MIDLAND ASPHALT CORPORATION AND ALBERT C. LITTEER, PETITIONERS V. UNITED STATES OF AMERICA No. 87-1905 In the Supreme Court of the United States October Term, 1988 On 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 Introduction and summary of argument Argument: An order denying a motion to dismiss an indictment under Fed. R. Crim. P. 6(e) is not subject to interlocutory review under the collateral order doctrine A. An order denying a Rule 6(e) motion to dismiss an indictment is not subject to interlocutory review under the collateral order doctrine 1. The collateral order doctrine is a narrow exception to the final-judgment rule 2. The collateral order doctrine has been applied with particular strictness in criminal cases 3. Under these principles, an order denying a motion to dismiss an indictment under Fed. R. Crim. P. 6(e) is not subject to interlocutory appeal B. The collateral order doctrine should not be expanded to cover an order denying a Rule 6(e) motion to dismiss an indictment 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 petitioner's motion to dismiss the indictment (Pet. App. 1-2) is unreported. 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, and was granted on June 27, 1988. The jurisdiction of this Court rests on 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 immediately appealed, prior to the entry of a final judgment of conviction and sentence, under the collateral order doctrine. STATEMENT 1. Petitioner Midland Asphalt Corporation (Midland) is 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 and to certain counties in western 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 on several grounds. Among their claims was the contention that the government had violated Fed. R. Crim. P. 6(e) by disclosing details of the grand jury investigation to the public. Petitioners claimed that the government had violated the Rule by filing with the court, in connection with a separate case, a legal memorandum that revealed matters occurring before the grand jury in the present case. Pet. App. 5; Pet. 4. Petitioners' Rule 6(e) allegations arose from a parallel civil action commenced by petitioner Midland and another company on May 15, 1985. In re Grand Jury Subpoenas to Midland Asphalt Corp. and Krantz Asphalt Co., Civ. 85-633E (W.D.N.Y. Feb. 12, 1985). In that action, Midland sought a court order requiring the government to reimburse it for the costs of complying with certain grand jury subpoenas duces tecum issued during the ongoing bid-rigging investigation. In Midland's motion papers, the company's Secretary, Bradford H. Banks, stated that Midland had been served with a grand jury subpoena "in connection with an industry-wide investigation being conducted by the Antitrust Division of the United States Department of Justice throughout the Western District of New York" (Banks Apr. 26, 1985, Affidavit para. 2). /1/ Banks asserted that compliance with the subpoenas would prove "extremely onerous," and he therefore requested $18,000 "to cover the expenses of complying with the subpoenas" (id. para. 8). Midland's motion was not submitted under seal. The district court denied Midland's motion on June 26, 1985. On July 18, 1985, Midland filed a second motion in its civil action. This time, the company sought to require the government to retain its rough and final notes of witness interviews and to compel the government to affirm or deny any interception of wire or oral communications of Bradford Banks. In its motion papers, Midland stated, among other things, that "Bradford Banks has been served with a subpoena and is presently scheduled to appear before the grand jury on July 23, 1985." Motion at 2. The second motion was likewise not made under seal. /2/ The government thereafter filed a responding memorandum, in which it "agree(d) to retain any rough notes and final reports which it prepares of any interviews conducted by Antitrust Division attorneys or other government personnel in connection with this investigation of persons presently or formerly engaged in the road paving business in the State of New York." July 31, 1985, Memorandum at 1. On April 14, 1986, the defendants in a separate criminal case arising from bid-rigging activities in the Western District of New York made a similar motion to require the government to preserve its rough interview notes. United States v. Allegany Bitumens, Inc., Crim. No. 86-59C. In response, the government filed a legal memorandum, stating in pertinent part that it had "already made a representation to the Court that * * * it will preserve its rough notes." May 5, 1986, Memorandum