Petition — Linton v. United States
Supreme Court brief1981
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8021555
No.
VAR 14 1981
ALEXANU=R L. STEVAS,
: 47 RK
Iu the
Supreme Court of the United States
Ocroser TERM, 1980
LEE LINTON, SORKIS J. WEBBE, FRED L. KENNEDY,
ROBERT C. TINDELL, ALADDIN HOTEL CORPORATION,
and DENNIS PIOTROWSKI,
Petitioners,
V8.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
JAMES M. SHELLOW ALBERT J. KRIEGER
222 East Mason Street 1428 Brickell Avenue
Milwaukee, Wisconsin 53202 Miami, Florida 33131
(414) 271-8535 (305) 377-0802
Attorney for Aladdin Attorney for Petitioner Webbe
Hotel Corporation
THOMAS D. DECKER V. DeVOE HEATON
55 East Monroe Street 302 E. Carson Avenue
Chicago, Illinois 60603 Las Vegas, Nevada 89101
~ (312) 263-4180 (702) 384-5563
Attorney for Petitioner Linton Attorney for Petitioner Kennedy
OSCAR B. GOODMAN JAMES J. TWITTY
520 South Fourth Street 9601 Wilshire Boulevard
Las Vegas, Nevada 89101 Penthouse
(702) 384-5563 Beverly Hills, Cal. 90210
Attorney for Petitioner Tindell (213) 273-5540
Attorney for Petitioner Piotrowski
UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581
QUESTION PRESENTED FOR REVIEW
Is a pretrial order denying a motion to dismiss a crimi-
nal indictment, brought on the ground that the misconduct
of the government prosecutor and government agents be-
fore the indicting grand jury deprived the defendant of
his Fifth Amendment right to indictment by an informed
and unbiased grand jury, a final decision within the mean-
ing of 28 U.S.C. $1291 and thus immediately appealable?
PARTIES IN THE COURT OF APPEALS
Each of the petitioners is a defendant in a criminal case
pending in the United States District Court for the Dis-
trict of Nevada. Two additional parties are named as de-
fendants in the District Court. They are James R. Comer
and the Del E. Webb Corporation.
All eight defendants, including the two not appearing as
petitioners here, filed a motion to dismiss the indictment
on grounds of abuse of the grand jury process. Hearing
on the motions was combined, and the motions were denied
in the same order. All eight of the defendants filed notices
of appeal from the order. The appeals were consolidated
in the United States Court of Appeals for the Ninth Cir-
cuit. The Court of Appeals disposed of the combined ap-
peals in a single per curiam opinion. Mr. Comer and the
Del E. Webb Corporation do not appear as parties in this
petition because their counsel have indicated they do not
wish to seek review of the decision of the Court of Appeals
in this Court.
TABLE OF CONTENTS
——
PAGE
Question Presented For Review .........-.----:--sssssssseeeee i
Parties in the Court of Appeals .......-..-..-::s:eceeeseeetees 1
Opinions Below . .........-.-.::-:::ssssssseesecseseseeeseseensensnenseneneacananss 1
Grounds for Invoking this Court’s Jurisdiction ........ 2
Constitutional Provisions and Statutes Involved ........ 2
Statement of the Case icin euicbb tanec nna 2
Basis for Federal Court Jurisdiction ..........--...2-.+-+ 7
Reasons for Allowances of the Writ ...........-:::::-::0 8
7. Cen ert sciheiianindaiateapaaaae 8
: ll. Collateral Orders Appealable Pretrial ................ 9
* Application of the Criteria .....--.-....-1c-eceee 10
IV. Dealing With Dilatory Appeals — ..........---- 12
V, COmchuBion .........00....cseccccnseosecceescecnenersesnseensssnnssancnees 18
PREVIOUS PAGE WAS BLANK |
etme camming tay
Appendix :
Opinions and Orders in This case
A. Opinion of the Court of Appeals for the
Ninth Circuit, United States v. Linton,
et al., Case Nos. 80-1548 to 80-1555, and
80-1564 (Filed Dec. 1, 1980) (not re-
MRE aetecdnscasapesseoecocannantiasbinastinentaptivniahpesenee App. 1
B. _ Order on Rehearing (Filed Jan. 20, 1981) App. 4
Aen
C. Opinion of the United States District
Court for the District of Nevada, United
States v. Linton, et al., Case No. CR-R-
80-24-ECR (Filed July 23, 1980) ............ App. 5
ns in Related Cases
A. United States v. Garner, 632 F.2d 758
OPN Se UD) hncemrcessy) Santgtcestineceaennterng tons App. 26
United States v. Yellow Freight System,
Inc., —— F.2d , Nos. 79-1665 and
79-1666 (9th Cir. Oct. 17, 1980) .............. App. 44
v
TABLE OF AUTHORITIES
Cases
PAGE
Abney v. United States, 431 U.S. 651 (1977) ........ 8, 9, 10, 15
Ex parte Bain, 121 U.S. 1 (1887) -.....-.-.----ceeeseeeeeeeeeeees 11
Branzburg v. Hayes, 408 U.S. 655, (1972) .......--..--0-++-+- 11
Cohen v. Beneficial Industrial Loan Corp., 337 U.S.
B41 (1949) .2.n.n.nenenecesescssscesesseecersnencneececesssennseensaeneensnensnenens 9
Carroll v. United States, 354 U.S. 394 (1957) ............ 13
Bisen v. Carlisle & Jacqueline, 417 U.S. 156 (1974) ...... 9
Gillespie v. United States Steel Corp., 379 U.S. 148
(1964) .eeeeeeeescessesseeneenessesesensenssncsssneenssnsneenesnenssansamenanacenenes 9
Helstoski v. Meanor, 442 U.S. 500 (1979) ........ 8, 9, 10, 11, 12
Stack v. Boyle, 342 U.S. 1 (1901) ....-------s:ceceseecssteees 9
Stirone v. United States, 361 U.S. 212 (1960) ............ 12
United States v. Barham, 608 F.2d 602 (Sth Cir. 1979) 16
United States v. Basturto, 497 F.2d 781 (9th Cir. 1974) 12
United States v. Burt, 619 F.2d 831 (9th Cir. 1980) ..... 16
United States v. Costello, 350 U.S. 359 (1956) ............ 12,13
United States v. Dionisio, 410 U.S. 1 (1978) ................ 12
United States v. Gold, 470 F. Supp. 1336 (N.D. Ill. 1979) 12
United States v. Garner, 632 F.2d 758 (9th Cir. 1980),
cert. denied, 49 U.S.L.W. 3618 (U.S. Feb. 23, 1981)
(U.S. Feb. 23, 1981) .......--.--secscsecseessesesenenseees 7, 8, 12, 13, 15
United States v. Griffin, 617 F.2d 1342 (9th Cir. 1980) 9
United States v. Lee Linton, et al., Case No. LV-79-83
(since changed to Case No. R-80-24) 0.2... 2
United States v. Lynch, 598 F.2d 132 (D&. Cir. 1978),
cert. denied, 444 U.S. 846 (1979) .........-::ceeeneceeseees 16
r%,
vi
PAGE
United States v. McDonald, 435 U.S. 850 n.6 (1978) .... 14
United States v. Samango, 607 F.2d 877 (9th Cir. 1979) 12
United States v. Serubo, 604 F. 2d 807 (3d Cir. 1979) .. 12
United States of America v. Sorkis J. Webbe, Case
No. LV-79-82 (since changed to Case No. R-80-25) . 3
United States v. Yellow Freight System, Inc., ——
F. 24d ——, Nos. 79-1665 and 1966 (9th Cir. Oct. 17,
ES STAR See 11
OTHER AUTHORITIES CITED
Statutes and Ordinances
A 3
SS 3
EE 3
SE) EE 3
eT es 3
a csscencenccnccesecennsssseennene 3
A 7
| a 3
mee ree) Nn. 3
OS 2
IE i, 2,7
49 U.S.C. §41(1), (3) (1976) occceecccccessccssseesecsssecesseseeeeee 11
Other Authorities
Fifth Amendment to the Constitution of the United
ONS SE i, 2, 8, 12, 13, 17
In the
Supreme Court of the United States
Octoser TERM, 1980
No.
LEE LINTON, SORKIS J. WEBBE, FRED L. KENNEDY,
ROBERT C. TINDELL, ALADDIN HOTEL CORPORATION,
and DENNIS PIOTROWSKI,
Petitioners,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Ninth Circuit has not been reported. The opinion is
set out in full on the Appendix beginning at App. 1, infra.
The District Court issued a 23 page opinion on the
merits of the defendants’ motions to dismiss. That opin-
ion has not been reported. The opinion is set out in full
in the Appendix beginning at App. 5, infra.
GROUNDS FOR INVOKING THIS
COURT’S JURISDICTION
The decision of the United States Court of Appeals was
issued on December 1, 1980. These petitioners and the two
defendants in the District Court who do not appear as
parties in this petition duly filed motions for reconsidera-
tion. Reconsideration was denied by an order entered on
January 20, 1981. The order is set out in full in the Appen-
dix at App. 4, infra. This Court’s jurisdiction is invoked
under 28 U.S.C. §1254(1).
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
The Fifth Amendment to the Constitution of the United
States provides in relevant part:
‘‘No person shall be held to answer for a capital or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury....’’
28 U.S.C. $1291 provides in relevant part:
‘‘The courts of appeals shall have jurisdiction of ap-
peals from all final decisions of the district courts of
the United States , . . . except where a direct review
may be had in the Supreme Court.’’
STATEMENT OF THE CASE
This case began its formal existence on December 4,
1979, when a special grand jury sitting in Las Vegas,
Nevada returned two related indictments. One indictment
was entitled United States of America v. Lee Linton, et al.,
Case No. LV-79-83 (since changed to Case No. R-80-24).
That indictment names as defendants six individuals, Lee
Linton, Sorkis J. Webbe, Fred L. Kennedy, Robert C. Tin-
3
dell, Dennis Piotrowski, and James R. Comer, and two
corporations, the Aladdin Hotel Corporation and the Del
E. Webb Corporation. It contains 43 counts charging con-
spiracy in violation of 18 U.S.C. $371 (Count 1); mail
fraud in violation of 18 U.S.C. §1341 (Counts 2-13); wire
fraud in violation of 18 U.S.C. $1343 (Counts 14-28) ; inter-
state transportation of property obtained by fraud in vio-
lation of 18 U.S.C. $2314 (Counts 29-37) ; Hobbs Act extor-
tion in violation of 18 U.S.C. $1951 (Counts 38-39); a
RICO count in violation of 18 U.S.C. §1962(¢) (Count 40) ;
and, against defendant Linton alone, three tax evasion
counts in violation of 26 U.S.C. $7201 (Counts 41-43). The
related indictment was entitled United States of America
v. Sorkis J. Webbe, Case No. LV-79-82 (since changed to
Case No. R-80-25). It charges Mr. Webbe with two counts
of making false tax returns in violation of 26 U.S.C.
§$7206(1).
Following arraignment on September 14, 1979, the de-
fendants below filed motions to dismiss the indictment, for
severance, for various forms of disclosure of the grand
jury proceedings, for bills of particulars and discovery,
and motions for other forms of relief. Consideration of
this set of motions was delayed pending decision of a mo-
tion filed by the government to disqualify the Honorable
Roger D. Foley, District Judge, to whom the case was
originally assigned. The motion to disqualify Judge Foley
was referred to the Honorable Bruce R. Thompson, Senior
District Judge for decision. On December 5, 1979, Judge
Thompson denied the government’s motion to disqualify
Judge Foley.
On January 18, 1980, Judge Foley issued a minute order
deciding the bulk of the defendants’ motions. Trial on
count one of the indictment, the conspiracy count, was
severed from the trial of the remaining 42 counts in Case
+
No. LV-79-83. The other motions for severance, the mo-
tions to dismiss, and the motions for disclosure of the
grand jury proceedings were denied. The motions for dis-
eovery and bills of particular were granted.
In response to the order granting discovery, the govern-
ment turned over to the defendants 12 cartons of docu-
ments and indicated other material would be made avail-
able for review in the government’s offices in the court-
house. Materials stored in the courthouse consisted of six
file cabinets of paper and numerous cartons of records on
microfilm. Included in the discovery material produced by
the government were transcripts of the testimony of each
of the witnesses who appeared before the indicting grand
jury. The indicting grand jury heard the testimony of one
citizen witness and three government agents. The govern-
ment agents purported to summarize testimony and evi-
dence presented to three prior grand juries.
Also included in the discovery material were the tran-
scripts of the testimony of witnesses before the prior grand
juries. Based in large part on a comparison between the
evidence presented to the indicting grand jury and the
evidence heard by the prior grand juries, the defendants
below prepared and filed motions to dismiss the indict-
ment. It is this set of motions which is the subject of the
instant petition.
The indicting grand jury was told by the prosecutor in
charge of the case that it would hear a complete and accu-
rate summary of the evidence presented to the prior grand
juries. The defendants below argued in their moving
papers that the indicting grand jury heard perjured testi-
mony from the government agent witnesses, that their tes-
timony omitted any reference to the exculpatory evidence
heard by the prior grand juries, and that their testimony
was deceptively selective rather than complete and accu-
5)
rate as promised. The defendant also argued that the
manner in which the summary evidence was presented was
calculated to deceive the indicting grand jury as to basic
principles of criminal liability and that the prosecutions
were vindictive.’
