June 17, 2019

Tenth Circuit: Collateral Order Doctrine Did Not Apply; Appeal Dismissed for Lack of Jurisdiction

The Tenth Circuit Court of Appeals published its opinion in United States v. Tucker on Tuesday, March 11, 2014.

A grand jury indicted Michael Scott Calhoun, Tommy Wayne Davis, and William Jeffrey Tucker (“Defendants”) on 60 counts of wire fraud, mail fraud, and conspiracy to commit wire and mail fraud. The indictment was based on Mr. Calhoun’s grand jury testimony in which he incriminated himself, Mr. Davis, and Mr. Tucker. Mr. Calhoun testified upon the advice of his counsel at the time, Tom Mills, who was paid by Texas Capital Bank, the alleged victim of the fraud.

After Mr. Calhoun secured new counsel, the Defendants moved to quash the indictment and suppress Mr. Calhoun’s grand jury testimony, contending the indictment was obtained in violation of the Fifth Amendment Indictment Clause, Mr. Calhoun’s Fifth Amendment privilege against self-incrimination, and Mr. Calhoun’s Sixth Amendment right to effective assistance of counsel. The district court denied the Defendants’ motion. Defendants appealed under the “collateral order” exception to the final judgment rule.

The Tenth Circuit held the collateral order doctrine did not apply and dismissed the appeals for lack of jurisdiction.

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949) recognizes a small class of district court orders that determine claims of right separable from, and collateral to, rights asserted in an action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. To fall within this small class, a district court order must satisfy three requirements: it must [1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the case, and [3] be effectively unreviewable on appeal from a final judgment. The Supreme Court has instructed that courts should use the exception to the finality requirement sparingly in the criminal context. Very few motions to dismiss an indictment—even if founded on a valid constitutional right—will give rise to interlocutory appellate jurisdiction.

Applying the Cohen factors, the parties agreed that the first two requirements were satisfied. The district court’s order (1) conclusively determined that (2) the indictment was substantively valid—an important conclusion that was separate from the Defendants’ guilt or innocence. The crucial question centered on the third collateral order requirement: whether the district court’s order was “effectively unreviewable” on appeal from final judgment.

The court concluded it was not. Defendants failed to demonstrate that they could not secure a remedy after trial on appeal from a final judgment. Here, Defendants could proceed to trial and, if convicted, raise the same challenges they presently brought in hopes of having their convictions overturned.

The Tenth Circuit DISMISSED the appeal for lack of jurisdiction.

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