction.

We conclude that there is no merit to appellant’s double

jeopardy claim.

Appendix a

JUSTICE DEPARTMENT POLICY

Appellant argues that he is entitled to the protection

of the Justice Department’s policy recognized in Petite. In

Petite, the Supreme Court, at the request of The Solicitor

General, remanded a case to the district court with instruc-

tions to dismiss the indictment on the ground that it was

the policy of the Justice Department not to prosecute a

federal case where there has been a state prosecution for

substantially the same act or acts unless, for compelling

federal interest, The Attorney General recommends prose-

cution. In the instant case, appellant had been indicted in

a Nevada state court for card cheating in violation of a

Nevada statute. This indictment was later dismissed.

Appellant argues that Petite requires the dismissal of the

present prosecution.

Appellant’s argument must be rejected. We have said

that “Such arguments are not properly the subject of an

Abney appeal. Even if the issue were before us, this court

has held that a violation of the Petite policy does not com-

pel the dismissal of a federal prosecution.” United States

v. Solano, 605 F.2d 1141, 1143 (CA9 1979).

ALLEGED GRAND JURY IRREGULARITIES

In his motion to dismiss the indictment on account of

the grand jury irregularities, the appellant requested an order:

(1) compelling disclosure of the sessions of the grand jury

held to consider evidence leading to the indictment return-

ed on April 26, 1979; (2) disclosure of the attendance of

the grand jurors at each of the sessions; (3) upon such dis-

Appendix 6.

closure to dismiss the indictment upon the ground that it was

returned by grand jurors who did not hear, evaluate, or delib-

erate upon the evidence presented to the grand jury; and (4)

upon the further ground that the purpose of the grand jury

as envisioned by the Fifth Amendment was defeated by the

procedures utilized by the government in obtaining the indict-

ment.

Appellant specifically complains that the jurors who

indicted him did not hear the evidence. He claims that one

grand jury heard the evidence and did not return a true bill

and that there are indications in disclosures made by the

government that a major portion of the testimony heard

by the indicting grand jury was simply a recapitulation of the

case presented to the first grand jury. Additionally, appel-

lant asserts that the summary was submitted by a law en-

forcement agent who had inherited the case upon the

retirement of another agent.

As a threshold matter we must consider whether the

order denying appellant’s motion to dismiss the indictment

because of grand jury irregularities is appealable. Our juris-

diction is wholly statutory and so we must determine whether

the order falls within the terms of the applicable statute—in

this case 28 U.S.C. 8 1291.

Section 1291 provides that “The courts of appeals

shall have jurisdiction from all final decisions of the dis-

trict courts of the United States,”’. A final decision has

long been regarded as a predicate to federal appellate jur-

isdiction. The finality requirement reflects the congression-

al policy to avoid the threats to efficient judicial administra-

tion incident to interlocutory or “piecemeal” appeals. And

[a] dherence to this rule of finality has been particularly

Appendix )

stringent in criminal prosecutions because ‘the delays

and disruptions attendant upon intermediate appeal,’

which the rule is designed to avoid, ‘are especially inimical

to the efficient and fair administration of the criminal law.’

Dibella, supra, at 126.”’ Abney v. United States, 431 U.S.

651, 657 (1977).

The ease with which the finality rule is stated, how-

ever, belies the difficulty of its application. The Supreme

Court has noted that “‘[n]o verbal formula yet devised can

explain prior finality decisions with unerring accuracy or

provide an utterly reliable guide for the future.”’ Eisen v.

Carlisle & Jacquelin, 417 U.S. 156, 170 (1974). Indeed,

the Court’s efforts to give the rule a “practical rather than

a technical construction’’, Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541, 546 (1949), have on occasion

led to some rather curious results. See e.g., Gillespie v.

United States Steel Corp., 379 U.S. 148 (1964).

Generally § 1291 requires that an order, to be appeal-

able, must terminate the proceedings in the district court.

Certain orders, however, which do not constitute final

judgments fall within the “collateral order’ exception

articulated in Cohen and are, therefore, ‘‘final decisions”

within § 1291.

Cohen was a stockholder’s derivative action brought

in a federal district court in New Jersey. Federal jurisdic-

tion was premised upon diversity of citizenship. The de-

fendant made a motion to require the plaintiff to post

security for reasonable expenses incurred by the defense

as was required by a newly enacted New Jersey statute.