In addition to dismissal, the defendants’ motions sought
disclosure of the transcripts of the colloquy between the
prosecutor and the indicting grand jury during those
times when no witnesses were present. The government
opposed the defendants’ request for disclosure of the col-
loquy transcripts. Copies of the transcripts were filed with
the trial court for an in camera inspection. The initial
indication from the trial court was that the transcripts of
colloquy would not be disclosed. Oral argument on the
defendants’ motions to dismiss was set for July 7, 1980.
By this time, the case had been reassigned to the Honor-
able Edward C. Reed, Jr., United States District Judge.
A short!time before the scheduled argument on the mo-
tions to dismiss, the District Court ordered disclosure of
the colloquy transcripts. Transcripts of the witness testi-
mony before the indicting grand jury totalled only 386
pages. The colloquy transcripts totallec 230 pages. The
colloquy transcripts revealed additional material to sup-
port the arguments made in writing by the defendants.
They also contained material which produced new argu-
! Orders denying motions to dismiss criminal cases on the ground
that the prosecution is vindictive are appealable pretrial in the
Ninth Circuit. United States v. Griffin, 617 F.2d 1342 (9th Cir.
‘980). The Court of Appeals concluded that only petitioner Tindell
ciearly raised a vindictive prosecution claim in the district court.
Petitioner Tindell's claim of vindictive prosecution was rejected by
the Court of Appeals on its merits. This petition raises only the
issue of the jurisdiction of the Court of Appeals over the grand
jury abuse claims.
6
ments in support of the motions to dismiss. For the most
part, the impact of the colloquy transcripts was argued
orally at the hearing on July 7, 1980. The defendants ar-
gued that the colloquy transcripts contained additional
instances of materially false and misleading statements of
fact; that the government prosecutor acted repeatedly as
an unsworn witness testifying to factual matters not men-
tioned in the testimony of any sworn witness; that the
prosecutor provided the indicting grand jury with a run-
ning commentary laced with the grossest sort of insult,
insinuation and innuendo that labeled the defendants as
professional criminals involved in organized crime; and
that the prosecutor repeatedly misinstructed the grand
jury about basic principles of criminal liability. .
The oral argument on the defendants’ motions to dis-
miss consumed better than eight hours in the trial court.
Reply arguments were filed in writing by the defendants
and by the government within the next 48 hours. On July
23, 1980, the district court issued a written opinion deny-
ing the defendants’ motions.* All eight of the defendants
filed timely notices of appeal. The trial setting of the con-
spiracy count was vacated by the district court pending
the outcome of the appeals.
Before the record or any briefs were filed, the govern-
ment asked the Court of Appeals to summarily dismiss the
appeals. The request was in the form of an ‘‘emergency’’
2 Because the Court of Appeals never addressed the merits of
the grand jury abuse claims, the petitioners do not discuss the
inerits of those claims in any detail in this petition. However, it
is appropriate to point out that some of the abuses complained of
by the petitioners are not discussed at all in the district court's
opinion and that the petitioners believe that the district court’s
opinion does not accurately represent what actually occurred before
the indicting grand jury as disclosed by the transcripts.
7
motion. The motion was supported only by a three-page
affidavit of the government prosecutor which made bare
assertions that the Court of Appeals was without jurisdic-
tion, that the appeals were frivolous and that they were
taken for purposes of delay. The motion was not supported
by a memorandum of authorities or by any part of the
record in the court below. The defendants responded with
memoranda and portions of the record. On September 3,
1980, the Court of Appeals issued an order denying the
government’s motion. The same order directed that all
nine appeals be consolidated.
After the briefs were filed, the consolidated appeal was
set for oral argument on November 10, 1980. On October
28, 1980, the Court of Appeals issued an order directing
the parties to argue the effect of the decision in United
States v. Garner, 632 F.2d 758 (9th Cir. 1980), cert. dented,
49 U.S.L.W. 3618 (U.S. Feb. 23, 1981), on the question of
the court’s jurisdiction to consider the grand jury issue.
Supplemental written arguments were filed on this ques-
tion and the issue was the subject of the bulk of the oral
argument. On December 1, 1980, the Court of Appeals
issued its per curiam decision dismissing the appeals on
the grand jury question for lack of jurisdiction.
BASIS FOR FEDERAL COURT JURISDICTION
This is a case brought by the government charging vio-
lations of the federal criminal statutes. The district court
has jurisdiction over the case under 18 U.S.C. $3231.
The petitioners argued below that the Court of Appeals
had jurisdiction under 18 U.S.C. §1291. The Court of Ap-
peals disagreed and dismissed the appeals. Whether or
not the Court of Appeals had jurisdiction under this stat-
ute is the issue presented by this petition.
REASONS FOR ALLOWANCES OF THE WRIT
I. Summary
Briefly stated, the petitioners request this Court to ex-
ercise its jurisdiction in favor of granting the writ for the
following reasons:
The petitioners complained in the trial court that the
acts of the prosecutor and government agents so poisoned
the indicting grand jury that their right to indictment
by an informed and unbiased grand jury was destroyed.
The petitioners have a right not to be faced with the ex-
pense and agony of a criminal trial absent an indictment
which meets Fifth Amendment standards. The issue
raised by the petitioners meets all three of the criteria
established by opinions of this Court for ‘‘collateral’’
inatters which are appealable pretrial. The failure of the
Court of Appeals to take jurisdiction over the merits of
the petitioners’ claims is in conflict with this Court’s
opinion in Helstoski v. Meanor, 442 U.S. 500 (1979).
These petitioners found themselves jurisdictionally
barred from the appellate courthouse because of «# opinion
issued in another case while their appeals were pending.
That case, United States v. Garner, 632 F.2d 758 (9th Cir.
1980), cert. denied, 49 U.S.L.W. 3618 (U.S. Feb. 23, 1981),
presented an issue of an entirely different character than
the issue presented in this case. The opinion in Garner
virtually concedes the existence of each of the criteria for
a ‘‘collateral’’ order. The opinion refuses jurisdiction
because of a fear of frivolous claims taken only for pur-
poses of delay. The rationale of Garner is in conflict
with the direction in Abney v. United States, 431 U.S. 651,
662 n.8 (1977), to deal with frivolous claims procedurally
without posing a jurisdictional bar to legitimate claims.
9
II. Collateral Orders Appealable Pretrial
Ordinarily, orders rendered in federal court prior to a
final judgment are not immediately appealable. However,
some pretrial orders fall within a ‘‘collateral’’ order ex-
ception to this rule. The exception was first developed in
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541
(1949) (refusal to require security from a plaintiff in a
shareholder’s derivative action). Since then, this Court
has held a number of issues determined by pretrial order
to be immediately appealable. Stack v. Boyle, 342 U.S. 1
(1951) (bail reduction); Gillespie v. United States Steel
Corp., 379 U.S. 148 (1964) (whether the Jones Act pro-
vided an exclusive remedy for the negligent death of a
seaman and whether siblings were entitled to damages) ;
Kisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) (certi-
fication as a class action and imposition of most of the
costs of notice on the defendants) ; Abney v. United States,
431 U.S. 651 (1977) (double jeopardy); Helstoski v.
Meunor, 442 U.S. 500 (1979) (presentation of evidence of
legislative acts to the indicting grand jury in violation of
the Speech or Debate Clause).
This Court’s opinions have established three criteria
for determining whether a pretrial order is ‘‘collateral’’
and thus immediately appealable. First, the issue decided
by the order must be completely collateral to the merits
of the litigation, i:e., that it has nothing to do with the
facts that may be proven at the subsequent trial. Second,
the order must be truly final in the sense that nothing
that might occur at later stages of the litigation including
the trial, will have any bearing on the resolution of the
issue decided by the order. Third, refusal to consider the
matter pretrial must threaten irreparable injury, 1.e., con-
sideration of the issue after the trial would come too late
to vindicate the rights involved.
10
III. Application of the Criteria
The first two criteria are largely mechanical in nature
and the question of whether they are present ordinarily
will be easy to determine. The irreparable injury criteria
is the one that is the most difficult to apply. In Abney,
the irreparable injury was clear. The double jeopardy
clause protects a defendant from a second trial not just
from multiple punishment. Abney was asserting a right
to be free from any trial on the charge filed. Appellate
review of this claim after the conviction would clearly
come too late to protect his rights.
The question of irreparable injury was a little more
difficult in Helstoski. Congressman Helstoski claimed
that the indicting grand jury heard evidence of his legis-
lative acts in violation of the Speech or Debate Clause.
He was claiming a right not to be tried because the indict-
ing grand jurors were poisoned by evidence that he was
privileged not to have them consider. He could not assert
a right to be free from any prosecution on the charges
brought. In theory at least, the government might have
presented its evidence without proof of his legislative acts
to another grand jury and obtained an indictment for the
same offenses. Thus, Helstoski makes it clear that irre-
parable injury may exist even when a criminal defendant
is not claiming a right to be free from trial under any
circumstances. It is enough if the claim is of a right
to be free from trial as the case is then constituted. |
One of the basic rights guaranteed to citizens is that
they will not find themselves facing trial in federal court
for an infamous crime based only on the decision of a
prosecutor or a judge. Every citizen is entitled to the
independent judgment of a group of his peers that the fed-
eral charges are well-founded before he may be forced to
11
defend before a petit jury. Branzburg v. Hayes, 408
U.S. 665, 686-88 (1972); Ex parte Bain 121 US. 1 (1887).
Two weeks after the Court of Appeals issued its opinion
in Garner, it issued an opinion in a case where the question
was the pretrial appealability of a claim that a criminal
defendant was faced with trial on an infamous crime with-
out the buffer of a grand jury indictment. The case is
entitled United States v. Yellow Freight System, Inc., ......
F.2¢ ......, Nos. 79-1665 and 1666 (9th Cir. Oct. 17, 1980).°
Yellow Freight is a criminal prosecution of two cor-
poratious. One corporation was charged with giving and
the other with receiving rate concessions in violation of
the Elkins Act, 49 U.S.C. §41(1), (3) (1976). The prose-
cution was brought by information charging fifty counts.
The corporations asserted that the prosecution was for
infamous crimes and moved to dismiss because of the
lack of an indictment. The trial court held the crimes
were not infamous and denied the motion. The Court of
Appeals concluded that the order denying the motion was
immediately appealable. On the question of irreparable
injury, the court said simply that the rights of the cor-
porate defendants could not be adequately protected by
a post-conviction appeal because their claim was of a
right to be free from prosecution and not merely free
from conviction. The defendants in Yellow Freight were
not claiming they could never be prosecuted for the Elkins
Act violations. They were only claiming the right not
to be prosecuted without indictment, as the case was then
constituted. The decision of the Court of Appeals is en-
tirely consistent with this Court’s opinion in Helstoski.
»
*~
’ The opinion has not vet been reported and is set out in full in
the appendix.
12
If a grand jury is given a fair opportunity to carry
out its function of judgment independent of prosecutor
and court, its decision to charge is largely unreviewable.
United States v. Costello, 350 U.S. 359 (1956). But it
must be given that fair opportunity to perform its funce-
tion. The Fifth Amendment provides not merely the right
to indictment. It provides a right to indictment returned
by an informed and unbiased grand jury. United States
v. Dionisio, 410 U.S. 1, 16-17 (1973); Wood v. Georgia,
370 U.S. 375, 390 (1962); Stirone v. United States, 361
U.S. 212, 218-19 (1960).
A prosecutor presenting a case to a grand jury can
easily subvert their independence. When a grand jury
is lied to, misled, or otherwise poisoned by the predatory
tactics of the government’s prosecutor, the function of
the indictment process is lost. See United States v.
Samango, 607 F.2d 877 (9th Cir. 1979); United States v.
Serubo, 604 F.2d 807 (3d Cir. 1979); United States v.
Basurto, 497 F.2d 781 (9th Cir. 1974); United States v.
Gold, 470 F. Supp. 1336 (N.D. Ill. 1979). The petitioners
were complaining of just these sort of predatory tactics
in the instant case. Their claim was that the indictment
process was a sham and no better than no indictment at
all. To be consistent with this Court’s opinion in Helstoski,
the Court of Appeals should have taken jurisdiction over
the petitioners’ appeals.
IV. Dealing With Dilatory Appeals
The appeals in this case were dismissed because of the
earlier decision in Garner. The per curiam opinion in
the instant case merely states that the petitioners failed
to adequately distinguish their case from Garner. This
case and Garner were both pending in the Court of Appeals
at the same time. Garner is a poor vehicle for determin-
13
ing whether a claim that a defendant has been deprived of
his Fifth Amendment right to indictment by an informed
and unbiased grand jury should be subject to pretrial
appellate review.
The Court of Appeals in Garner virtually conceded the
existence of all three criteria previously established by
this Court for ‘‘collateral’’ orders appealable pretrial.
The opinion expresses no disagreement with the defen-
dant’s argument that the trial court’s decision was a com-
plete and final determination of his claim of grand jury
irregularities nor with his argument that the issue was
separate from the question of the issue for trial—his
guilt or innocence. The opinion stated that the issue of
appealability turned on the third criteria, the question of
irreparable injury.
In discussing the third criteria, Garner recognized that
the Fifth Amendment creates a right not to be tried absent
an indictment returned by an informed and unbiased grand
jury acting independent of the prosecutor. The opinion
does not suggest that this is an interest that can be ade-
quately protected by a post-conviction appeal. Instead,
the opinion rejected pretrial appealability because of its
‘‘pragmatic’’ conclusion that the claim made by Garner
could be raised in every criminal case.