at 11. The government attached to that memorandum a copy of the memorandum that it had submitted in Midland's civil action, in which the government had made the original commitment to preserve its interview notes. In moving to dismiss the indictment in the present case, petitioners claimed that by attaching the earlier memorandum to the responsive papers in the Allegany Bitumens case the prosecutor had disclosed "matters occurring before the grand jury," in violation of Fed. R. Crim. P. 6(e). In particular, petitioners contended that a statement on page 1 of the July 31, 1985, memorandum -- referring to an "investigation of persons presently or formerly engaged in the road paving business in the State of New York" -- revealed "the nature of the investigation being conducted by the grand jury." Petitioners also identified statements on pages 3 and 5 of the memorandum that purportedly revealed that Midland's Secretary, Bradford Banks, had been subpoenaed to testify before the grand jury. Memorandum in Support of Motion to Dismiss at 3 (Cr. No. 87-18C). 2. 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 explained (ibid.) that petitioners had filed no motion to seal the record in the civil action and that Midland had itself revealed at the October 2, 1985 hearing the fact that Bradford Banks had been subpoenaed as a grand jury witness. 3. The court of appeals dismissed petitioners' appeal from the district court's orders (Pet. App. 3-17). The court held (id. at 10-17) that the district court's December 18 order was not appealable prior to a final judgment. 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 under the "collateral order" doctrine recognized by this Court in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). 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." Accordingly, the court reasoned, "unlike a violation of Rule 6(d), a violation of Rule 6(e) is not rendered harmless simply because the defendant is convicted" (ibid.), and thus 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" (id. at 16-17 (footnote omitted)). INTRODUCTION AND SUMMARY OF ARGUMENT In United States v. Mechanik, 475 U.S. 66 (1986), this Court held that a violation of Fed. R. Crim. P. 6(d) -- in that case, the simultaneous presence and testimony of two government witnesses before the grand jury -- is rendered harmless beyond a reasonable doubt by a subsequent conviction by the petit jury. The Court assumed (Mechanik, 475 U.S. at 69) that the government had violated Rule 6(d), and it acknowledged that such a violation has "the theoretical potential to affect the grand jury's determination whether to indict" (id. at 70). The Court explained, however, that "the petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt" (ibid.). The Court accordingly concluded (ibid. (footnote omitted)) that "(m)easured by the petit jury's verdict, * * * any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt." The courts of appeals have since divided on the question whether an order denying a motion to dismiss an indictment for a violation of Fed. R. Crim. P. 6 is, in light of Mechanik, "effectively unreviewable" after a conviction and, for that reason, subject to interlocutory review under the collateral order doctrine announced in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). The Tenth Circuit in United States v. Taylor, 798 F.2d 1337 (1986), and the court below have held that certain serious grand jury errors may be raised after conviction notwithstanding Mechanik. Accordingly, they have reasoned, there is no need to permit such claims to be the subject of pretrial appeals. In contrast, 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 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 has held, a defendant is entitled to raise such claims on appeal before trial. Finally, the First Circuit in United States v. LaRouche Campaign, 829 F.2d 250 (1987), and the Seventh Circuit in United States v. Daniels, 848 F.2d 758 (1988), have stated 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. A. We agree with the First and Seventh Circuits. Even though a violation of Fed. R. Crim. P. 6(e) is rendered harmless by a conviction after trial, the collateral order doctrine does not entitle a defendant to interlocutory review of an order denying a Rule 6(e) motion to dismiss an indictment. The collateral order doctrine is a "narrow exception" to the final judgment rule. In order for the doctrine to apply, a trial court order must (1) "conclusively determine the disputed question"; (2) "resolve an important issue completely separate from the merits of the