The district court determined that the state statute did not

apply in the federal action and denied the motion. The court

Appendix 8.

of appeals reversed and ordered the posting of security. The

Supreme Court concluded that the court of appeals had prop-

erly assumed jurisdiction and affirmed on the merits.

Mr. Justice Jackson based the determination of appeal-

ability on several factors. First, the district court’s order was

a final disposition of the particular issue involved. It was not

“tentative, informal or incomplete,” in any sense. 337 U.S.

at 546. Second, the issue was not simply a “step toward

final disposition of the merits of the case.” Jd. And finally,

review after final judgment would be ineffective because

at that point the “rights conferred by the statute, if it [was]

applicable, [would] have been lost, probably irreparably.”

Id. The statute was intended to prevent “‘strike suits” by

requiring security for payment of reasonable expenses if

the action was adjudged to be unsustainable. The protection

this statute afforded would have been lost if the defendant

was required to proceed to trial without such assurances.

Finally, the Court noted that the issue involved was a

“serious and unsettled question.” Jd. at 547.

The Court concluded that “‘[t] his decision appears to

fall in that small class which finally determine claims of

right separable from, and collateral to, rights asserted in

the action, too important to be denied review and too inde-

pendent of the cause itself to require that appellate consider-

ation be deferred until the whole case is adjudicated.” Jd. at

546.

More recently, in Abney v. United States, 431 U.S. 651

(1977), the Court considered whether a pretrial order deny-

ing a motion to dismiss an indictment on double jeopardy

grounds satisfied the Cohen requirements. The Court, per

Mr. Chief Justice Burger, concluded that such an order was

Appendix 9.

indeed a “‘collateral order” within the “small class of cases”’

that are exceptions to the final judgment rule. First, an order

denying a motion to dismiss on double jeopardy grounds is a

complete and final rejection, in the trial court, of a defendant’s

double jeopardy claim. Second, a double jegpardy claim “‘is

collateral to, and separable from, the principal issue at the

accused’s impending criminal trial, i.e, whether or not the

accused is guilty of the offense charged.” Jd. at 659. Final-

ly, the Court stated that “the rights conferred on a criminal

accused by the Double Jeopardy Clause would be significantly

undermined if appellate review of double jeopardy claims

were postponed until after conviction and sentence.” Jd. at

660. The double jeopardy clause is, in part, a guarantee

against being put to trial twice for the same offense and this

would be lost if a criminal defendant was forced to endure

trial prior to appellate review.

The substantive double jeopardy claim presented in

Abney, unlike the issue involved in Cohen, was not a

serious and unsettled question.! The Court determined,

however, that “‘the special considerations permeating”, id.

I Some courts have emphasized the requirement that the issue

involved be a serious and unsettled question. In 0 Watch-

ers v. Weight Watchers International, Inc.. 455 F

, the Second Circuit said that ''[a] nother important

factor bearing on the application of the Cohen doctrine, .. . ,

is whether a decision will settle a point once and for all, as it did

in the Cohen case, or will open the way for a flood of appeals

concerning the propriety of a district court's ruling on the facts

md a particular suit. The Second Circuit has recently debated

uestion of whether Cohen requires that a "collateral order"

a ve a serious and unsettled question. Compare Armonstron

v. McAlpin, No. 79-7042, Sl. Op. at 3706-8 aa n. IT (CAZ,

June 70 T9B0) with SI. Op. at 27324 (Mulligan, J., concurring in

part and dissenting in part).

Appendix 10.

at 663, double jeopardy ciaims justified including another

class of cases within the “‘small class of cases” that satisfy

the “collateral order’ exception. The Court acknowledged

that “our holding may encourage some defendants to

engage in dilatory appeals . . . . However, we believe

that such problems of delay can be obviated by rules or

policies giving such appeals expedited treatment. It is

well within the supervisory powers of the courts of appeals

to establish summary procedures and calendars to weed

out frivolous claims of former jeopardy.” Jd. at 662 n. 8.?