The Garner opinion characterized the claim made by the
defendant there as an assertion that the evidence presented
{o the indicting grand jury was inadequate and incompe-
tent because it was hearsay in nature. Once the issue was
characterized in this fashion, the outcome was inevitable.
Criminal defendants cannot challenge federal indictments
on the ground that the evidence presented to the indicting
yrand jury was inadequate or incompetent because it was
hearsay. Costello vy. United States, supra. So long as the
14
grand jurors are neither biased nor misinformed, their
decision that the evidence they heard was sufficient in
quantity and quality is unreviewable. The characteriza-
tion of the issue settled the question of irreparable injury.
A eriminal defendant claiming only about hearsay evi-
dence before the grand jury can make no claim of irre-
parable injury. He can make no claim of injury at all.
Because of its characterization of the claim as one which
was obviously frivolous, the Court of Appeals in Garner
was led to ignore a basic principle that must be the start-
ing point for the resolution of the question of appealability.
In order to determine whether a particular issue is col-
lateral and appealable pretrial, a court must start with
the assumption that the appellant’s motion in the trial
court was well-founded and entitled him to relief. The
question of jurisdiction cannot be resolved by considering
the merits of the issue raised. ‘‘ Appeal rights cannot
depend on the facts of a particular case.’’ l/nited States
v. McDonald, 435 U.S. 850, 857 n.6 (1978), quoting Carroll
v. United States, 354 U.S. 394, 405 (1957). It is only after
the question of jurisdiction is resolved in favor of appeal-
ability upon the premise that the merits of the claim are
sound that the court can consider the merits of the claim.
The issues raised by the petitioners in this case are of a
different character than the issue described in the Garner
opinion. These petitioners are complaining of perjured
testimony, of a deliberate misrepresentation to the indict-
ing grand jury that it would hear a complete summary of
the evidence before the prior grand juries, of unsworn
1estimony from the government prosecutor, of commentary
laced with insult, insinuation and innuendo, and of re-
peated misinstructions on basic principles of law. As-
suming, as a court must do in determining the issue of
15
jurisdiction, that all of these abuses occurred, the irre-
parable injury that results from the denial of pretrial
review is substantive, concrete and immediate.
The ‘‘pragmatic’’ concern that led the Court of Appeals
in Garner to decide against appealability was a belief that
every criminal defendant could raise a claim like Garner’s
thus raising the specter of a flood of frivolous pretrial
appeals which would seriously disrupt the processing of
criminal cases in the trial courts. The type of issues raised
by the petitioners in the instant case are not of a sort that
could be raised by many criminal defendants prior to trial.
The motions filed by the petitioners to dismiss the indict-
ment were predicated on concrete examples of the grossest
sort of abuse of the grand jury process. They were able
to make these claims only after they had obtained access
to the transcripts of all of the proceedings before the in-
dicting grand jury and the transcripts of the testimony
before the prior grand juries. Access to a complete set of
grand jury transcripts prior to trial is not common in
most criminal cases. Even in those cases where access
to grand jury transcripts is provided, the petitioners as-
sume that colorable claims of the kind of predatory tactics
by the government’s prosecutor that were involved in this
case will be a rare event.
In Abney v. United States, this Court directed that
frivolous claims are to be controlled by establishing screen-
ing procedures and not by denying jurisdiction over pre-
trial appeals to a whole category of claims. 431 U.S. at
662 n.8. Courts of Appeal have effectively used such tech-
niques for this purpose. In United States v. Burt, 619
F.2d 831 (9th Cir. 1980), a panel of the Ninth Circuit Court
of Appeals confirmed an order of the trial court (con-
eededly appealable pretrial) four days after the notice
16
of appeal was filed. In United States v. Barham, 608
F.2d 602 (5th Cir. 1979), the Court disposed of a pre-
trial appeal on a double jeopardy claim by reviewing the
memoranda and affidavits filed in the trial court in a con-
ference telephone call with counsel for the parties. The
trial court order was affirmed five days after the notice
of appeal was filed. In //nited States v. Lynch, 598 F.2d
132 (D.C. Cir. 1978), cert. denied, 444 U.S. 846 (1979),
the Court of Appeals heard oral argument on motions for
summary reversal and summary affirmance two weeks after
the notice of appeal was filed.
The Court of Appeals for the Ninth Circuit has estab-
lished a process for dealing with frivolous pretrial appeals.
In a memorandum dated July 7, 1980, addressed to all
United States Attorneys and federal public defenders, the
Clerk of the Court of Appeals for the Ninth Circuit out-
lined a procedure for expedited treatment of pretrial ap-
peals in criminal cases through the emergency motion
process that is provided for in Ninth Circuit Rule 6(h).
The prosecutor in the instant case attempted to use this
process to obtain summary relief. The attempt was not
a serious one, however.
The government’s ‘‘emergency’’ application to dismiss
the instant appeals consisted of a two page motion and a
three page affidavit. The affidavit did no more than state
the prosecutor’s conclusion that the appeals were frivolous
and taken for purposes of delay. Counsel for the defen-
dants, who were spread across the country from one coast
to the other, were notified by regular mail delivery rather
than by telephone. The submission by the government
prosecutor did not include the telephone numbers for
counsel for the defendants as required by the local rule.
No memorandum of law was filed. None of the moving
17
papers, responses, and legal memoranda filed in the trial
court were supplied. The prosecutor did not even provide
the Court of Appeals with a copy of the trial court’s writ-
ten opinion denying the motions.
The events in this case do not demonstrate that an
expedited process for dealing with pretrial appeals in
criminal cases is unworkable. The reason for the unin-
formative nature of the prosecutor’s ‘‘emergency’’ mo-
tion was, we think, obvious. The prosecutor simply did
not honestly believe that the appeals could be denominated
frivolous and taken only for purposes of delay. The fail-
ure of a government prosecutor to use available procedures
for expediting consideration of pretrial appeals is a ground
for ignoring the directions in Abney to determine the ques-
tion of appealability under an assumption that frivolous
claims can be weeded out.
V. Conclusion
Many of the issues that are brought to this Court are
of a sort which can best be decided after a series of
decisions in the lower courts have considered the issue un-
der various sets of factual circumstances. A sound judg-
ment may be more possible after there exists a body of
varying factual circumstances that put flesh on the bare
bones of the issue. The issue presented in this case is
not of that character. The question of jurisdiction must
be determined under the assumption that the petitioners’
claim in the trial court was well-founded. Beginning with
that assumption, the factual predicate for the issue of pre-
trial jurisdiction is that a criminal defendant has been
deprived of his Fifth Amendment protection of indictment
by an unbiased and informed the grand jury through the
predatory tactics of a government prosecutor. The factual
predicate will not alter the next time the issue arises.
18
The issue is ripe for decision now. The decision of the
Court of Appeals abandons important constitutional pro-
tections to the interest of expediency in a manner rejected
by prior opinions of this Court. For those reasons, these
petitioners respectfully request the Court issue a writ
of certiorari.
Respectfully submitted,
JamMes M. SHELLOW
JAMES M. SHELLOW
222 East Mason Street
Milwaukee, Wisconsin 53202
(414) 271-8535
Attorney for Aladdin
Hotel Corporation
THOMAS D. DECKER
55 East Monroe Street
Chicago, Illinois 60603
(312) 263-4180
Attorney for Petitioner Linton
OSCAR B. GOODMAN
520 South Fourth Street
Las Vegas, Nevada 89101
(702) 384-5563
Attorney for Petitioner Tindell
Attorney for
Aladdin Hotel Corporation
And on behalf of counsel
for petitioners Linton, Webbe,
Kennedy, Tindell, and Piotrowski
ALBERT J. KRIEGER
1428 Brickell Avenue
Miami, Florida 33131
(305) 377-0802
Attorney for Petitioner Webbe
V. DeVOE HEATON
362 E. Carson Avenue
Las Vegas, Nevada 89101
(702) 384-5563
Attorney for Petitioner Kennedy
JAMES J. TWITTY
9601 Wilshire Boulevard
Penthouse
Beverly Hills, Cal. 90210
(213) 273-5540
Attorney for Petitioner Piotrowski
APPENDIX
I. Opinions and Orders in This Case
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
(December 1, 1980)
UNITED STATES OF AMERICA,
Appellee,
vs. Nos. 80-1548 to
LEE LINTON, SORKIS J. WEBBE, 80-1555, and
FRED L. KENNEDY, ROBERT C. 80-1564
TINDELL, ALADDIN HOTEL CORPORATION,
DENNIS PIOTROWSKI, DEL WEBB
CORPORATION, and JAMES C. COMER, OPINION
Appellants.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., District Judge, Presiding
Argued and submitted November 10, 1980
Before: GOODWIN and SCHROEDER, Circuit Judges,
and HARDY,* District Judge
PER CURIAM
These interlocutory appeals were filed under Abney v.
United States, 431 U.S. 651 (1977). Appellants complain
* The Honorable Charles L. Hardy, United States District Judge
for the District of Arizona, sitting by designation.
App. 2
about the conduct of the prosecutor and the use of perjured
testimony before the grand jury. This court recently held
that motions alleging ‘‘grand jury irregularities’’ are not
appealable. United States v. Garner, No. 79-1802 (9th Cir.
Oct. 6, 1980). Appellants have demonstrated no reason to
distinguish this case from Garner. Thus, we dismiss these
appeals alleging prosecutorial misconduct and the use of
perjured testimony before the grand jury for lack of juris-
diction.
Moreover, we affirm the district court’s dismissal of
Tindell’s vindictive prosecution claim.’ The district court
did not abuse its discretion in concluding that Tindell did
not present sufficient facts to prevail on this issue.
The vindictive prosecution appeal in reality is nothing
more than the post hoc ergo propter hoc fallacy.2. The
proposition asserted is that any nontarget grand jury
witness who claim the privilege against self-incrimination
can thereafter never become a target no matter what the
ongoing investigation uncovers; this is so preposterous on
its face as to require no discussion. This is not a case in
which the prosecutor reindicted on a more serious charge
after the defendant asserted constitutional rights in the
course of an ongoing prosecution. See Blackledge v. Perry,
417 U.S. 21 (1974) ; United States v. Griffin, 617 F.2d 1342
(9th Cir. 1980). There was a total absence of proof in this
case that the prosecutor had proceeded against Tindell be-
cause he had exercised a constitutional right. In the ab-
sence of a strong showing of the causal connection between
'We do not consider appellant Piotrowski's “vindictive prese-
cution” claim because we find that he did not raise it below and
thus we have nothing to review.
* The fallacy is that a subsequent event is an effect of a prior
event.
App. 3
the exercise of the right and the prosecution, there
is no threshold fact to trigger the Griffin’ inquiry, either
in the trial court or upon Abney review in this court.
The district court’s dismissal of Tindell’s vindictive
prosecution claim is affirmed. Each of the other appeals
is dismissed without prejudice to preserving on appeal
from a final judgment any nonfrivolous claim of a denial
of due process.
* United States v. Griffin, 617 F.2d 1342 (9th Cir. 1980).
App. 4
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
(January 20, 1981)
UNITED STATES OF AMERICA,
Appellee,
vs. Nos. 80-1548 to
LEE LINTON, SORKIS J. WEBBE, 80-1555, and
FRED L. KENNEDY, ROBERT C. 80-1564
TINDELL, ALADDIN HOTEL CORPORATION,
DENNIS PIOTROWSKI, DEL WEBB
CORPORATION, and JAMES C. COMER, ORDER
Appellants.
Before: GOODWIN and SCHROEDER, Circuit Judges,
and HARDY,* District Judge
The panel in the above case has voted to deny the peti-
tion for rehearing. Judges Goodwin and Schroeder have
voted to reject the suggestion for rehearing en banc.
The full court has been advised of the suggestion for
en banc hearing, and no judge has requested a vote. Fed.
R. App. P. 35(b).
The petition for rehearing is denied and the suggestion
for rehearing en banc is rejected.
* The Honorable Charles L. Hardy, United States District Judge
tor the District of Arizona, sitting by designation.
App. 5
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
(July 23, 1980)
UNITED STATES OF AMERICA,
Plaintiff,
Vs. CR-R-80-24-ECR
LEE LINTON, et al, ORDER
Defendants.
Defendants Del E. Webb Corporation (DEW), Aladdin
Hotel Corporation (Aladdin), Sorkis J. Webbe, Fred L.
Kennedy, Robert C. Tindell, Dennis Piotrowski, and James
R. Comer have moved to dismiss the indictment in this
action. The principal grounds advanced for these motions
are the Fifth Amendment to the United States Constitu-
tion and the Court’s inherent supervisory power, as re-
cently discussed in United States v. Samango, 607 F.2d
877 (9th Cir. 1979). An extensive hearing has been held
on the motions by the Court which now renders its deci-
sion on the same.
A forty-three count indictment was returned by the
Special Grand Jury on September 4, 1979, after meeting
with the government prosecutor and receiving evidence in-
cluding live oral testimony on five separate occasions. The
indictment avers violations of Title 18 of the United States
Code §§ 371, 1341, 1343, 2314, 1951, 1962(c), as well as
Title 26 § 7201. The crimes alleged to have been committed
App. 6
include mail and wire fraud, interstate transportation of
money with intent to defraud, conspiracy to commit the
three aforesaid offenses, interference with commerce by
extortion, conducting of an enterprise through a pattern
of racketeering activity and several counts of tax evasion
as to defendant Lee Linton only. Defendants DEW and
James R. Comer are only charged in Count I, the con-
spiracy count of the lengthy indictment.