action"; and (3) "be effectively unreviewable on appeal from a final judgment." Flanagan v. United States, 465 U.S. 259, 265 (1984) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978) (footnote omitted)). Petitioners' Rule 6(e) claim does not satisfy either the second or third requirement. It does not follow from the fact that a Rule 6(e) error will become harmless after conviction that it is "effectively unreviewable" on appeal, in the sense required by the Court's cases. In this setting, as in others, the fact that a claim will be governed by the harmless error standard on appeal, and that it may be difficult for an appellant to prevail on that claim at that time, does not entitle the appellant to interlocutory review. To the contrary, in criminal cases a claim is ordinarily subject to interlocutory appeal only when it affords the defendant a "right not to be tried" before appellate review takes place. Petitioners enjoy no such right with respect to their Rule 6(e) motion to dismiss. Nor does petitioners' motion involve "an important issue completely separate from the merits of the action." To the contrary, because a violation of Rule 6(e) is rendered harmless by, and thus merges into, a final judgment of conviction, a Rule 6(e) motion to dismiss is not collateral to the determination of a defendant's guilt or innocence at trial. B. The costs of expanding the collateral order doctrine to cover petitioners' claim greatly exceed the benefits. Interlocutory review means delay, and delay in criminal cases imposes substantial and unwarranted costs. On the other hand, there is little reason to believe that creating a novel right to an immediate appeal in Rule 6(e) cases will enable any significant number of erroneously denied claims to be corrected by an appellate court. ARGUMENT AN ORDER DENYING A MOTION TO DISMISS AN INDICTMENT UNDER FED. R. CRIM. P. 6(e) IS NOT SUBJECT TO INTERLOCUTORY REVIEW UNDER THE COLLATERAL ORDER DOCTRINE If petitioners are convicted at trial in this case, their Rule 6(e) claim will be subject on appeal to the harmless error rule in United States v. Mechanik, 475 U.S. 66 (1986). The court below suggested otherwise, reasoning that Rule 6(e) claims -- unlike the Rule 6(d) claim in Mechanik -- serve public policies in addition to ensuring the accuracy of the grand jury's fact-finding, and that Rule 6(e) claims therefore would not be rendered harmless by a conviction. More recently, however, the Second Circuit has taken a different view, applying the rule in Mechanik to a pre-trial publicity claim under Rule 6(e). United States v. Friedman, 854 F.2d 535 (2d Cir. 1988). In our view, the court of appeals' more recent reading of Mechanik is correct: there is no basis for confining the logic of that case to violations of Rule 6(d). Accord, e.g., United States v. Fountain, 840 F.2d 509, 514-515 (7th Cir. 1988); United States v. Hintzman, 806 F.2d 840, 843 (8th Cir. 1986). Moreover, this Court's decision in Bank of Nova Scotia v. United States, No. 87-578 (Apr. 27, 1988), makes clear that, notwithstanding the systemic policies promoted by Rule 6(e), a court of appeals may order the dismissal of an indictment "only 'if it is established that the violation substantially influenced the grand jury's decision to indict,' or if there is 'grave doubt' that the decision to indict was free from the substantial influence of such violations" (Nova Scotia, slip op. 5, quoting Mechanik, 475 U.S. at 78 (O'Connor, J., concurring)). Any such claim of prejudice in the grand jury's charging decision would, of course, be rendered harmless after a conviction. We therefore take as our premise in this case that on appeal from a conviction petitioners' Rule 6(e) claim would be subject to the harmless error rule in Mechanik. Nevertheless, as we show below, the collateral order doctrine does not entitle petitioners to interlocutory review. A. An Order Denying a Rule 6(e) Motion To Dismiss An Indictment Is Not Subject To Interlocutory Review Under The Collateral Order Doctrine 1. The collateral order doctrine is a narrow exception to the final-judgment rule a. Under 28 U.S.C. 1291, the courts of appeals have jurisdiction over appeals "from all final decisions of the district courts * * * except where a direct review may be had in the Supreme Court." "Finality as a condition of review," the Court has often explained, "is an historic characteristic of federal appellate procedure." Cobbledick v. United States, 309 U.S. 323, 324 (1940). See also, e.g., Flanagan v. United States, 465 U.S. 259, 265 (1984); United States v. Hollywood Motor Car Co., 458 U.S. 263, 