United States v. Harry B. Helmsley, Leona M. Helmsley, Joseph v. Licari and Frank J. Turco, Harry B. Helmsley and Leona M. Helmsley, 866 F.2d 19, 2d Cir. (1989)
United States v. Harry B. Helmsley, Leona M. Helmsley, Joseph v. Licari and Frank J. Turco, Harry B. Helmsley and Leona M. Helmsley, 866 F.2d 19, 2d Cir. (1989)
United States v. Harry B. Helmsley, Leona M. Helmsley, Joseph v. Licari and Frank J. Turco, Harry B. Helmsley and Leona M. Helmsley, 866 F.2d 19, 2d Cir. (1989)
2d 19
John R. Wing, New York City (Harris J. Yale, Weil, Gotshal & Manges, New
York City, of counsel for defendant-appellant Harry B. Helmsley, Gerald A.
Feffer, James A. Bruton, III, Eva M. Petko, Williams & Connolly, Washington,
D.C., of counsel for defendant-appellant Leona M. Helmsley), for defendantsappellants Harry B. Helmsley and Leona M. Helmsley.
James R. Devita, Asst. U.S. Atty., S.D.N.Y., New York City (Rudolph W.
Giuliani, U.S. Atty., S.D.N.Y., Cathy Seibel, Celia Goldwag Barenholtz, Asst.
U.S. Attys., S.D.N.Y., New York City, of counsel), for appellee.
On April 14, 1988, a grand jury in the Southern District of New York handed
up an indictment charging Harry B. and Leona M. Helmsley, as well as Joseph
V. Licari and Frank J. Turco, in 47 counts with tax evasion, false tax returns,
mail fraud, extortion and conspiracy in violation of 26 U.S.C. Secs. 7201
(1982) and 7206(1) and (2) (1982), and 18 U.S.C. Secs. 2 (1982), 371 (1982),
1341 (1982) and 1951 (1982). Due to the Helmsleys' prominence, a great deal
of media attention focused upon the grand jury's investigation during the period
leading up to the indictment. As a result of the publicity, defendants Harry and
Leona Helmsley filed a motion seeking dismissal of the indictment or, in the
alternative, a hearing into the effect of this publicity upon the grand jury
considering this case. They alleged that the government was responsible for
leaking information to the press concerning matters occurring before the grand
jury in violation of Fed.R.Crim.P. 6(e)(2).
5
District Judge John M. Walker, Jr. denied their motion by order entered July
29, 1988,1 and the Helmsleys brought this appeal. Based upon an upcoming
trial date of September 26, 1988, the government moved for expedited
consideration of the appeal. This motion was granted on August 1, 1988, and
oral argument was heard in this matter on September 14, 1988. In their reply
brief on appeal, the Helmsleys requested that if this court determined that an
interlocutory appeal was unwarranted, the court treat this appeal as a petition
for a writ of mandamus. An order was issued on September 14, 1988
dismissing the appeal for want of appellate jurisdiction and denying mandamus.
This opinion sets forth our reasons.
The general rule is that appeal may be taken to a court of appeals only from
"final decisions of the district courts." 28 U.S.C. Sec. 1291 (1982). A collateral
order, however, is reviewable by means of interlocutory appeal if 1) it
conclusively determines the disputed question; 2) it resolves an important issue
completely separate from the merits of the action; and 3) it is effectively
unreviewable on appeal from a final judgment. United States v. Midland
Asphalt Corp., 840 F.2d 1040, 1042 (2d Cir.) (citing Coopers and Lybrand v.
Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 245758, 57 L.Ed.2d 351 (1978)),
cert. granted, --- U.S. ----, 108 S.Ct. 2869, 101 L.Ed.2d 905 (1988). In
examining the appealability of a ruling with respect to asserted violations of
Fed.R.Crim.P. 6(e), this court, after full consideration of the collateral order
rule, has specifically held that such orders are not subject to interlocutory
appeal. Midland Asphalt, 840 F.2d at 1046. The role of Rule 6(e) in the grand
jury system is to protect society's interest in the secrecy of the grand jury.
Because a Rule 6(e) violation is not necessarily rendered harmless by a
subsequent conviction, in which event it would be subject to post-trial review, a
ruling on such an asserted violation "does not qualify for immediate review
under the collateral order doctrine." Id.
10
The Helmsleys argue that the decision in Midland Asphalt is inconsistent with
the Supreme Court's decision in United States v. Mechanik, 475 U.S. 66, 106
S.Ct. 938, 89 L.Ed.2d 50 (1986). In Mechanik, the Court reviewed a violation
of Fed.R.Crim.P. 6(d), which prohibits anyone other than the person testifying,
attorneys for the government, interpreters when needed and a stenographer
from being present while the grand jury is in session. The Supreme Court
determined that any error in allowing two agents of the Drug Enforcement
Administration to testify in tandem before the grand jury was rendered
harmless by a subsequent conviction. Id. at 70, 106 S.Ct. at 941-42.
11
12
14
[A]dherence
to the rule of finality is particularly important in criminal cases,
"because 'the delays and disruptions attendant upon intermediate appeal,' which the
rule is designed to avoid, 'are especially inimical to the effective and fair
administration of the criminal law.' " Abney v. United States, 431 U.S. 651, 657, 97
S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977) (quoting DiBella v. United States, 369
U.S. 121, 126, 82 S.Ct. 654, 658, 7 L.Ed.2d 614 (1962)).
15
Midland Asphalt, 840 F.2d at 1042. This case does not fall within the limited
class of exceptions to the rule of finality in criminal cases which have been
accorded judicial recognition, see id., and we would not be justified in creating
a further exception.
16
With respect to the Helmsleys' request for a hearing concerning the allegations
of prosecutorial misconduct, we note that the Department of Justice is
investigating the matter, and that Judge Walker has ordered that he be furnished
with both a status report concerning that investigation and "a complete report of
the investigation detailing the scope of the investigation, the findings and its
conclusions." We agree with that procedure, and our dismissal of this
interlocutory appeal is not to be considered a condonation of any prosecutorial
misconduct that may have occurred,4 an indication that it should be considered
lightly, or a preclusion of any remedy that may appear appropriate upon
completion of the investigation.
17
The Hon. Con. G. Cholakis, United States District Judge for the Northern
District of New York, sitting by designation
More recently, the Supreme Court made clear that a pre-conviction challenge
may be made on the ground that errors in grand jury proceedings affected the
decision to indict. Bank of Nova Scotia v. United States, --- U.S. ----, 108 S.Ct.
2369, 101 L.Ed.2d 228 (1988). Since the motion to dismiss the indictment was
granted by the district court in Nova Scotia, that case does not address the
appealability of a denial of such a motion
The court assumed such violations arguendo. Friedman, 854 F.2d at 582