The gravamen of the Government’s case as alleged in
the indictment is that the eight named defendants were
each involved in a scheme whereby portions of the pro-
ceeds from loans made by the Pension Fund of the Team-
sters Union for the purpose of financing a construction
project at the Aladdin Hotel in Las Vegas were secretly
and improperly diverted by the defendants. The defen-
dant DEW was the general contractor in the Aladdin con-
struction project. Lee Linton was project architect for
the Aladdin; Fred L. Kennedy was inspecting architect
for the Pension Fund; Sorkis J. Webbe was general coun-
sel for the Aladdin; James R. Comer was a corporate off-
cer for DEW; while Dennis Piotrowski and Robert C.
Tindell were employees of the Aladdin.
The alleged scheme involved, inter alia, a complex se-
ries of transactions initiated by the defendants whereby
subcontractors on the construction project were induced
to enter into contracts for inflated amounts, thus allowing
for ‘‘kickbacks’’ to be routed directly back to some of the
defendants, as well as to sources designated by some of
the defendants. Such funds were to be paid subsequent to
the submission of pay requests to the Pension Fund osten-
sibly for work completed.
The case was submitted to the indicting grand jury under
what the Government concedes was ‘‘.. . a slightly unusual
App. 7
set of circumstances .. .’’. Investigation in this case in-
volved testimony and evidence presented to a regular
federal grand jury in Tucson, Arizona, as well as regular
and special federal grand juries sitting in Las Vegas over
the course of approximately two-and-one-half years. No
indictments were ever returned by any of the previous
grand juries investigating the case. In June, 1979, the
term of the Las Vegas Special Grand Jury then investi-
gating the matter was about to expire. An extension for
the term of that grand jury was sought by the Govern-
ment but denied by the Court. A new Special Grand Jury
was then impaneled on August 8, 1979. Testimony and
evidence in this matter was then presented to the new
grand jury which returned the subject indictment after
meeting on August 14, 21, 27, 28 and September 4, 1979.
Three Government agents appeared as witnesses before
the indicting grand jury and explained and summarized.
the evidence and testimony of the some 150 witnesses who
had appeared before the prior federal grand juries in-
vestigating the case. In addition, Charles Chuckray, Di-
rector of Loan Administration for the Pension Fund, gave
testimony in respect to voluminous records and documents
regarding the subject loan transactions. Transcripts of
testimony of witnesses who appeared before prior grand
juries were made available to the indicting grand jury.
Numerous exhibits were also presented.
It is the position of the defendants that the summary
procedure utilized by tae Government in presenting its
case to the grand jury was so abused as to constitute a
totally unjustifiable manipulation of the indicting grand
jury all to the prejudice of the defendants. This allegedly
manipulative and improper procedure, according to the
movants, was primarily accomplished in two ways:
App. 8
1. By a highly selective and deceptively prejudi-
cial summary of only a fraction of the prior grand
jury testimony and evidence; and
2. Through knowing use of material false testimony
by a Government agent.
Additional grounds submitted by defendants in these mo-
tions will also be addressed.
Here, as in United States v. Samango, 607 F.2d 877 (9th
Cir. 1979), the case relied on most heavily by the defen-
dants in bringing these motions, the defendants contend
«|... that the prosecutor’s behavior was so improper and
prejudicial that it created a biased grand jury.”’
In support of their motions the defendants point to
numerous examples of what is asserted as prosecutorial
misconduct during the course of proceedings before the
indicting grand jury and further have designated several
portions of testimony given before the special grand jury
as false. Among these the major points are that:
1. The Government never informed the indicting
grand jury of a credibility problem with a principal
government witness appearing before a previous
grand jury whose testimony was included in the sum-
maries given. Donald H. Bayles was a former em-
ployee of defendant DEW who was purportedly hos-
pitalized and diagnosed as suffering from depressive
neurosis (acute) and acute paranoid schizophrenia
soon after the events which were the subject of his
testimony occurred.
2. The defendant DEW agreed to pay a finder’s
fee to William Morris, an attorney in Kansas City.
The Government’s presentation implied that the agree-
ment was useless and was designed to hide an unearned
App. 9
commission since the defendant DEW already knew
of the Aladdin project, and that it was not paid simply
because William Morris died. Defendant maintains
that undisputed evidence presented before prior in-
vestigating grand juries was that the purpose of the
agreement was to allow defendant DEW to negotiate
a bid contract with the Aladdin to be general con-
tractor on the construction project without competitive
bidding. Defendant also asserts that a Government
agent deceptively testified before the indicting grand
jury that there were no other serious bidders on the
job.
3. The Government agents testimony deceptively
indicated that more than one finder’s fee agreement
was prepared by the Aladdin and that ‘‘at the time
these documents [for a second finder’s fee agreement ]
were prepared, Donald H. Bayles, house counsel for
DEW, resigned out of conscience.’’
4. Testimony by the Government agent before the
indicting grand jury misleadingly implied that a
$225,000.00 redesign architect fee included in the gen-
eral contractor contract between defendant DEW and
Aladdin was unusual and was intended by the parties
as a means of paying kickbacks. Such testimony also
included the false statement that the redesign archi-
tect fee was included in the contract contrary to the
advice of a DEW legal advisor.
5. Government agent Cohen also falsely testified
that defendant Comer, a corporate officer of DEW,
signed letters of intent to subcontractors which in-
cluded amounts for kickbacks and that DEW submitted
pay requests to the Pension Fund which included
amounts for kickbacks.
App. 10
6. That agent Cohen also falsely testified that
prior evidence submitted showed that $900,000.00 was
diverted to the architect on the job and the general
contractor.
7. The Government misled the indicting grand jury
by presenting summary testimony calculated to have
the grand jury believe that any act by a person pur-
portedly acting on behalf of the corporation was an
act of the corporation without further informing the
grand jury that a corporation need benefit from the
criminal acts of its agents in order to be held crimi-
nally liable.
8. The inclusion of defendant Tindell in the in-
stant indictment is the result of prosecutorial vin-
dictiveness in that subsequent to being told that he
was not then a target of the investigating grand jury,
Tindell appeared and testified before the grand jury
and invoked his Fifth Amendment right against self-
incrimination. The attitude of the Government toward
him then changed and Tindell was indicted along with
the other defendants in this case.
9. The defendants were prejudiced by a general
discussion of organized crime occurring between the
prosecutor and the grand jury immediately prior to
the Government’s presentation of evidence in this
case before the indicting grand jury.
10. The Government prosecutor improperly ap-
peared as an unsworn witness before the indicting
grand jury.
‘‘The Fifth Amendment provides that federal
prosecutions for capital or otherwise infamous
crimes must be instituted by presentments or in-
dictments of grand juries. But neither the Fifth
Amendment nor any other constitutional provi-
App. 11
sion prescribes the kind of evidence upon which
grand juries must act.’’ United States v. Costello,
350 U.S. 359, 361, 76 S.Ct. 406 (1956).
‘(Implicit in the above stated Fifth Amendment provision
is the guarantee that a grand jury which presents or in-
dicts will be fair and unbiased.’’ United States v. Gold, 470
F.Supp. 1336, 1345 (N.D.Il. 1979).
As accurately stated in United States v. Basurto, 497
F.2d 781, 785 (9th Cir. 1974), ‘‘Today, the grand jury re-
lies upon the prosecutor to initiate and prepare criminal
cases ... which come before it.’’ Professor Moore thought-
fully has written that, ‘‘The passive role of the modern
grand jury is perhaps an inevitable function of our com-
plex urban society. Nevertheless, at its best the grand
jury is capable of acting as something more than a rubber
stamp.’’ 8 Moore, Federal Practice, 6.02[1] 6-12 (1976).
‘‘Thus, Costello stands only for the proposition that courts
should not inquire into the substance of the evidence pre-
sented to the grand jury. Courts can still play a role,
however, in ensuring the fairness and independence of
that body.’’ United States v. Leverage Funding Systems,
Inc., 478 F.Supp. 799 (C.D.Calif. 1979).
In recent years the Ninth Circuit has become more will-
ing to review serious allegations involving prosecutorial
misconduct and to dismiss an indictment where such action
is necessary ‘‘to protect the integrity of the judicial pro-
cess.’’ United States v. Chanen, 549 F.2d 1308 (9th Cir.
1977). Such dismissals have been based either on ccnsti-
tutional grounds, United States v. Basurto, supra, or on
the court’s inherent supervisory power, United States v.
Owen, 580 F.2d 365 (9th Cir. 1978), United States v. Sam-
ango, supra, or both, see United States v. DeMarco, 401
F.Supp. 505 (C.D.Calif. 1975), United States v, Roberts,
81 F.Supp. 1385 (C.D.Calif. 1980).
App. 12
It was in the concurring opinion of Judge Hufstedler
in United States v. Basurto, 497 F.2d at 793, that use of
the court’s inherent supervisory power in a context simi-
lar to the instant case was suggested initially in this cir-
cuit where:
‘‘A supervisory rule requiring a prosecutor who learns
before trial that an indictment is based in some ma-
terial way on perjured testimony to seek dismissal of
the tainted indictment would safeguard the grand
jury’s role as mediator between prosecutor and po-
tential defendant.’’
In United States v. Owen, supra, the use of the court’s
supervisory power in such a context involving Governmen-
tal misconduct was adopted so that now ‘‘. . . dismissal is
used as a prophylactic tool for discouraging future Gov-
ernmental impropriety of a similar nature.’’ As later held
by the court in United States v. Samanguv, supra, 607 F.2d
at 884, the Government’s use of perjured testimony is not
uecessary in order to invoke the court’s supervisory power
in that ‘‘The facts of each case determine when Govern-
ment conduct has placed in jeopardy the integrity of the
criminal justice system.”’
While the Supreme Court has not yet announced a gen-
eral rule regarding application of the Court’s inherent
supervisory authority, ‘‘numerous rationales have been
advanced to explain the nature and scope of the somewhat
sparingly used supervisory authority, but it is generally
conceded ‘‘. . . that the courts are primarily concerned
with protecting the judicial process from the stigma of
illegal or unfair government conduct.’ ’’ United States v.
Narciso, 446 F.Supp. 252, 302 (E.D.Mich. 1976).
It is also important to note that the drastic nature of
the harsh remedy provided by the court’s exercise of its
supervisory powers in dismissal of an indictment based on
App. 13
prosecutorial misconduct ‘‘. . . renders it essential that
they not be applied indiscriminately to remedy every
prosecutorial misstep.’’ United Stales v. Baskes, 433 F.
Supp. 799, 806 (N.D.Ill. 1977), accord: United States v.
Dondich, 460 F.Supp. 849 (N.D.Calif. 1978). As such, the
policy of the federal courts is that of reluctance to inter-
fere in the orderly functioning of grand jury proceedings
and the rule in the Ninth Circuit as found in United States
v. Chanen, 549 F.2d 1306 (9th Cir. 1977), is that:
‘‘Nevertheless, given the constitutionally-based inde-
pendence of each of the three actors—courts, prosecu-
tor and grand jury—we believe a court may not exer-
cise its ‘supervisory power’ in a way which encroaches
on the perogatives of the other two unless there is a
clear basis in law and fact for doing so.’’
It is also the law in this cireuit that in order to obtain
a dismissal of an indictment based on serious prosecutorial
misconduct that, ‘‘there be some prejudice to the accused
by virtue of the alleged acts of misconduct.’’ United States
v. Owen, 580 F.2d 365, 367 (9th Cir. 1978).
In United States v. Chanen, supra, 549 F.2d at 1309, the
court also observed that: ‘‘Almost every court dealing
with the issue raised here has confronted a novel set of
facts. The range of prosecutorial conduct capable of in-
spiring allegations of unfairness appears unlimited.’’ Here
as in United States v. Samango, supra, 607 F.2d at 884,
the defendant advances the argument that the cumulative
effect of the acts and indiscretions herein described, ‘‘. . .
none of which alone might have been enough to tip the
scales, operated to the defendant’s prejudice by producing
a biased grand jury.”’
It is significant to note at the outset that both Samango
and Chanen were cases which involved multiple indict-
ments. Although investigation of the instant matter was
App. 14
conducted over a substantial period of time and before
several grand juries, only one indictment was ever pre-
sented and returned. The second indictment in Chamen, as
here, was obtained entirely through use of hearsay evi-
dence and the court found that dismissal was not necessary
in order to preserve the integrity of the judicial process
and to avoid any fundamental unfairness. The facts pre-
sented to the court in both Chanen and Samango differ
materially from the instant case and in the eyes of this
Court the level of prosecutorial misconduct, if it can be
called that, in this case falls somewhere in between the
gross indiscretions presented in Samango which the court
found sufficient to dismiss and those in Chanen which were
not.
The so-called ‘‘credibility problem’’ discussed by the
court in Samango was but one of the elements found there
by way of comparison as not being present in Chanen,
Such a problem does not exist in this case. The defendants
contend that Donald Bayles, one of the Government’s prin-
cipal witnesses who appeared before one of the prior
grand juries, and whose testimony was included in the
summary testimony presented to the indicting grand jury,
was hospitalized and diagnosed as suffering from depres-
sive neurosis and acute paranoid schizophrenia soon after
* the events with regard to which he testified. Apparently
no evidence pertaining to the credibility of Bayles was
ever presented to any of the grand juries which heard the
matters involving this case.
