MIDLAND ASPHALT CORP., ET AL., PETITIONERS V. UNITED STATES OF AMERICA No. 87-1905 In the Supreme Court of the United States October Term, 1987 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit Brief for the United States TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Statement Discussion Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 3-17) is reported at 840 F.2d 1040. The order of the district court denying petitioners' motion to dismiss the indictment (Pet. App. 1-2) is not yet reported. JURISDICTION The judgment of the court of appeals was entered on February 9, 1988. A petition for rehearing was denied on March 25, 1988 (Pet. App. 18). The petition for a writ of certiorari was filed on May 20, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether an order denying a motion to dismiss an indictment for an alleged violation of Fed. R. Crim. P. 6(e) may be appealed, prior to a final judgment of conviction, under the collateral order doctrine. STATEMENT 1. Petitioner Midland Asphalt Corporation, Inc. (Midland) is a corporation engaged in the sale of liquid bituminous material. Petitioner Albert C. Litteer is Midland's president and part owner. On January 23, 1987, a federal grand jury in the Western District of New York returned an indictment charging petitioners with conspiring to allocate contracts and rig bids for the sale of liquid bituminous material to the State of New York, in violation of Section 1 of the Sherman Act, 15 U.S.C. 1. Pet. App. 5. Petitioners thereafter moved to dismiss the indictment. They alleged (1) that the indictment was insufficient under Fed. R. Crim. P. 7(c), because it purportedly failed to define the geographical area in which the crime took place; (2) that the grand jury's failure to vote separately as to each prospective defendant violated petitioners' right not to be tried except upon indictment by a grand jury; and (3) that the government had violated Fed. R. Crim. P. 6(e) by disclosing details of the grand jury investigation to the public. More specifically, petitioners claimed that the government had violated Rule 6(e) by filing with the court, in connection with a separate case, a legal memorandum that reflected matters occurring before the grand jury in the present case. Pet. App. 5; Pet. 4. 2. On September 30, 1987, the district court denied all but petitioners' Rule 6(e) motion (9/30/87 Order 1-6). The court found (id. at 2-3) that "the 'place' element of the alleged criminal violations is adequately set forth in paragraph 15 of the indictment." It also held (id. at 5) that "(n)either Rule 6 of the Federal Rules of Criminal Procedure, nor the case law in the Second Circuit, require the Grand Jury to vote on each defendant separately." With respect to petitioners' Rule 6(e) motion, however, the court directed the parties to submit additional evidence bearing on the allegations in that motion (9/30/87 Order 3-4). On December 18, 1987, the district court denied petitioners' motion to dismiss the indictment under Rule 6(e) (Pet. App. 1-2). The court found (id. at 2) that the government had not revealed matters occurring before the grand jury when it filed its legal memorandum. It noted (ibid.) that virtually all the information in the government's memorandum was based on documents and proceedings that had previously been made public and that the government therefore had not violated Rule 6(e) by incorporating those materials in the memorandum that it submitted to the court. 3. The court of appeals dismissed petitioners' appeal from the district court's orders (Pet. App. 3-17). The court first declined (id. at 9) to review the district court's September 30 order, explaining that petitioner had failed to file a timely notice of appeal from that order. /*/ The court next held (id. at 10-17) that the December 18 order was not appealable prior to a final judgment of conviction. It rejected petitioners' contention that, in light of this Court's decision in United States v. Mechanik, 475 U.S. 66 (1986), an order denying a motion to dismiss an indictment under Rule 6(e) is "effectively unreviewable on appeal from a final judgment" (Pet. App. 6) and is therefore immediately appealable as a collateral order under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). The court acknowledged that the circuits have taken "a number of different approaches to the appealability issue" (Pet. App. 15). After canvassing those approaches, the court stated (id. at 16) that it was persuaded by the dissenting opinion in the Ninth Circuit's decision in United States v. Benjamin, 812 F.2d 548 (1987). The court explained (Pet. App. 16) that whereas the Rule 6(d) violation in Mechanik affected only the grand jury's capacity to make a fair determination of probable cause, Rule 6(e) serves the "very different function" of "protect(ing) society's interest in keeping secret the identity of grand jury witnesses and persons under investigation" and "safeguard(ing) the interests of society and of the defendant in receiving a fair trial." Applying "the logic expressed in the (Benjamin) dissent" (ibid.), the court of appeals stated that "unlike a violation of Rule 6(d), a violation of Rule 6(e) is not rendered harmless simply because the defendant is convicted" (ibid.). Accordingly, the court reasoned, petitioners would not be foreclosed from pressing their Rule 6(e) claim after a verdict of conviction. "By the same token," the court concluded, "a Rule 6(e) challenge does not qualify for immediate review under the collateral order doctrine" (Pet. App. 16-17 (footnote omitted)). DISCUSSION Petitioners ask this Court to review the court of appeals' decision that an order denying a motion to dismiss an indictment for an alleged violation of Rule 6(e) is not appealable as a collateral order under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). We agree with the court of appeals that the collateral order doctrine does not apply in this case. Nevertheless, because the courts of appeal have taken very different approaches in this and closely related issues, and because the appealability of grand jury claims prior to verdict presents an issue of substantial and recurring practical importance, we agree that the case warrants review by this Court. 1. As petitioners note (Pet. 7), the courts of appeals have taken differing approaches to the appealability of claims of grand jury error. The Ninth Circuit, in United States v. Benjamin, 812 F.2d 548 (1987), and United States v. Dederich, 825 F.2d 1317 (1987), has held that all grand jury claims may be raised on interlocutory appeal. The court reached that conclusion after first finding that Mechanik bars any post-conviction appeal challenging errors committed in connection with a grand jury investigation; in the absence of a right to post-conviction review, the court held, a defendant is entitled to raise such claims on appeal before trial. In contrast, the First Circuit has held that the denial of a motion to dismiss on grounds of grand jury error may not be reviewed before trial, even if the claim could not be raised after trial because of Mechanik. See United States v. LaRouche Campaign, 829 F.2d 250 (1987). The Tenth Circuit, in United States v. Taylor, 798 F.2d 1337 (1986), has also refused to entertain an interlocutory appeal from the denial of a motion to dismiss on grounds of grand jury abuse, but for a different reason: in the Tenth Circuit's view, claims of serious grand jury error may be raised after conviction notwithstanding Mechanik; accordingly, there is no need to permit such claims to be the subject of pretrial appeals. The Second Circuit adopted a substantially similar position in the present case. 1. We believe that the court of appeals was correct in holding that an order denying a motion to dismiss an indictment under Rule 6(e) is not immediately appealable under the collateral order doctrine. But the appealability issue, which may arise in every case involving claims of grand jury error, is of considerable and recurring practical importance. Because there is now a firmly established split in the circuits on the proper approach for courts to take in resolving challenges to grand jury actions, we believe that it would be appropriate for the Court to review the issue at this time. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General CHARLES F. RULE Assistant Attorney General KENNETH G. STARLING Deputy Assistant Attorney General JOHN J. POWERS, III LAURA HEISER Attorneys JUNE 1988 /*/ The petition does not present that issue.