Perhaps not surprisingly, the short period since the

Supreme Court’s decision in Abney has been marked by

an increasingly targe number of claims that various pre-

trial orders are immediately appealable as “‘collateral

otders.” The Supreme Court, in United States v. MacDonald,

435 U.S. 850 (1978) rejected an assertion that a pretrial

order denying a defendant’s motion to dismiss an indictment

because of an alleged violation of his Sixth Amendment

right to a speedy trial was a “final decision.”” After re-

emphasizing the importance of finality to judicial admin-

istration, especially in the criminal context, the Court

proceeded to apply the criteria enunciated in Cohen and

Abney.

First, the Court noted that the denial of a motion to

dismiss on speedy trial grounds does not represent a com-

plete and final rejection, in the trial court, of the defendant’s

21t should be noted that the Abney court expressly precluded

the possibility of a court of aalie exercising pendent appellate

jurisdiction. Each claim in a motion to dismiss must be treated

separately. A claim is not appealable because brought in conjunction

with a double jeopardy claim. Each claim, in order to be immediate-

ly appealable, must independently satisfy the ''collateral order’

exception.

Appendix ll.

claim. ““The resolution of a speedy trial claim necessitates

a careful assessment of the particular facts of the case. As

is reflected in the decisions of this Court, most speedy trial

claims, therefore, are best considered after the relevant facts

have been developed at trial.” /d. at 858. A defendant

would have the opportunity to make a similar motion after

trial—when prejudice could be better evaluated.

Second, the rejection of a speedy trial claim is not

“collateral” to the principal issue at trial. The determina-

tion of a speedy trial claim is not independent of the out-

come at trial—particularly since the question of prejudice

to the defense is central to an analysis of a speedy trial

claim.

Third, the right involved in MacDonald was unlike

the rights asserted in Cohen and Abney in that its “legal

and practical value . . . would [not] be destroyed if it

were not vindicated before trial.” Jd. at 860. The Court

recognized that there was a “superficial attraction” to the

contention that the right to a speedy trial involved a right

not to be subject to a nonspeedy trial. However, “‘[u] nlike

the protection afforded by the Double Jeopardy Clause, the

Speedy Trial Clause does not, either on its face or according

to the decisions of this Court, encompass a ‘right not to be

tried’ which must be upheid prior to trial if it is to be enjoy-

ed at all. It is the delay before trial, not the trial itself, that

offends against the constitutional guarantee of a speedy trial.”

Id. at 861.

The Court asserted that the application of the Cohen

and Abney analysis resolved the appealability issue. It

then mentioned several policy considerations which “rein-

forced”’ its conclusion. Among these considerations was the

Appendix 12.

fact that because there would inevitably be some delay

between indictment and trial every defendant could make

a pretrial motion for dismissal on speedy trial grounds, the

denial of which would be immediately appealable. Unlike

a double jeopardy claim, which requires at least a colorable

showing of former jeopardy “there is nothing about the

circumstances that will support a speedy trial claim which

inherently limits the availability of the claim.” Jd. at 862.

The Court concluded its analysis by saying that “‘we decline

to exacerbate pretrial delay by intruding upon accepted

principles of finality to allow a defendant whose speedy

trial motion has been denied before trial to obtain inter-

locutory appellate review.” /d. at 863.

In Helstoski v. Meanor, 442 U.S. 500 (1979), the

Court again considered the scope of the “collateral order”

exception, this time in the context of the speech or

debate clause. Helstoski, a United States Congressman

from New Jersey, had moved to dismiss an indictment

on the ground that the indictment violated the speech

or debate clause. This motion was denied. Helstoski

petitioned the Third Circuit for a writ of mandamus

directing the district court to dismiss the indictment.

The court declined to issue the writ, holding that the

indictment did not violate the speech or debate clause.

The Supreme Court determined that mandamus was not

the appropriate remedy because review had been available

by direct appeal.

The Court found that the district court order reject-

ing the speech or debate clause claim was a “collateral

order.”’ The denial of the motion to dismiss was a final

disposition, in the trial court, of that particular claim.

Appendix 13.

Second, the speech or debate clause contention was wholly

collateral to the merits of the charge against Helstoski. And

because “‘the Speech or Debate Clause was designed to

protect Congressmen ‘not only from the consequences of

litigation’s results but also from the burden of defending

themselves.’ ”’, Jd. at 508, this right would be lost if Helstoski

was exposed to prosecution prior to appellate review.