It is well settled that the prosecutor need not present
material bearing on credibility of witnesses appearing be-
fore the grand jury. United States v. Thompson, 576 F.2d
784, 786 (9th Cir. 1978), Loraine v. United States, 396 F.2d
335 (9th Cir. 1969), United States v. Brown, 574 F.2d 1274,
1276 (5th Cir. 1978). In Chanen a potential credibility
App. 15
problem was averted as transcripts of testimony before
previous grand juries was read aloud to the indicting
grand jury but the prosecutor advised the grand jury
that such witnesses had made statements inconsistent with
the transcribed testimony.
Conversely, in Samango, 607 F.2d at 881, transcripts of
the prior testimony of Government witnesses ‘‘were mere-
ly deposited with the grand jury, and the record does not
show how much time the jurors spent with the transcripts
nor whether they read them at all.’’ Upon initially read-
ing the above cited passage from Samango within its con-
text it is easy to interpret disapproval by the Ninth Cir-
cuit of the practice of merely depositing transcripts of
prior grand jury testimony with a grand jury without
either reading such materials aloud or at least giving the
body adequate time to review the contents thereof.
The real danger in Samango, though, is made clear in
the District Court’s opinion, United States y. Samango,
450 F.Supp. 1097 (D.C. Haw. 1978). It was not that the
grand jury returning the second indictment did not read
the deposited transcripts, but the possibility that they
might have been prejudiced and misled by the contents of
such transcripts. Testimony from a witness who had a
long history of drug abuse which the district judge had
found substantial reason to believe unreliable was also
contained in the transcripts deposited with the grand jury
in Samango. These circumstances differ greatly from the
case at bar and this Court finds that the prosecutor was
not obligated to present materials regarding Bayles’
credibility to the indicting grand jury and that the Special
Grand Jury was not overreached or deceived as to the
Government’s summary of Bayles’ testimony before a
prior grand jury.
App. 16
The defendants concede that under Costello v. United
States, supra, 350 U.S. 359 (1956), the Government may
obtain a valid indictment based solely on the hearsay tes-
iimony of its agents. As such, an indictment may be ob-
tained subsequent to only summary testimony being pre-
sented to the indicting grand jury. United States v. Barone,
584 F.2d 118 (6th Cir. 1978), United States v. Gaskill, 491
F.2d 981, 985 (8th Cir. 1974). There being no requirement
for the Government to have presented the transcripts of
the prior grand jury testimony summarized by Govern-
ment agents before the indicting grand jury, the Court
does not find as germane the issues raised by defendants
as to the amount of time, if any, spent in reviewing the
transcripts deposited. This is simply not a case such as
Samango where the court was concerned not with whether
the indicting grand jury might not have read prior grand
jury transcripts deposited but rather the potentially preju-
dicial effects which might have resulted from the grand
jury’s actually having read the contents of such tran-
scripts. As stated in Costello, ‘‘Neither the Fifth Amend-
ment nor any other constitutional provision prescribes the
kind of evidence upon which grand juries must act.’’
Of course, this finding does not affect our adherence to
the long line of cases which recognizes the duty of good
faith on part of the prosecutor with respect to the court,
the grand jury and the defendant. See United States v.
Basurto, supra, 479 F.2d at 786. The Court further recog-
nizes, however, that the danger of creating a biased grand
jury through a false or misleading summary of prior grand
jury testimony is greater in a case where transcripts of
the prior testimony is neither read aloud to or provided
for review to the indicting grand jury. Neither does this
finding affect the Court’s present inquiry as to whether
the specific instances designated by the defendants or this
App. 17
motion constitute prejudicial misconduct on the part of
the prosecutor which had the cumulative effect of creating -
a biased grand jury.
The defendants maintain that the testimony of the Gov-
ernment agent regarding the finder’s fee agreement be-
tween defendant DEW and St. Louis attorney William
Morris was calculatedly presented so as to imply that the
agreement was intended to serve no useful purpose and
was created to disguise unearned compensation as the de-
fendant DEW had learned of the Aladdin job well in ad-
vance of entering in the agreement. A portion of the tes-
timony by Government agent Jeff Cohen currently under
attack follows:
Q. Mr. Cohen, thank you for reading the letter.
That purports, then, to be a letter memorializing a
finder’s fee for finding Del Webb Corporation as the
general contractor and assisting in negotiations pay-
able to a William Morris; is that correct?
A. That’s correct.
Q. In your investigation, did you find any signifi-
cant services performed by Mr. Morris or his law
firm with respect to locating the Del E. Webb Corpo-
ration in negotiating the contract on their behalf?
A. No, sir, to the contrary. In light of the memo
that I just read prior to this agreement, it would ap-
pear that the Del Webb Corporation was well aware
of this project almost six months prior to this agree-
ment.
DEW asserts that unanimous prior grand jury testi-
mony by DEW employees established that the finder’s fee
agreement was made strictly for the purpose of obtaining
the job for DEW as general contractor on a negotiated
contract rather than a competitive bid basis. DEW con-
tends that the reason why the finder’s fee was never paid
was not because attorney Morris died, as stated in the
App. 18
Government’s summary testimony, but because the general
contractor for the Aladdin job was obtained on a competi-
tive bid basis.
It appears that the evidence presented on these points
before prior grand juries was not unanimous. While a
prosecutor has a duty to present to a grand jury evidence
which clearly negates guilt, United States v. Phillips Pe-
troleum Co., 435 F.Supp. 610 (N.D.Okla. 1977), the Gov-
ernment is not obligated to sift through all the evidence
to find statements or documents that might be exculpa-
tory. Loraine v. United States, supra, 396 F.2d 335, United
States v. Mandel, 415 F.Supp. 1033 (D.C.Md. 1976), ‘‘The
prosecutor does not have a duty to present defendant’s
version of the facts.’’ United States v. Olin Corporation,
465 F.Supp. 1120 (W.D. N.Y. 1979).
Similarly, and for the same reasons, the bulk of defen-
dant’s contentions regarding Government testimony as to
the motive and propriety for the inclusion of a clause in
the general contract between the defendants Aladdin and
DEW providing for a $225,000.00 ‘‘redesign fee’’ to be
paid to the project architect, defendant Linton, are not
significant. The Court does find, however, that the ;state-
ment made by agent Cohen before the grand jury that the
redesign clause was placed in the general contract ‘‘con-
trary to the advice of Del E. Webb Corporation’s legal
advisors,’’ made at the conclusion of the presentation to
the indicting grand jury was not based in fact.
Finally, the Court examines two other instances where
summary testimony eilcited by the Government before the
indicting grand jury contained substantial misstatements
of fact. Both of these instances occurred during agent
Cohen’s second appearance before the indicting grand jury,
where just prior to presenting the indictment the Govern-
ment sought to summarize the criminal acts with which
App. 19
each defendant was being charged. Agent Cohen stated
that ‘‘James R. Comer, [vice-president of Del E. Webb]
signed certain letters of intent which when executed, fur-
thered the scheme to defraud the Fund.’’ He also testified
that ‘‘Facts gathered to date indicate that the Aladdin
Hotel Corporation participated in diverting approximate-
ly $900,000.00 to their project architect and general con-
tractor.’’ Contrary to the insistence of defendant, the
Court finds that neither of these statements were made
for the purpose of intentionally deceiving or misleading
the grand jury and taken in toto such remarks do not con-
stitute knowing use of perjured testimony before a grand
jury.
In the second instance a careful reading of the indict-
ment and testimony presented to the indicting grand jury
reveals that the Government neither charged defendant
DEW with nor did it attempt to show that DEW, the gen-
eral contractor received any of the $900,000.00 which the
Government claims was improperly diverted in this case.
More importantly, it is also apparent that this statement
was made during the Government’s summary of acts at-
tributable to the defendant Aladdin not DEW. Given this
context the explanation contained in the affidavit of agent
Cohen filed with this motion is all the more plausible.
Cohen states that he meant to say that the facts indicate
that $900,000.00 was diverted to the project architert and
general counsel (defendant Sorkis Webbe) of the Aladdin,
not the general contractor DEW.
Likewise, Cohen’s statement that a corporate officer of
Webb, Comer, signed letters of intent is an insignificant
and technical misstatement. Evidence presented to the
indicting grand jury showed that Comer did author one
such letter of intent involving a contract with a subcon-
tractor and also that he did initial a separate letter of
intent which was actually signed by a subordinate, Robert
App. 20
Whitacre. Other evidence presented to the grand, PITY ALB. re crssnersnnenn
indicated that Comer signed other documents allegedly
evidencing participation in the underlying fraud scheme.
Although none of the errors and misstatements dis-
cussed above, especially the representation that the archi-
tectural redesign clause was placed in the general contract
against the advice of the defendant’s legal counsel, are to
be commended and can be viewed as anything other than
unfortunate if not inexcusable mistakes, taken together
these alleged errors do not constitute a case of serious
prosecutorial misconduct. In United States v. Scheufler,
599 F.2d 893, 895 (9th Cir. 1978), a Government agent tes-
tified before a grand jury that the defendant had partici-
pated in marijuana and hashish transactions that had
yielded large sums of money for him. In moving to dis-
miss the indictment the defendant alleged that the testi-
mony questioned was improper and prejudicial but the
court found that:
“This testimony of [government agent] Anderson,
even if attributable to the Government, fell far short
of Government misconduct that we have held suffi-
ciently egregious to require dismissal of the indict-
ment.’’
Although it is clear that under Samango prosecutorial
misconduct need not be intentional in order to mandate
dismissal of an indictment the misstatements above dis-
cussed are not, standing alone, sufficient to require a dis-
missal of this action as to defendants DEW and Comer.
This Court finds as did the court in United States v. Var-
gas-Rios, 607 F.2d 831, 835 (9th Cir. 1979), when also faced
with prosecutorial misstatements before a grand jury on
a motion to dismiss that:
‘‘This is not a case in which dehors the misstatements
there was a complete absence of evidence before the
grand jury.’’
App. 21
The issue raised by defendant Aladdin regarding the
aae
its agents in order to be liable in this action is a matter
which should properly be presented to the trier of fact.
The thrust of the defendant’s argument is that since
the Aladdin is responsible for repayment of the sums bor-
rowed from the Pension Fund that it is in fact a victim
of the alleged scheme involving kickbacks paid out of the
loans and diverted for purposes not relating to the con-
struction project. The Government points out that the
Aladdin benefited from the series of transactions ques-
tioned in that it had a highrise addition built. Whether
the Aladdin was a victim or beneficiary of the events in-
volved in this action necessarily involves a determination
of facts and evidence which cannot now be made.
Defendant Tindell’s position that the Government’s in-
clusion of him in the indictment was the result of prosecu-
torial vindictiveness has been well supported by pertinent
authority. Unfortunately, the defendant has only pre-
sented a vague factual background to support this claim.
Thus, under these circumstances, neither the interests of
justice nor the doctrine of ‘‘manifest justice’’ would re-
quire dismissal. Having not been presented with sufficient
facts to decide this issue, defendant Tindell’s claims on
this point are also best left to the trier of fact. See United
States v. Olin Corp., supra, 465 F.Supp. 1120.
Subsequent to receiving transcripts of the prosecutor’s
colloquys with the indicting grand jury the defendants
have now advanced two additional bases to support a find-
ing of prosecutorial impropriety occurring before the in-
dicting grand jury. Firstly, the defendants maintain that
a brief discussion regarding organized crime between the
App. 22
prosecutor and the grand jury, which took place just prior
to when the indicting grand jury began taking evidence in
this case, was extremely prejudicial to them.
“unde reasonable reading of the transcript reveals that the
remarks made by the prosecutor about organized crime,
taken in context, were entirely proper. Having been just
recently impaneled it was logical that one of the grand
jurors would ask the prosecutor for a definition of orga-
nized crime since the Special Grand J ury was impaneled
solely for the purpose of hearing matters presented by the
Las Vegas Strike Force. The remarks by the prosecutor
were made strictly in response to a juror’s question and
were not intended to be applied to this action, which was
then about to be presented. Rather, the prosecutor’s re-
marks and the underlying question were regarding the
general nature of the matters which the Special Grand
Jury would be hearing over the course of its entire term.
It would be difficult indeed to infer prejudice to these de-
fendants in this instance.
Finally, the defendants have also pointed to portions of
the colloquys and transcripts of testimony given before
the indicting grand jury and now contend that the prose-
cutor acted in certain instances as an unsworn witness in
rendering testimonial evidece before the indicting grand
jury. Upon review of the relevant transcripts it is the
court’s view that this claim, too, is unfounded. Due to the
complex nature of this case it is hardly surprising that the
grand jurors frequently asked questions. While in most
instances the prosecutor would attempt to answer, on
several occasions he would instruct the grand juror that
evidence submitted later in the Government’s presentation
would answer the question. Most importantly, it appears
that in instances where the prosecutor did answer, the re-
sponses given consisted of information which was other-
App. 23
wise presented to the grand jury in the from of sworn tes-
timony and documentary evidence and not solely through
the mouth of the prosecutor as the defendants seem to
contend.