264-265 (1982); Brown Shoe Co. v. United States, 370 U.S. 294, 306 (1962). As the Court stated in DiBella v. United States, 369 U.S. 121, 124 (1962), "(t)he general principle of federal appellate jurisdiction, derived from the common law and enacted by the First Congress, requires that review of nisi prius proceedings await their termination by final judgment." /3/ And a "final judgment" for this purpose, as the Court recently reiterated, is one that "'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" Van Cauwenberghe v. Biard, No. 87-336 (June 13, 1988), slip op. 4 (footnote and citation omitted); accord Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981); Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978). The final judgment rule serves important purposes in both civil and criminal cases. By consolidating in one appeal all the grounds for challenging a trial court's judgment, the rule avoids delay, promotes efficient judicial administration, and reduces the ability of litigants to harass opponents by engaging in a succession of time-consuming and costly appeals. The final judgment rule also lessens the risk that appellate courts will render abstract rulings on questions of law presented in an insufficiently developed factual context. And it reduces the likelihood that appellate courts will devote time and energy to the resolution of issues that may prove to be immaterial to the ultimate disposition of the case. Most importantly, the final judgment rule gives effect to Congress's determination that litigation is best managed at both the trial and appellate levels if the district courts are free of repeated second-guessing by the courts of appeals during the prejudgment stages of a case. See, e.g., Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 429-430, 434, 436 (1985); Flanagan, 465 U.S. at 263-265; Firestone, 449 U.S. at 374; Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170-171 (1974); Cobbledick, 309 U.S. at 324-326; Catlin v. United States, 324 U.S. 229, 233 (1945). In sum, as the Court stated in the Cobbledick case, 309 U.S. at 326, "finality * * * is the means for achieving a healthy legal system." For these reasons, this Court has long held that "the policy of Congress embodied in (28 U.S.C. 1291) is inimical to piecemeal appellate review of trial court decisions" (Hollywood Motor Car Co., 458 U.S. at 265). b. In the context of criminal prosecutions, Section 1291 contemplates appellate review only following conviction and the imposition of sentence, unless some exception to the final judgment rule applies. See Berman v. United States, 302 U.S. 211, 212 (1937). Since petitioners have not yet been tried, let alone convicted and sentenced, the order denying their Rule 6(e) motion to dismiss plainly is not final in the ordinary sense. The only exception to the usual requirement of finality that may be applicable in this case is the collateral order doctrine, which this Court first articulated in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). There, the Court held that a narrow category of trial court orders that are collateral to the litigation may be immediately appealed if certain stringent requirements are met. /4/ The trial court in the Cohen case had refused to order the plaintiff in a stockholder's derivative action to post the security for costs required by a New Jersey statute. The defendant sought immediate review of the question whether the state statute applied to derivative suits in federal courts. This Court upheld the defendant's right to appeal. It agreed that 28 U.S.C. 1291 disallows appeals "even from fully consummated decisions, where they are but steps towards final judgment in which they will merge" (Cohen, 337 U.S. at 546). The Court explained, however, that "the matters embraced in the decision appealed from are not of such an interlocutory nature as to affect, or to be affected by, decision of the merits of this case" (ibid.). The Court accordingly held that the trial court's order "appears to fall in that small class which finally determine claims of right separate from, and collateral to, rights asserted in the 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" (ibid.). As the Court has since explained, to qualify as an appealable collateral order excepted by Cohen from the final judgment rule, a district court order must at a minimum, satisfy three separate requirements. First, "the order must conclusively determine the disputed question." Coopers & Lybrand v. Livesay, 437 U.S. at 468. Accordingly, an order does not satisfy the Cohen doctrine where it "is subject to revision in the