This court has recently held that the denial of a motion

to dismiss an indictment on grounds of vindictive prosecution

is an appealable order. United States v. Griffin, 617 F.2d

1342 (CA9 1980). Griffin involved a straightforward applica-

tion of the Cohen criteria. Most importantly, we found that

““a vindictive prosecution claim, like the Abney double

jeopardy claim, involves a right to be free from prosecution

itself, rather than merely the right to be free from a subse-

quent conviction. Thus, the vindictive prosecution doctrine

is a limit on prosecutorial discretion, and goes to the very

authority of the prosecution to hale the defendant into

court in the first place.” Jd. at 1345-6.

In Jn re Fendler, 597 F.2d 1314 (CA9 1979), we con-

sidered whether an order denying a petition to conduct a

voir dire of the grand jurors investigating appellant concern-

ing their possible bias, prejudice or economic interest was

appealable. We concluded that such an order was not appeal-

able. In Fendler an indictment had yet to be returned and

the instant case might appear to be distinguishable on that

ground. However, the court indicated that such facts would

not be a controlling factor on the question of appealability.

We said “‘[t] here is no reason to depart from the policy

against piecemeal appeals in this case. If and when an

indictment is returned against appellant, he can raise his

Appendix 14.

claims in a motion to dismiss the indictrnent, 28 U.S.C.

§ 1867 (e) and Fed.R.Crim.P. 6 (b) (2); and since the

denial of such a motion is seviewable on direct appeal

from a criminal conviction, denial of review now will

not render review impossible.”’ Id. at 1315 [Emphasis

added]. Although this statement is not binding in this

instance we believe that it cautions against an overbroad

reading of Cohen and Abney.

In the instant case appellant contends that the order

denying his motion to dismiss the indictment because of

grand jury irregularities is appealable. Since the order is

not “final” as that term is ordinarily construed appellant

maintains that it is within the “small class of cases’’ that

qualifies as a “collateral order.’’ We note at the outset

that the particular issue here in question is not appealable

simply because brought together with the admittedly

appealable double jeopardy claim. In light of Abney’s

rejection of the concept of pendent appellate jurisdiction

we refuse to follow appellant’s suggestion that we resolve

all the issues presently before us simply because of the

existence of the double jeopardy claim.

Appellant claims that the order herein involved

satisfies the principles the Supreme Court articulated

in Cohen and Abney. The district court’s order was a

complete and final determination of appellant’s claim. And

the issue involved is collateral to, and separate from, the

principal issue at trial, i.e., the guilt or innocence of the

appellant. The question remains, however, whether the

particular right involved would be “‘lost, probably irrepar-

ably” if immediate appellate review is not available.

The Fifth Amendment provides, in part, that “No

Appendix 15.

person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment

of a Grand Jury,” U. S. Const. amend. V. The Supreme

Court has said that “‘[t]he very purpose of the requirement

that a man be indicted by grand jury is to limit his jeopardy

to offenses charged by a group of his fellow citizens acting

independently of either prosecuting attorney or judge.”

Stirone v. United States, 361 U.S. 212, 218 (1960).

* “(T]he institution [grand jury] was adopted

in this country, and is continued from consider-

ations similar to those which give it its chief

value in England, and is designed as a means,

not only of bringing to trial persons accused of

public offences upon just grounds, but also as a

means of protecting the citizen against unfound-

ed accusation, whether it comes from government,

or be prompted by partisan passion or private

enmity. No person shall be required, according

to the fundamental law of the country, except

in the cases mentioned, to answer for any of the

higher crimes unless this body, consisting of not

less than sixteen nor more than twenty-three

good and lawful men, selected from the body of

the district, shall declare, upon careful delibera-

tion, under the solemnity of an oath, that there

is good reason for his accusation and trial.’ ”’

Ex parte Bain, 121 U.S. 1, 11 (1886).

The right to an indictment by a grand jury is, there-

fore, intended to insure that one is not “‘held to answer”

for an infamous crime unless an independent body standing

between the prosecutor and the accused has determined that

Appendix 16.

the accused should be required to do so. Here, appellant

was indicted by a grand jury and so we are not required

to address the appealability of an order denying a motion

to dismiss on the grounds that an indictment allegedly re-

quired by the Fifth Amendment was wholly absent.