It is further apparent that the other points raised by
defendants regarding evidence and testimony presented to
the indicting grand jury as related to alleged misstate-
ments by the prosecutor and Government witness give
rise to questions of fact which will more properly be dealt
with at trial. It is important to remember that an indict-
ment is only an accusation. ‘‘The role of the grand jury is
restricted to a find as to whether or not there is probable
cause to believe that an offense has been committed.’’
United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965).
A motion to dismiss an indictment does not provide a
basis for a court trial of the disputed facts to determine
whether or not the accused person is in fact guilty. Rather,
the question, as posed in this case, is whether there is any
cognizable reason to overcome the presumption of regulari-
ty which attaches to the Grand Jury indictment. Costello v.
United States, 350 U.S. 359 (1956). The more specific
question posed by movants here is whether they were given
the benefit of a fair and unbiased grand jury. Movants
have alleged that improperly prejudicial and selective
summaries of evidence presented to prior grand juries
were the basis of the present indictment and charge for
that reason that the indicting grand jury was not fair
and unbiased. ‘The allegation of prosecutorial miscon-
duct is founded in claimed prejudicial remarks and knowing
use of perjured testimony by the Government.
As earlier stated, it takes a strong and definite show-
ing of such claimed bias and misconduct before an indict-
ment will be upset on the basis of these types of claims.
App. 24
The use of summary evidence before a grand jury, in
and of itself, is proper. United States v. Costello, supra.
However, the grand jury cannot be deceived into believing
it is receiving direct, rather than hearsay, summary evi-
dence.
There are limitations, however, in presentation of sum-
mary evidence. Where summary witnesses are used, a
problem may arise if the summaries are substantially in-
complete. On a general basis the test would seem to be
whether the summary is at least a reasonable overview of
the subject matter of the evidence presented to the prior
grand juries, or is, on the other hand, so outrageously
deficient as to constitute a flagrant abuse so that the sum-
mary has no reasonable relationship to an understanding
of what occurred before the previous grand juries.
More specifically, the test should be that the summary
should not in a substantial way misstate relevant and
crucial evidence to the extent that the grand jury is so
misled that, in reviewing the summary, it cannot be deemed
the fair and impartial body to which the accused is en-
titled.
In this case, while there are some errors in the summary
testimony given, it cannot be said that there is such a
substantial misstatement of the prior evidence that the
indicting grand jury was so misled that it could no longer
be deemed to be fair and unbiased. There were some
things said by the prosecutor to the grand jury which
probably would have been better left unsaid. But these
statements by no means rise to the level of prosecutorial
misconduct. There is no evidence of knowing presentation
of perjured testimony, or of an intentional effort to mis-
lead the grand jury. This case does not constitute a
proper case for invoking the court’s extraordinary power
to dismiss an indictment, either under the Fifth Amend-
App. 25
ment or pursuant to the court’s inherent supervisory pow-
er. Upon consideration of the totality of circumstances
present in this case it is clear that the Government did
not pollute ‘‘the waters of justice’’, Mesarosh v. United
States, 352 U.S. 1, 14, 77 S.Ct. 1 (1956), in presenting this
ease to the indicting grand jury. Dismissal of the indict-
ment herein is simply not necessary, ‘‘to protect the integri-
ty of the judicial process.’’ Of. United States v. Asdrubal-
Herrera, 470 F.Supp. 939 (N.D. Tl. 1979).
IT IS HEREBY ORDERED that the within pending mo-
tions to dismiss the indictment be DENIED.
DATED: July 23, 1980.
/3/ Edward C, Reed
UNITED STATES DISTRICT JUDGE
App. 26
II. Opinions in Related Cases
APPENDIX A.
UNITED STATES of America, Appellee,
v.
Roy Dalton GARNER, Appellant.
No. 79-1802.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Aug. 11, 1980.
Decided Oct. 6, 1980.
Rehearing Denied Nov. 19, 1980.
Appeal from the United States District Court for the
District of Nevada.
Before KILKENNY and FARRIS, Cireuit 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 charg-
ing 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 inter-
state facility in the aid of a racketeering enterprise}.
Appellant filed motions to dismiss the indictment on
three grounds: (a) the indictment violated Garner’s right
*The Honorable Robert C. Belloni, United States District
Judge for the District of Oregon, sitting by designation.
af"
App. 27
to be free from double jeopardy; (b) the indictment vio-
lated the Department of Justice’s policy recognized in
Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.
2d 490 (1960); and (c) there were irregularities 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 sys-
tem 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 viola-
tion of the provisions of 18 U.S.C. §§ 1342 and 1343;
(2) Counts II, IV and VI charge appellant and his ac-
complices 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 appel-
lant with using the telephone to make interstate calls in aid
of racketeering in violation of §§ 1952(a)(2) and (3), and
Count VII charges that one of appellant’s accomplices
transported stolen money in interstate commerce in viola-
tion of 18 U.S.C. § 2314.
ISSUES
(1) Were the denials of the pretrial motions appealable
orders?
(2) Should the indictment be dismissed on double jeop-
ardy grounds?
(3) Whether the policy announced in Petite v. United
States, supra, requires a dismissal of the indictment.
(4) Whether the district court erred in not ordering
disclosure of certain grand jury materials.
App. 28
DOUBLE JEOPARDY CLAIM
Inasmuch as appellant has not been tried, our initial
question is whether the denials of his pretial 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, 97 S.Ct. 2034, 52 L.Ed.2d 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 dis-
tance telephone 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 indictment, also served to support his earlier
‘‘hlue box’’ conviction, his constitutional right not to be
subject to double jeopardy was violated. We disagree. His
earlier conviction was for defrauding the telephone com-
pany. Here he is charged with an entirely different offense,
using the telephone in aid of the racketeering scheme. A\l-
though both offenses undeniably involved common facts—
the use of the 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, 52
S.Ct. 180, 182, 76 L.Ed. 306 (1932), the Supreme Court
App. 29
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 prosecution 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 acitivi-
ty 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 con-
viction. Under the earlier § 1343 charge the government
was required to prove the use of the telephone to aid a
scheme to defraud the telephone 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.
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
App. 30
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 compel the dismissal of a federal prosecution.’’ Umited
States v. Solano, 605 F.2d 1141, 1143 (CAQ9 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 indict-
ment returned on April 26, 1979; (2) disclosure of the
attendance of the grand jurors at each of the sessions;
(3) upon such disclosure to dismiss the indictment upon
the ground that it was returned by grand jurors who did
not hear, evaluate, or deliberate upon the evidence pre-
sented 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 indictment.
Appellant specifically complains that the jurors who in-
dicted 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 recapitu-
lation of the case presented to the first grand jury. Addi-
App. 31
tionally, appellant asserts that the summary was submitted
by a law enforcement 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 indict-
ment because of grand jury irregularities is appealable.
Our jurisdiction is wholly statutory and so we must de-
termine whether the order falls within the terms of the
applicable statute—in this case 28 U.S.C. § 1291.
Section 1291 provides that ‘‘The courts of appeals shall
have jurisdiction of appeals from all final decisions of the
district courts of the United States.’’ A final decision has
long been regarded as a predicate to federal appellate juris-
diction. The finality requirement reflects the congressional
policy to avoid the threats to efficient judicial administra-
tion incident to interlocutory or ‘‘piecemeal’’ appeals. And
‘‘fajdherence to this rule of finality has been particularly
stringent in criminal prosecutions because ‘the delays and
disruptions attendant upon intermediate appeal,’ whicl. the
rule is designed to avoid, ‘are especially inimical to the
efficient and fair administration of the criminal law.’ Dt-
Bellu v. United States, supra, 369 U.S. 121 at 126, 82 S.Ct.
654 at 657.’’ Abney v. United States, 431 U.S. 651, 657,
97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977).
The case with which the finality rule is stated, however,
belies the difficulty of its application. The Supreme Court
has noted that ‘‘{n]o verbal formula yet devised can ex-
plain prior finality decisions with unerring accuracy or
provide an utterly reliable guide for the future.’’ Eisen
v. Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140,
2149, 40 L.Ed.2d 732 (1974). Indeed, the Court’s efforts
to give the rule a ‘‘practical rather than a technical con-
struction’’, Cohen v. Beneficial Industrial Loan Corp., 337
U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949),
App. 32
have on occasion led to some rather curious results. See
e.g., Gillespie v. United States Steel Corp., 379 U.S. 148, 85
S.Ct. 308, 13 L.Ed.2d 199 (1964).
Generally § 1291 requires that an order, to be appealable,
must terminate the proceedings in the district court. Cer-
tain orders, however, which do not constitute final judg-
ments fall within the ‘‘collateral order’’ exception articu-
lated 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 jurisdiction
was premised upon diversity of citizenship. The defen-
dant made a motion to require the plaintiff to post security
for reasonable expenses incurred by the defense as was
required by ja newly enacted New Jersey statute. The dis-
trict court determined that the state statute did not apply
in the federal action and denied the motion. The court of
appeals reversed and ordered the posting of security. The
Supreme Court concluded that the court of appeals had
properly 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 ‘‘tenative, informal or incomplete,’’ in any sense.
337 U.S. at 546, 69 S.Ct. at 1225. 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 con-
ferred by the statute, if it [was] applicable, [would] have
been lost, probably irreparably.’’ Jd. The statute was in-
tended to prevent ‘‘strike suits’’ by requiring security for
payment of reasonable expenses of the action was adjudged
to be unsustainable. The protection this statute afforded
App. 33
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 un-
settled question.’’ Jd. at 547, 69 S.Ct. at 1226.
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 in-
dependent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudi-
eated.’’ Id. at 546, 69 S.Ct. at 1225.
More recently, in Abney v. United States, 431 U.S. 651,
97 S.Ci. 2034, 52 L.Ed.2d 651 (1977), the Court considered
whether a pretrial order denying 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 indeed a ‘‘collateral or-
der’’ within the ‘‘small class of cases’’ that are excep-
tions to the final judgment rule. First, an order denying
a motion to dismiss on double jeopardy grounds is a com-
plete and final rejection, in the trial court, of a defendant’s
double jeopardy claim. Second, a double jeopardy claim
‘‘ig collateral to, and separable from, the principal issue
at the accused’s impending criminal trial, t.e., whether or
not the accused is guilty of the offense charged.’’ Id. at
659, 97 S.Ct. at 2040. Finally, the Court stated that ‘‘the
rights conferred on a criminal accused by the Double
Jeopardy Clause would be significantly undermined if ap-
pellate review of double jeopardy claims were postponed
until after conviction and sentence.’’ Jd. at 660, 97 S.Ct.
at 2040. The double jeopardy clause is, in part, a guar-
antee 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.
App. 34
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’’, 2d.
at 663, 97 S.Ct. at 2042, double jeopardy claims justified
including another class of cases within the ‘‘small class
of cases’’ that satisfy the ‘‘collateral order’’ exception.
The Court acknowledged that ‘‘our hélding may encourage
some defendants to engage in dilatory appeals.... How-
ever, we believe that such problems of delay can be obviated
by rules or policies giving such appeals expedited treat-
ment. 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.’’ Id. at
662 n. 8, 97 S.Ct. .at 2042 n. 8.°
1Some courts have emphasized the requirement that the issue
involved be a serious and unsettled question. In Weight Watchers
v. Weight Watchers International, Inc., 455 F.2d 770, 773 (CA 2
1972), 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 of a particular suit.”
The Second Circuit has recently debated the question of whether
Cohen requires that a “collateral order’ involve a serious and un-
settled question. Compare Armstrong v. McAlpin, 625 F.2d 433,
438 439 and n. 11 (CA 2 1980) with 448-451 (Mulligan, J., con-
curring in part and dissenting in part).
2 It should be noted that the Abney court expressly precluded the
possibility of a court of appeals exercising pendent appellate juris-
diction. Each claim in a motion to dismiss must be treated sepa-
rately. A claim is not appealable because brought in conjunction
with a double jeopardy claim. Each claim, in order to be imme-
diately appealable, must independently satisfy the “collateral order”
exception.
App. 35
Perhaps not surprisingly, the short period since the Su-
preme Court’s decision in Abney has been marked by an
increasingly large number of claims that various pretrial
orders are immediately appealable as ‘‘collateral orders.’’
The Supreme Court, in United States v. MacDonald, 435
U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978) rejected an
assertion that a pretrial order denying a defendant’s mo-
tion to dismiss an indictment because of an alleged viola-
tion of his Sixth Amendment right to a speedy trial was a
‘‘final decision.’’ After reemphasizing the importance of
finality to judicial administration, especially in the criminal
context, the Court proceeded to apply the criteria enunci-
ated in Cohen and Abney.
First, the Court noted that the denial of a motion to dis-
miss on speedy trial grounds does not represent a complete
and ‘final rejection, in the trial court, of the defendant’s
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 rele-
vant facts have been developed at trial.’’ Jd. at 858, 98
S.Ct. at 1551. 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 ‘‘col-
lateral’’ to the principal issues at trial. The determination
of a speedy trial claim is not independent of the outcome
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, 98 S.Ct. at 1552. The
App. 36
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,
‘‘ujnlike 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 upheld prior to
trial if it is to be enjoyed at all. It is the delay before
trial, not the trial itself, that offends against the constitu-
tional guarantee of a speedy trial.’’ Jd. at 861, 98 S.Ct.
at 1553.