District Court" (id. at 469), or is otherwise "tentative, informal or incomplete" (Cohen, 337 U.S. at 546). Second, the order must "resolve an important issue completely separate from the merits of the action" (Coopers & Lybrand, 437 U.S. at 468). Thus, the order must involve "a serious and unsettled question" (Cohen, 337 U.S. at 547; accord, e.g., Nixon v. Fitzgerald, 457 U.S. 731, 742-743 (1982)) that is genuinely "collateral" to the merits -- "touching matters that will not 'affect, or * * * be affected by, decision of the merits of (the) * * * case'" (DiBella v. United States, 369 U.S. at 126 (citation omitted)), and not merely a "'step() towards final judgment in which (it) will merge'" (Van Cauwenberghe v. Biard, slip op. 10 (citation omitted)). Finally, the order must be "effectively unreviewable on appeal from a final judgment" (Coopers & Lybrand, 437 U.S. at 468 (footnote omitted)). The challenged order must therefore "involve() an asserted right the legal and practical value of which could be destroyed if it were not vindicated before trial" (United States v. MacDonald, 435 U.S. 850, 860 (1978) (footnote omitted)), such that denial of immediate review would "'render impossible any review whatsoever'" (Firestone Tire & Rubber Co. v. Risjord, 449 U.S. at 376 (citation omitted)). c. Because of the historic policy against piecemeal review, however, this Court has repeatedly emphasized that the collateral order doctrine is a narrow and limited exception to the final judgment rule. "The importance of the final judgment rule has led the Court to permit departures from the rule 'only when observance of it would practically defeat the right to any review at all.'" Flanagan v. United States, 465 U.S. at 265 (citations omitted). The Court has therefore sanctioned interlocutory appeals "in only a limited category of cases" (United States v. Hollywood Motor Car Co., 458 U.S. at 265), lest "the policy against piecemeal appeals * * * be swallowed by ever-multiplying exceptions" (id. at 270). For example, if the right in question can be vindicated by the reversal of an adverse judgment, a party must await the entry of a final judgment before seeking appellate review of the district court's order. /5/ An order is not immediately appealable merely because all the facts necessary to appellate review have been fully developed, /6/ because an immediate appeal would avoid a substantial burden on a party, /7/ because a trial court's ruling adjudicates important questions in the case, /8/ or because that ruling may be erroneous. /9/ Permitting an immediate appeal on such grounds would allow the collateral order exception to overtake the final judgment rule, thereby defeating the beneficial purposes served by the rule. See Hollywood Motor Car Co., 458 U.S. at 270. The Court's decisions therefore make clear that the collateral order doctrine is a narrow exception to the final judgment rule and is applicable to only a small class of prejudgment orders. See Richardson-Merrell, 472 U.S. at 430-431. 2. The collateral order doctrine has been applied with particular strictness in criminal cases Our legal system attaches "profound importance * * * (to) finality in criminal proceedings" (Strickland v. Washington, 466 U.S. 668, 693-694 (1984)), and thus the presumption against piecemeal review "is at its strongest in the field of criminal law" (United States v. Hollywood Motor Car Co., 458 U.S. at 265). Excessive delay, this Court has explained, "'is fatal to the vindication of the criminal law.'" United States v. MacDonald, 435 U.S. at 853-854 (citation omitted). By insisting on finality and prohibiting piecemeal review, the final judgment rule "discourage(s) undue litigiousness and leaden-footed administration of justice, particularly damaging to the conduct of criminal cases." DiBella v. United States, 369 U.S. at 124 (citation omitted). Accord Abney, 431 U.S. at 657; Cobbledick, 309 U.S. at 325. The Court has therefore "interpreted the requirements of the collateral-order exception to the final judgment rule with the utmost strictness in criminal cases." Flanagan v. United States, 465 U.S. 259, 265 (1984). Indeed, in the nearly 40 years since the Cohen case was decided, while the Court "frequently has considered the appealability of pretrial orders in criminal cases" (MacDonald, 435 U.S. at 853), it "has found only three types of pretrial orders * * * to meet the requirements" (Flanagan, 465 U.S. at 265-266). First, in Stack v. Boyle, 342 U.S. 1 (1951), the Court held that an order denying a motion to reduce bail could be reviewed before trial. Writing separately in that