Appellant argues that because of alleged irregularities

the purposes of the grand jury were not served. Appellant

maintains that he has a right not to be prosecuted, not to

be “held to answer,”’ unless the grand jury proceedings

were properly conducted. Otherwise, the grand jury will

not have served its intended purpose of standing as a buffer

between the accuser and the accused. Appellant is not

asserting a right to be free from subsequent conviction

because even if there was a dismissal there could be a re-

indictment. Appellant is asserting a right to be free from

this prosecution because of the alleged grand jury irregu-

larities. He asserts that later review would be meaningless

because at that point he will have been forced to endure

trial without the assurance that the grand jury had effec-

tively served its intended purpose. The right not to stand

trial unless indicted by a properly functioning grand jury

will have been irreparably lost.

We admit the argument appellant advances has a

“superficial attractiveness.’’ We hold, however, that the

order denying the motion to dismiss the indictment

because of grand jury irregularities is not immediately

appealable. Our conclusion is premised primarily upon

pragmatic considerations. The ‘“‘collateral order”

exception should be narrowly construed so that the

exception does not swallow the finality rule. Although

one may dispute the wisdom of the finality rule Congress

Appendix 17.

had determined that, in most instances, a “final decision”

is a predicate to the exercise of federal appellate jurisdic-

tion. We are convinced that, especially in the criminal

context, the policy against piecemeal appellate adjudica-

tion 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. We decline appellant’s invitation to

include this class of case within the “small class of cases”

that satisfy the “‘collateral order’ exception.

To hold the order here in question appealable would

open the possibility for a pretrial appeal in nearly every

criminal case. A claim like the one appellant is making—

that the evidence before the grand jury was not adequate

and competent, 7.¢., that it was hearsay evidence—would

be available in nearly every instance.

In Costello v. United States, 350 U.S. 359, 363-4

(1956), the Court rejected such claims and there said:

“[p] etitioner urges that this Court should

exercise its powers to supervise the adminis-

tration of justice in the federal courts and

establish a rule permitting defendants to

challenge indictments on the ground that

they are not supported by adequate or com-

petent evidence. No persuasive reasons are

advanced for establishing such a rule. It

would run counter to the whole history of

the grand jury institution, in which laymen

conduct their inquiries unfettered by tech-

nical rules. Neither justice nor the concept

of a fair trial requires such a change. In a

Appendix 18.

trial on the merits, defencants are entitled to a

strict observance of all the rules designed to

bring about a fair verdict. Defendants are not

entitled, however, to a rule which would result

in interminable delay but add nothing to the

assurance of a fair trial.”’

Recently the Third Circuit in In re Grand Jury Proceed- ‘

ings (Johanson), No. 80-1418 (CA3 August 21, 1980), reject-

ed a contention that the denial of a motion for an evidentiary

hearing to learn who had divulged information to the news

media in order to have them disqualified from participating

in grand jury proceedings was an appealable order. The court

said that “‘flawed grand jury proceedings can be effectively

reviewed by this court after a conviction has been entered and

all criminal proceedings have been terminated in the district

court. [Citing Costello] . . . Because delayed appellate

review will not irreparably deny Johanson his right to an

impartial grand jury, (his conviction could be reversed if at

a later stage we conclude the grand jury was tainted) the order

is not reviewable immediately as a collateral order.” Jd. sl.

op. at 9 - 10.

Mr. Justice Blackmun’s observations in MacDonald,

supra, are equally applicable here. Like a speedy trial claim, 2

and unlike a double jeopardy claim, there is nothing about

the circumstances of the type of claim involved herein that .

would inherently limit its availability. In every criminal

prosecution a defendant could make a motion to dismiss

because of the type of evidence presented to the grand jury,

and, under the rationale espoused by appellant, its denial

would be immediately appealabie. To allow an immediate

appeal under these circumstances would bring about a dis-

Appendix 19.

ruption of the efficiency of the criminal justice system

that we are unwilling to countenance,

CONCLUSION

The order of the district court denying the motion

to dismiss on double jeopardy grounds is AFFIRMED.

The order of the district court denying the motion to

dismiss on the Petite policy ground and on the basis of

the alleged grand jury irregularities is not appealable.

These claims may be asserted if the appellant is subse-

quently convicted. Accordingly, the appeal on the latter

two issues is dismissed.

IT IS SO ORDERED.

APPENDIX “B” 20.