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 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.’’ /d. at 862,
98 S.Ct. at 1553. The Court concluded its analysis by say-
ing that ‘‘we decline to exacerbate pretrial delay by in-
truding upon accepted principles of finality to allow a de-
fendant whose speedy trial motion has been denied before
trial to obtain interlocutory appellate review.’’ Jd. at 863,
98 S.Ct. at 1554.
In Heistoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61
L.Ed.2d 30 (1979), the Court again considered the scope
of the ‘‘collateral order’’ exception, this time in the con-
text of the speech or debate clause. Helstoski, a United
States Congressman from New Jersey, had moved to dis-
App. 37
miss 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 in-
dictment. 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 rejecting
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. 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 litiga-
tion’s results but also from the burden of defending them-
selves.’ ’’, id. at 508, 99 S.Ct. at 2449, this right would be
lost if Helstoski was exposed to prosecution prior to appel-
late review.
This court has recently held that the denial of a motion
to dismiss an indictment on grounds of vindictive prosecu-
tion is an appealable order. United States v. Griffin, 617
F.2d 1342 (CA9 1980). Griffin involved a straightforward
application 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 froin
prosecution itself, rather than merely the right to be free
from a subsequent conviction. Thus, the vindictive prose-
eution 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.
App. 38
In In re Fendler, 597 F.2d 1314 (CA9 1979), we consid-
ered whether an order denying a petition to conduct a vowr
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
appealable. In Fendler an indictment had yet to be re-
turned and the instant case might appear to be distinguish-
able on that ground. However, the court indicated that
such facts would not be a controlling factor on the ques-
tion 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 appel-
lant, he can raise his claims in a motion to dismiss the
indictment, 28 U.S.C. § 1867(e) and Fed.R.Crim.P. 6(b) (2) ;
and since denial of such a motion is reviewable 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 ap-
pealable double jeopardy claim. In light of Abney’s rejec-
tion 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 ex-
istence of the double jeopardy claim.
App. 39
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 in-
volved 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 irreparably’’ if
immediate appellate review is not available.
The Fifth Amendment provides, in part, that ‘‘No per-
son shall be held to answer for a capital, or otherwise in-
famous 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, 80 S.Ct. 270,
273, 4 L.Hd.2d 252 (1960).
‘<¢ The institution [grand jury] was adopted in this
country, and is continued from considerations 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
unfounded accusation, whether it comes from govern-
ment, 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 un-
less 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 care-
ful deliberation, under the solemnity of an oath, that
there is good reason for his accusation and trial.’ ’’
App. 40
Ex parte Bain, 121 U.S. 1, 11, 7 S.Ct. 781, 786, 30 L.Ed.
849 (1886).
The right to an indictment by a grand jury is, therefore,
intended to insure that one is not ‘‘held to answer”’ for an
infamous crime unless an independent body standing be-
tween the prosecutor and the accused has determined that
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
reindictment. Appellant is asserting a right to be free
from this prosecution because of the alleged grand jury
irregularities. He asserts that later review would be mean-
ingless because at that point he will have been forced to
endure trial without the assurance that the grand jury had
effectively 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 ‘* super-
ficial 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 con-
App. 41
siderations. 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 had determined that, in most
instances, a ‘‘final decision’’ is a predicate to the exercise
of federal appellate jurisdiction. We are convinced that,
especially in the criminal context, the policy against piece-
meal appellate adjudication is sound and that the excep-
tions 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 in-
vitation to include this class of case within the ‘‘small
class of cases’’ that satisfy the ‘‘collateral order’’ ex-
ception.
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, i. e. that it was hearsay evidence—would
be available in nearly every instance.
In Costello v. United States, 350 U.S. 359, 363-4, 76 S.Ct.
406, 409, 100 L.Ed. 397 (1956), the Court rejected such
claims and there said:
‘‘[p]etitioner urges that this Court should exercise its
powers to supervise the administration of justice in
the federal courts and establish a rule permitting de-
fendants to challenge indictments on the ground that
they are not supported by adequate or competent evi-
dence. No persuasive reasons are advanced for estab-
lishing such a rule. It would run counter to the whole
history of the grand jury institution, in which laymen
conduct their inquiries unfettered by technical rules.
Neither justice nor the concept of a fair trial requires
App. 42
such a change. In a trial on the merits, defendants
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 ln re Grand Jury Proceed-
ings (Johanson), F.2d (CA3 1980), rejected 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 and remedied after a con-
viction had 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 convic-
tion could be reversed if at a later stage we conclude the
grand jury was tainted) the order is not reviewable im-
mediately as a collateral order.’’ Jd. at .........
Mr. Justice Blackmun’s observations in MacDonald,
supra, are equally applicable here. Like a speedy trial claim,
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 appealable. To allow an im-
mediate appeal under these circumstances would bring
about a disruption of the efficiency of the criminal justice
system that we are unwilling to countenance.
App. 43
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 motions to dismiss
on 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 subsequently convicted.
Accordingly, the appeal on the latter two issues is dis-
missed.
IT IS SO ORDERED.
App. 44
APPENDIX B
UNITED STATES of America,
Plaintiff-Appellee,
v.
YELLOW FREIGHT SYSTEM, INC.,
Defendant-Appellant.
UNITED STATES of America,
Plaintiff-Appellee,
V.
DUNCAN CERAMICS, INC., a corporation,
Defendant-Appellant.
Nos. 79-1665, 79-1666.
Argued and Submitted Aug. 11, 1980.
Decided Oct. 17, 1980.
Appeal from the United States District Court for the
Mastern District of California.
Before KILKENNY and FARRIS, Circuit Judges and
BELLONI,* District Judge.
FARRIS, Circuit Judge:
Yellow Freight System, Inc., and Duncan Ceramics, Ine.,
appeal the district court’s denial of various pretrial mo-
* Honorable Robert C. Belloni, U. S. District Judge for the District
of Oregon, sitting by designation.
App. 45
tions to disn ss informations filed against them. Appellee
("nited States moves to dismiss the appeals for lack of
appellate jurisdiction. We dismiss in part and affirm in
part.
On November 30, 1977, the United States served Yellow
Freight and Duncan Ceramics with summonses and filed
informations alleging that on fifty occasions Yellow Freight
knowingly gave and Duncan Ceramics knowingly received
rate concessions on interstate shipments of goods. The
Elkins Act proscribes rate concessions and imposes a pen-
alty of $1000 to $20,000 fine and up to two years’ im-
prisonment in a penitentiary for granting or receiving rate
concessions. 49 U.S.C. § 41(1), (3) (1976).
On April 3, 1979, Yellow Freight and Duncan Ceramics
filed a set of motions in the district court to dismiss the
informations. In part these motions claim that the Elkins
Aet does not apply to motor carriers. In addition, how-
ever, this set of motions alleges that the informations are
procedurally insufficient because (1) the crimes alleged are
infamous and therefore must be prosecuted by grand
jury indictment and (2) in any event the prosecution may
not proceed without a preliminary determination of prob-
able cause. The district court denied these motions.
' The Act of October 17, 1978, Pub.L. No. 95-483, 92 Stat. 1337,
recodified the substantive provisions involved in this case. Prior
to this Act, the Elkins Act was codified at 49 U.S.C. §§ 41-43
(1976), but title 49 was not enacted as codified. The penal pro-
visions of the Elkins Act now appear at 49 U.S.C. § 11903. Because
the crimes charged allegedly took place before the 1978 Act, we
use the 1976 codification in referring to the Elkins Act. The 1978
Act did not, however, purport to make any changes in substantive
law. See Act of Oct. 17, 1978, Sec. 3(a), Pub.L. No. 95-473,
92 Stat. 1337, 1466.
App. 46
I. Appellate Jurisdiction
Yellow Freight and Duncan Ceramics seek to base ap-
pellate jurisdiction on 28 U.S.C. § 1291 (1976), which
grants appeals of right from ‘‘final decisions of the district
courts.’’ Specifically, they attempt tto characterize the
denial of their second set of motions as a ‘‘collateral
order’’ appealable as a final decision under the rationale
of Cohen v. Beneficial Industrial Loan Corp., 337 U.S.
541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949).
As applied to criminal pretrial orders, this rationale
confers appellate jurisdiction when:
1. The pretrial order fully disposed of the appel-
lants’ claim;
2. The appellants’ claim is collateral to, and separable
from, the principal issue of guilt or innocence; and
3. The order involves an important right that would
be lost if review had to await final judgment.
See Abney v. United States, 431 U.S. 651, 658-62, 97 S.Ct.
2034, 2039-41, 52 L.Ed.2d 651 (1977); United States v.
Griffin, 617 F.2d 1342, 1344-46 (9th Cir. 1980). Inquiry
into the immediate appealabality of a particular pretrial
order must focus upon each claim asserted. Thus im-
mediate appealability of one of the defendants’ claims will
not confer pendent appellate jurisdiction over defendants’
other claims. Abney v. United States, 431 U.S. 651, 662-63,
97 S.Ct. 2034, 2041-42, 52 L.Ed.2d 651 (1977).2 Accord-
* Citing C. A. Wright, A. Miller & E. Cooper, Federal Practice
and Procedure § 3937, at 58 n.5 (Supp. 1980), Duncan Ceramics
contends that Abney imposed no blanket prohibition of pendent
appellate jurisdiction but merely held that pendent review was in-
(footnote continued)
App. 47
ingly, the threshold issue of appellate jurisdiction must
be addressed for each of the three claims asserted by the
defendants, Yellow Freight and Duncan Ceramics.
A. Elkins Act Contention.
Yellow Freight and Duncan Ceramics claim that the
particular provisions of the Elkins Act asserted in this
case do not apply to motor carriers is not immediately
appealable. The issue is ‘‘plainly not ‘collateral’ in any
sense of that term.’’ Abney, 431 U.S. at 663, 97 S.Ct. at
2042. It ‘‘may be reviewed effectively, and, if necessary,
corrected if and when a final judgment results.’’ Id. We
accordingly grant the motion to dismiss the appeal as to
the defendants’ substantive claim.
B. Indictment Clause Contention.
Yellow Freight and Duncan Ceramics contend that they
have been charged with an infamous crime for which
they may not, under the indictment clause of the Fifth
‘ nendment, be ‘‘held to answer’’ except upon grand jury
indictment. This claim meets all three of the standards
for immediate appealability. Denial of defendants’ motion
completely and finally determined their claim in the trial
court. Allowing the trial to progress so that facts may
develop will not facilitate consideration of their claim.
Cf. United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547,
(footnote continued)
appropriate in that case. Subsequent cases have not adopted so
narrow a reading of Abney. See, e.g., United States v. MacDonald
435 U.S. 850, 857 n.6, 98 S.Ct. 1547, 1551 n.6 56 L.Ed.2d 18
(1978) ; United States v. Klein, 582 F.2d 186, 196 (2d Cir. 1978),
cert. denied, 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38 (1979) ;
United States v. Cerilli, 558 F.2d 697, 699, 700 (3d Cir.), cert.
denied, 434 U.S. 966, 98 S.Ct. 54 L.Ed.2d 452 (1977).
App. 48
56 L.Ed.2d 18 (1978) (no immediate appeal of denial of
speedy trial claim under Sixth Amendment because de-
termination of merits of claim depends on circumstances
surrounding trial). Second, the entitlement of Yellow
Freight and Duncan Ceramics to an indictment before
prosecution is wholly collateral to and independent of the
issue of their guilt on the underlying charges. Finally,
the claim involves a right that would be irretrievably lost
if the defendants were forced to stand trial before appeal.
One purpose of the indictment clause is to shield defen-
dants from unwarranted prosecutions for serious crimes.
Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 1373,
8 L.Hd.2d 569 (1962); Stirone v. United States, 361 U.S.
212, 218 & n.3, 80 S.Ct. 270, 273 & n.3, 4 L.Kd.2d 252
(1960) ; Gaither v. United States, 413 F.2d 1061, 1066 (D.C.
Oir. 1969); United States v. Cox, 342 F.2d 167, 170 (Sth
Cir.), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d
700 (1965); see also United States v. Basurto, 497 F.2d
781, 785 (9th Cir. 1974). Like the contentions held im-
mediately appealable in Abney and Griffin, therefore, this
claim ‘‘involves a right to be free from prosecution itself,
rather than merely to be free from subsequent conviction.’’
Griffin, 617 F.2d at 1345; see Abney, 431 U.S. at 660-62,
97 S.Ct. at 2040-41, we therefore deny the motion to dis-
miss with respect to the claim.®
8 In re Fendler, 597 F.2d 1314 (9th Cir. 1979), does not require
a different result. That case involved a denial of a petition to con-
duct a voir dire of grand jurors regarding possible bias. Such
attacks on the procedure followed by a grand jury are ordinarily
not immediately appealable. The present case, on the other hand,
involves a claim that trial itself cannot proceed except according to
a grand jury indictment.
The issue of the immediate appealability of indictment clause
claims was presented, but apparently not decided, in Helstoski v.
(footnote continued)
App. 49
C. Due Process Contention.
Finally, Yellow Freight and Duncan Ceramics contend
that, even if they may be prosecuted by information, they
are entitled to a preliminary hearing on the issue of prob-
able cause. They assert that the trial itself will deprive
them of protected liberty and property interests and
argue that due process requires a hearing. This conten-
tion fulfills the first two elements of the Abney test. It
has been fully disposed of by the trial court and is sepa-
rable from the principal issue of guilt or innocence. At
first blush, it also appears to meet the third element of the
Abney test. If review must await final judgment, the
defendants will have been subjected to a trial from which
they assert they are constitutionally immune.