case, Justice Jackson, who had authored the Court's opinion in Cohen two years earlier, explained that, like the question of posting security in Cohen, "an order fixing bail can be reviewed without halting the main trial -- its issues are entirely independent of the issues to be tried -- and unless it can be reviewed before sentence, it never can be reviewed at all" (id. at 12). Second, in Abney v. United States, 431 U.S. 651 (1977), the Court held that an order denying a motion to dismiss an indictment on double jeopardy grounds is subject to interlocutory review. The Court explained that "the very nature of a double jeopardy claim is such that it is collateral to, and separable from, the principal issue at the accused's impending criminal trial, i.e., whether or not the accused is guilty of the offense charged" (id. at 659). Moreover, the Court stated (id. at 660), "the rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence." In particular, it noted, "the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense." Id. at 660-661 (footnote omitted; emphasis in original). Thus, the Court reasoned that "if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs" (id. at 662 (emphasis in original)). Finally, in Helstoski v. Meanor, 442 U.S. 500 (1979), the Court, applying the principles articulated in Abney, held that an order denying a motion to dismiss an indictment under the Speech or Debate Clause, Art. I, Section 6, is subject to immediate appeal under the collateral order doctrine. As in Abney, the Court explained, "the Speech or Debate Clause was designed to protect Congressmen 'not only from the consequences of litigation's results but also from the burden of defending themselves'" (id. at 508, quoting Dombrowski v. Eastland, 387 U.S. 82, 85 (1967)). Since the decision in Helstoski, the Court has consistently refused to apply the Cohen doctrine to orders in criminal cases. Indeed, the Court has emphasized that the orders appealed from in Stack, Abney, and Helstoski are "sui generis" (Flanagan, 465 U.S. at 267), and that those decisions should not be pushed beyond the special circumstances presented in each case. As the Court has explained, interlocutory review in criminal cases should be confined to claims that afford the defendant a "right not to be tried" and which therefore entitle the defendant to be heard in the appellate court before trial. In United States v. MacDonald, supra, for example, the Court held that a defendant may not take an immediate appeal from an order denying his motion to dismiss an indictment, where the motion was based on an alleged violation of the Sixth Amendment right to a speedy trial. The Court emphasized that "(u)nlike the protection afforded by the Double Jeopardy Clause, the Speedy Trial Clause does not, either on its face or according to the decisions of this Court, encompass a 'right not to be tried' which must be upheld prior to trial if it is to be enjoyed at all." Id. at 861. /10/ More recently, in Flanagan v. United States, supra, the Court held that a pretrial order disqualifying defense counsel in a criminal case is not subject to interlocutory review. Once again, the Court explained (id. at 266-267) that, unlike the rights in Abney and Helstoski, "it cannot be said that the right petitioners assert, whether based on the Due Process Clause of the Fifth Amendment or the Assistance of Counsel Clause of the Sixth Amendment, is a right not to be tried." And in United States v. Hollywood Motor Car Co., 458 U.S. at 267-268, the Court could not find in the Due Process Clause a "'right not to be tried.'" The Court therefore held that a claim of prosecutorial vindictiveness did not fit within the "narrow group of claims which meet the test of being 'effectively unreviewable on appeal from a final judgment'" (id. at 270). /11/ 3. Under these principles, an order denying a motion to dismiss an indictment under Fed. R. Crim. P. 6(e) is not subject to interlocutory appeal The trial court's order -- denying petitioners' motion to dismiss the indictment under Rule 6(e) -- fails to satisfy two prongs of the collateral order doctrine. First, the order does not "resolve an important issue completely separate from the merits of the action" (Coopers & Lybrand, 437 U.S. at 468). Second, it is not "effectively unreviewable on appeal from a final judgment" (ibid. (footnote omitted)). a. The fact that a Rule 6(e) claim is rendered harmless as a matter of law by a conviction at trial, see United States v. Mechanik, supra, demonstrates that such a claim is not "an important issue completely separate from the merits of the