ORDER DENYING PETITION FOR REHEARING

AND SUGGESTION FOR REHEARING EN BANC

In the United States Court of Appeals for the Ninth

Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

vs. ROY DALTON GARNER, Defendant-Appellant.

No. 79-1802.

DC No. CR 79-17-1 (ECR) Reno, Nevada

[FILED NOVEMBER 19, 1980]

Before: KILKENNY, FARRIS, Circuit Judges and

BELLONI,* District Judge

The panel as constituted in the above case has voted

to deny the petition for rehearing and to reject the sugges-

tion for rehearing en banc.

The full court has been advised of the suggestion

for en banc rehearing and no judge of the court has re-

quested a vote on it. Fed. R. App. P. 35(b).

The petition for rehearing is denied and the suggestion

for rehearing en banc is rejected.

*The Honorable Robert C. Belloni, United States District Judge for the District

of Oregon, sitting by designation.

APPENDIX “C” 21.

MINUTE ORDER STAYING MANDATE

In the United States Court of Appeals for the Ninth

Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

vs. ROY DALTON GARNER, Defendant-Appellant.

CA NO. 79-1802.

DC NO. Cr79-17-1 ECR NEVADA (Reno)

[FILED DECEMBER 17, 1980]

Before: KILKENNY, FARIS, Circuit Judges and

BELLONI,* U. S. District Judge

Appellant’s Application for Stay of Mandate Pending

Filing of a Petition for Writ of Certiorari is granted. The

mandate is stayed to and including January 19, 1981.

FOR THE COURT

Richard H. Deane,

Clerk of Court

by Ms. J. V. Ross, Deputy

*The Honorable Robert C. Belloni, United States District Judge from the

District of Oregon, sitting by designation.

APPENDIX “D” ae.

ORDER CONSOLIDATING PRETRIAL APPEAL

(No. 79-1805) OF ROWENA GARNER WITH HER

DIRECT APPEAL AFTER CONVICTION (No. 80-1147)

In the United States Court of Appeals for the Ninth

Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

vs. ROWENA GARNER, Defendant-Appellant.

No. 79-1805

{FILED JULY 30, 1980]

Appeal from the United States District Court

District of Nevada

Before: KILKENNY and FARRIS, Circuit Judges, and

BELLONI, District Judge.*

Rowena Garner’s appeal No. 79-1805 from the denial of

her pretrial motion to dismiss the indictment against her, cal-

endared for the August 11, 1980, session of this court in San

Francisco, is stricken from that calendar and ordered consol-

idated with her direct appeal from her conviction in United

States of America v. Rowena Garner, Appeal No. 80-1147.

KILKENNY

Circuit Judge

"The Honorable Robert C. Belloni, United States District Judge for the District

of Oregon, sitting by designation.

DECLARATION OF SERVICE BY MAIL

STATE OF CALIFORNIA )

) ss,

County of Orange )

I, the undersigned, say: I am and was at all times herein mentioned

a citizen of the United States and employed in the County of Orange,

State of California, over the age of eighteen years and not a party to

the within action or proceeding; that

My business address is 326% Main Street, Huntington Beach, Califor-

nia 92648, thaton JANUARY __, 1981, I served the within PETITION

FOR WRIT OF CERTIORARI TO THE U. S. COURT OF APPEALS FOR

THE NINTH CIRCUIT (United States v. Garner) on the following named

parties by depositing three copies thereof, each, enclosed in a sealed

envelope with postage thereon fully prepaid, in the United States Post Office

in the City of Huntington Beach, California, addressed to said parties at the

address as follows:

SOLICITOR GENERAL OF THE UNITED STATES

U. S. Department of Justice

Washington, D. C. 20530

UNITED STATES ATTORNEY

FOR THE DISTRICT OF NEVADA

300 Las Vegas Blvd. South

Federal Building

Las Vegas, Nevada 89101

I declare under penalty of perjury that the foregoing is true and correct.

Executed on JANUARY _, 198] -at HUNTINGTON BEACH, CALIF-

ORNIA. —

D. A. Standefer

41 COPIES to UNITED STATES SUPREME COURT, WASHINGTON, D.C.

with $200 docket fee annexed to copy marked Original

Dean-Standefer, 326% Main St., Huntington Beach, Ca.

(714) 536-7161