Since Abney, many appeals from pretrial orders have
come before us. In these appeals defendants have
demonstrated remarkable ability to frame almost any
argument to meet the Abney test. Because the filing of
an appeal allowable under Abney deprives the trial court
(footnote continued)
Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979). A
former congressman was charged by indictment with soliciting money
from aliens by return for introduction of private bills in Congress.
The indictment referred to legislative acts of the congressman. He
claimed that trial according to the indictment would violate the
speech or debate clause and that trial not according to the indictment
would violate his indictment clause “right to be tried only on an in-
dictment in precisely the form issued by a grand jury.” Jd. at 505,
99 S.Ct. at 2448. The Supreme Court, characterizing the claim
as arising under the speech of debate clause, ruled that his claim
was immediately appealable. Jd. at 506-08, 99 S.Ct. at 2448-49.
Helstoski does not squarely stand for the proposition that indictment
clause claims are immediately appealable because the Court may have
assumed that trial would proceed according to the indictment.
App. 50
of jurisdiction to proceed with trial, Moroyoqui v. United
States, 570 F.2d 862, 864 (9th Cir. 1977), cert. denied, 435
U.S. 997, 98 S.Ct. 1651, 56 L.Ed.2d 86 (1978), defendants
delay their trial when they pursue Abney appeals. So
that defendants need not completely forego speedy trial
to seek vindication of the rights protected by Abney, we
must adopt procedures to dispose of these appeals as quick-
ly as fair consideration permits.
We therefore hold that, in order to show that his or her
claim involves an important right requiring immediate
review, a defendant must first identify a valid principie
of law that can apply to his or her case. See United States
v. Perkins, 433 F.2d 1182, 1183, 1186 (D.C. Cir. 1970)
(dismissing Abney-type appeal because issues posed were
insubstantial). The defendant must then show that the
principle confers an important right and that the right
can only be preserved by immediate review. Failing
such showings, an Abney appeal will not survive a motion
for dismissal for lack of appellate jurisdiction. ~
Despite defendants’ artful pleading, their final claim
involves no important right that would be lost if we refuse
immediate review. Although a defendant arrested or
otherwise restrained has a Fourth Amendment right to
a preliminary hearing on the issue of probable cause, ab-
sent restraint a prosecution may be maintained without
any finding of probable cause. See Gerstein v. Pugh, 420
U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), where after
holding that an arrested defendant is entitled to a judicial
determination of probable cause independent of the pro-
secutor’s decision to file an information, id. at 117-18, 95
S.Ct. at 864-65, the Court continued:
In holding that the prosecutor’s assessment of prob-
able cause is not sufficient alone to justify restraint
App. 51
of liberty pending trial, we do not imply that the ac-
cused is entitled to judicial oversight or review of the
decision to prosecute. Instead, we adhere to the
Court’s prior holding that a judicial hearing is not
prerequisite to prosecution by information. Beck v.
Washington, 369 U.S. 541, 545, [82 S.Ct. 955, 957, 8
L.Ed.2d 98] (1962); Lem Woon v. Oregon, 229 US.
586, [33 S.Ct. 783, 57 L.Ed. 1340] (1913).
Id. at 118-19, 95 S.Ct. at 865.4 Thus, defendants have iden-
tified no interest cognizable under the due process clause.
Because defendants assert a claim based upon a legal
theory foreclosed by the Supreme Court, their claim does
not involve an ‘‘important right,’’ 431 U.S. at 658, 97
S.Ct. at 1039, the third element of the Abney test is not
met, and the district court’s denial of this claim is not
immediately appealable.°
+See also 420 U.S. at 125 n.26, 95 S.Ct. at 869 n.26 (“Because
the probable cause determination is not a constitutional prerequisite
to the charging decision, it is required only for those suspects who
suffer restraints on liberty other than the condition that they appeer
for trial.”) (emphasis added) ; United States v. Pickard, 207 F.2d
472, 474-75 (9th Cir. 1953) (absent arrest, prosecution by infor-
ination may proceed without oath or affirmation of probate cause) ;
Church v. United States, 412 F.2d 836, 838 (9th Cir. 1969) (same).
but cf. United States v. Millican, 600 F.2d 273, 276-77 (5th Cir.
1979) (holding that a summons is sufficient restraint to invoke
probable cause requirement, where failure to appear on summons
may result in issuance of warrant), cert. denied, 445 U.S. 915, 100
S.Ct. 1274, 63 L.Ed.2d 598 (1980).
* The rule we establish today may apply in other circumstances.
For example, it might permit dismissal of Abney appeals founded on
statutes not in force or on overruled cases. We find it unnecessary
to define the contours of this rule, other than to state that defendants’
indictment clause contention is not. As future cases affect the merits
(footnote continued)
App. 52
Il. Prosecution of Corporations by Information
Yellow Freight and Duncan Ceramics contend that be-
cause they stand charged with offenses punishable by two
years in a penitentiary, they may be proecuted not by in-
formation, but only by grand jury indictment. The Fifth
Amendment states that ‘‘[n]o person shall be held to an-
swer for... [an] infamous crime, unless on... indictment
of a Grand Jury.’’ Relying on United States Supreme
Court pronouncements that infamous crimes are those
‘‘punishable by imprisonment in a penitentiary,’’ e.g.,
Green v. United States, 356 U.S. 165, 183, 78 S.Ct. 632, 642,
2 L.Ed.2d 672 (1958), defendants contend that they have
been charged with infamous crimes and may not be pro-
secuted except on grand jury indictment.
In response, the United States notes that both defen-
dants are corporations and therefore not amenable to im-
prisonment. It accordingly contends that this prosecu-
tion may proceed by information alone. See United States
v. Macklin, 389 F.Supp. 272, 273 (E.D.N.Y.), other hold-
ings aff’d, 523 F.2d 193 (2d Cir. 1975).
We agree with the United States that potential con-
finement in a penitentiary of some violators of a criminal
(footnote continued)
of particular claims, of course, the immediate appealability of those
claims may change.
We have recently adopted an internal procedure for expedited
disposition of Abney appeals on their merits under 9th Cir. R. 6(h).
United States v. Miranda-Parra, --.- F.2d ----, ----, ---- (9th
Cir. 1980) ; see also Abney, 431 U.S. at 662 n.8, 97 S.Ct. at 2042
n.&. Using this procedure, we disposed of the appeal in Miranda-
Parra in less than five weeks. Although the 6(h) procedure seems
venerally preferrable, our ruling today ensures that a motions panel
of this court can dispose of frivolous Abney appeals even when 6(h)
has not been invoked.
rg App. 53
statute does not render all violations of that statute
‘tinfamous.’’ Congress may impose different punishments
upon different classes of criminals. It has done so in the
provisions of the Elkins Act here in question: the Act by
its terms limits penitentiary confinement to individuals.®
We do not, however, rest our holding upon this express
recognition by Congress of practical limitations on punish-
ment for corporate crime. Where, as in this case, a crim-
inal statute makes violations punishable by imprisonment
in a penitentiary, corporate violations of that statute are
not automatically made infamous crimes by the possible
infliction of such punishment on individuals.
Defendants argue that such a result completely deprives
corporations of the right to grand jury protection. We
disagree. The possibility of imprisonment in a penitentiary
is only one index of whether a crime is infamous.’ Aside
“While the Elkins Act imposes a $1000 to $20,000 fine on
‘‘{e]very person or corporation” who knowingly gives or receives a
concession, the provision imposing imprisonment applies only to
“any person, or any officer or director of any corporation.” 49
U.S.C. § 41(1) (1976). Thus, by its own terms the imprisonment
provision of the Elkins Act does not apply to corporations.
7 The punishment attached to a crime is relevant to the determi-
nation of infamy because it indicates the character of the crime as
perceived by Congress and the public. See Mackin v. United
States, 117 U.S. 348, 351, 352-53, 354. 6 S.Ct. 777, 778, 779, 780,
29 L.Ed. 909 (1886) (in light of common perception, crimes punish-
able by confinement to a penitentiary are infamous); Ex parte
Wilson, 114 U.S. 417, 427-28, 5 S.Ct. 935, 940, 29 L.Ed. 89 (1885)
(for similar reasons, crimes punishable by confinement at hard labor
are infamous). In the case of crimes by individuals, the possibility
of imprisonment for more than one year, and therefore in a peni-
tentiary, remains the most reliable index of infamy. See United
States v. Driscoll, 612 F.2d 1155, 1156 (9th Cir. 1980). It would
be extremely rare for a crime by an individual that did not carry
infamous punishment to be made infamous by some other factor.
App. 54
from test of infamy that hinge on the possibility of punish-
to which corporations are not ainenable, the Supreme Court
has occacsionally suggested other incidents of infamy.
For example, in Ex parte Wilson, 114 U.S. 417, 423-24, 5
S.Ct. 935, 938, 29 L.Ed. 89 (1885), the Court suggested
that the Fifth Amendment may require indictment for
‘‘erimes infamous in their nature, independently of the
punishment affixed to them.’ In Wilson the Court also
indicted that a congressional declaration of infamy might
suffice. Id. at 426, 5 S.Ct. at 939; see also Umited States
v. Waddell, 112 U.S. 76, 82 5 S.Ct. 35, 38, 28 L.Ed. 673
(1884) (remanding to the circuit court to determine the
‘‘very serious question whether this crime is not made
an infamous one by the language of the statute,’’ which
precluded violators from holding office; considered sepa-
rately from punishment, the Court thought the language
was ‘‘an indelible disgrace affixed to the party convicted’’) ;
Ullmann v. United States, 350 U.S. 422, 451 n.5, 76 S.Ct.
497, 513 n.5, 100 L.Ed. 511 (1956) (Douglas, J., dissent-
ing). In addition, crimes punishable at common law by
civil disabilities were deemed infamous. The indictment
clauses of several state constitutions are interpreted to
require indictment for such crimes, e.g., Elkin v. Common-
wealth, 269 Ky. 6, 8, 106 S.W.2d 83, 84 (1937), and at
least one federal court has suggested that such crimes are
infamous within the meaning of the Fifth Amendment,
Hunter v. United States, 272 F. 235, 238 (4th Cir.), cert.
denied, 257 U.S. 633, 42 S.Ct. 47, 66 L.Ed. 407 (1921).
Since we hold that imposition of potential imprison-
ment on individuals violating a criminal statute does not
&’ But see Weeks v. United States, 216 F. 292, 298 (2d Cir.)
(infamy depends solely on character of punishment), cert. denied,
235 U.S. 697, 35 S.Ct. 199, 59 L.Ed. 431 (1914); Low v. United
States, 169 F. 86, 89 (6th Cir. 1909) (same; dictum).
App. 55
of itself make corporate violations of the same statute
infamous crimes, the only remaining question is whether
another factor renders the crimes charged in this case
infamous. The crimes charged are not made infamous by
the penalties attached to them, because those penalties
are only fines. A fine, regardless of its amount, cannot
be infamous punishment. See United States v. Armored
Transport, Inc., slip op. at 323-24, ........ _¢ Seaee :
peice (9th Cir. 1980). Nor is this crime inherently in-
famous The class of inherently infamous crimes, if it ex-
ists at all, would encompass only the most serious mala in
se. Regulatory crimes, such as those charged in this case,
are not inherently infamous.
The only perceptible basis for holding these crimes in-
famous would be that Congress has declared these crimes
infamous by attaching the penalty of imprisonment in a
penitentiary to similar crimes committed by individuals.
The history of the statutes involved precludes such a basis.
Congress enacted the Elkins Act in 1903. In place of the
present provisions for penitentiary sentences, the original
Act provided:
In all convictions . . . for offenses under [various acts
regulating interstate commerce] . . . no penalty shall
be imposed on the convicted party other than the fine
prescribed by law, imprisonment wherever now pre-
scribed as part of the penalty being hereby abolished.
Elkins Act, ch. 708, § 1, 32 Stat. 847, 847 (1903). The
present provision was added three years later by the
Hepburn Act, ch. 3591, § 2, 34 Stat. 584, 588 (1906). Al-
though the Hepburn Act originated in the House, its res-
toration of the penalty of imprisonment was the result of
a Senate amendment. The floor debate on the amendment
indicates that the amendment was designed to enforce
App. 56
more effectively the ban on concessions, rather than to
brand the giving of rebates with a special mark of in-
famy.® The violations charged here are not infamous.
crimes. We affirm the district court’s denial of defen-
dants’ motion to dismiss.
In summary, we grant the motion to dismiss this appeal
with respect to the defendants’ Elkins Act and due process
claims. With respect to the defendants’ indictment clause
claim, the motion to dismiss the appeal is denied; because
the violations charged are not infamous crimes, however,
we affirm the district court’s rejection of that claim.
Dismissed in part and affirmed.
®40 Cong. Rec. 6620-28 (1906). There were actually three com-
peting proposals on the Senate floor to reestablish the penalty of
imprisonment. Throughout the floor debate, various speakers
stressed the deterrent purpose of the penalty, thus negating any in-
ference that Congress intended the penalty as an expression of the
infamous character of the crime. But see 40 Cong. Rec. 6625 (state-
ment of Sen. Daniel) (suggesting a retributive purpose). Any
assertion that the amendment rendered granting of concessions an
infamous crime is further undercut by the fact that all three proposals
denominated the offense a misdemeanor.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.