action" (Coopers & Lybrand, 437 U.S. at 468)). To meet that test, an order must "touch() matters that will not 'affect, or * * * be affected by, decision of the merits of (the) * * * case'" (DiBella, 369 U.S. at 126 (citation omitted)). It is hard to imagine an issue that is more directly "affected by decision of the merits" than one that will become harmless as a matter of law in the event of a conviction at trial. Unlike the wrongful denial of bail (see Stack v. Boyle, supra), or the erroneous denial of a double jeopardy claim (see Abney v. United States, supra) -- each of which constitutes a continuing injury to the defendant regardless of how the case is resolved on the merits -- the wrongful denial of a Rule 6(e) allegation is effectively "cured," or at least proved harmless, by a conviction at trial. To use a slightly different formulation, an order denying a Rule 6(e) claim is not collateral because, as a challenge to one aspect of the grand jury process, it is merely a "'step() towards final judgment in which (it) will merge'" (Van Cauwenberghe v. Biard, slip op. 10 (citation omitted)). The grand jury "serves the 'dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.'" United States v. Sells Engineering, Inc., 463 U.S. 418, 423 (1983) (citation omitted). See also United States v. Calandra, 414 U.S. 338, 343 (1974); Branzburg v. Hayes, 408 U.S. 665, 701 (1972). It is designed "to inquire into the existence of possible criminal conduct and to return only well-founded indictments" (Branzburg, 408 U.S. at 688), as well as to "shield against arbitrary accusations" (United States v. Mandujano, 425 U.S. 564, 573 (1976) (plurality opinion)) by "'determin(ing) whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will'" (Branzburg, 408 U.S. at 687 n.23 (citation omitted)). But a conviction after trial demonstrates, beyond a reasonable doubt, that there was "possible criminal conduct" (Branzburg, 408 U.S. at 688), that the indictment was "well-founded" (ibid.), that the prosecution was not "arbitrary" (Mandujano, 425 U.S. at 573), and that the charges were not "dictated by an intimidating power or by malice and personal ill will" (Branzburg, 408 U.S. at 687 n.23 (citation omitted)). Thus, the functions performed by the grand jury are "steps," albeit important ones, toward trial on the merits. And a challenge such as petitioners' to the proceedings before the grand jury will "merge" into a final judgment of conviction (Van Cauwenberghe, slip op. 10), because the conviction will prove any error in the charging process to be harmless as a matter of law. /12/ It is true, of course, that Rule 6(e) serves public purposes in addition to protecting the defendant against a tainted charging decision by the grand jury. See United States v. Sells Engineering, Inc., 463 U.S. at 424. But absent prejudice to the defendant with respect to the charging decision, a violation of the Rule would not lead to dismissal of the indictment, even if interlocutory review were permitted. See Bank of Nova Scotia v. United States, slip op. 4, 9. Therefore, in cases in which dismissal could be granted as a remedy -- the only class of cases in which interlocutory review would serve any purpose at all -- the Rule 6(e) violation cannot be viewed as "an important issue completely separate from the merits of the action." b. An order denying a Rule 6(e) motion to dismiss also fails to meet the third prong of the collateral order doctrine, because it is not "effectively unreviewable on appeal from a final judgment" (Coopers & Lybrand, 437 U.S. at 468 (footnote omitted)). This Court has explained that to meet that criterion, the order must "involve() an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial" (MacDonald, 435 U.S. at 860 (footnote omitted)). In criminal cases, the Court has further stated, the interest that would be defeated by denying interlocutory review ordinarily must "encompass a 'right not to be tried' which must be upheld prior to trial if it is to be enjoyed at all" (id. at 861). The Court has emphasized "the crucial distinction between a right not to be tried and a right whose remedy requires the dismissal of charges" (Hollywood Motor Car Co., 458 U.S. at 269). Only "(t)he former necessarily falls into the category of rights that can be enjoyed only if vindicated prior to trial. The latter does not." Ibid. /13/ Neither the Grand Jury Clause of the Fifth Amendment nor Rule 6(e) confers a right not to be tried where there has been a breach of grand jury secrecy. The Grand Jury Clause entitles a defendant not "to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." U.S. Const. Amend. V. Even if it could be said that the Grand Jury Clause affords a "right not to be tried," it would be triggered only when a defendant is required to answer serious charges that were not made by a grand jury; it would not be triggered by procedural defects in the charging process. Indeed, this Court has long recognized that "(a)n indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits." Costello v. United States, 350 U.S. 359, 363 (1956) (footnote omitted). See also United States v. Calandra, 414 U.S. 338, 344-345 (1974); Lawn v. United States, 355 U.S. 339, 349 (1958); Ex parte United States, 287 U.S. 241, 250 (1932); Beavers v. Henkel, 194 U.S. 73, 84-85, 88 (1904); Bracy v. United States, 435 U.S. 1301, 1303 (1978) (Rehnquist, Circuit Justice). There is no question in this case that petitioners were indicted by "a legally constituted and unbiased grand jury." The Grand Jury Clause therefore does not, by its terms, afford petitioners any right not to be tried. /14/ Nor does Rule 6(e) itself create a right not to be tried. Nowhere in the rule is there any suggestion that criminal defendants are shielded under Rule 6 "'not only from the consequences of litigation's results but also from the burden of defending themselves'" (Helstoski, 442 U.S. at 508 (citation omitted)). To be sure, a district court has the authority to dismiss an indictment for violations of Rule 6(e), see Bank of Nova Scotia, slip op. 5, 7, 9, and thereby to spare the defendant the obligation to stand trial. But that does not mean that a defendant with a valid Rule 6(e) claim for dismissal is entitled not to be tried before that right can be vindicated on appeal. As the MacDonald case makes clear, "the fact that this Court has held dismissal of the indictment to be (a) proper remedy * * * does not mean that a defendant enjoys a 'right not to be tried' which must be safeguarded by interlocutory appellate review" (435 U.S. at 860 n.7). /15/ In short, a procedural error in the charging process does not confer a right not to be tried. Petitioners' Rule 6(e) claim thus cannot justify interlocutory review under the collateral order doctrine. See also Abney, 431 U.S. at 663 ("petitioners' challenge to the sufficiency of the indictment does not come within the Cohen exception"). It may be argued, however, that because a Rule 6(e) error will be rendered harmless by a conviction, it is, for that reason alone, "effectively unreviewable," even though the Grand Jury Clause and Rule 6 do not otherwise entail a right not to be tried. We disagree. This Court has never suggested that the ordinary operation of the harmless error rule makes a claim "effectively unreviewable" for purposes of the collateral order doctrine. To the contrary, the Court rejected a similar contention in Stringfellow v. Concerned Neighbors in Action, No. 85-184 (Mar. 9, 1987). In Stringfellow the respondent sought to take an interlocutory appeal from an order denying its motion to intervene as of right in an ongoing litigation and granting it only permissive intervention subject to certain conditions. Respondent acknowledged that it would have an opportunity to pursue a post-trial appeal. It contended, however, that, "given the realities of complex litigation," an appellate court would "be reluctant to vacate the judgment because of an erroneous intervention order" (slip op. 5-6). Thus, respondent reasoned, its post-trial right to appeal would be "academic at best" (slip. op. 6). This Court rejected that contention as "largely beside the point" (ibid.). The Court explained that "(a)lthough it may be difficult for (respondent) to show that the harm from the intervention order is sufficiently great to overturn the final judgment, this has little bearing on whether (respondent) has the right to an interlocutory appeal under the collateral order doctrine" (ibid.). /16/ Moreover, if a claim is "effectively unreviewable" simply because, after judgment, it will be subject to the harmless error rule, then a wide array of claims would fall within the Cohen doctrine. As the Seventh Circuit has noted, "(i)f that were enough to justify an appeal, every objection to a grant or denial of civil discovery would be appealable." United States v. Daniels, 848 F.2d 758, 760 (7th Cir. 1988). /17/ In every criminal case, moreover, there are dozens of pretrial and midtrial rulings that, after a conviction, will be reviewed under a deferential standard, such as abuse of discretion, and will be subject to the harmless error rule. In the vast majority of cases, claims of error as to those rulings will likewise be unremediable on appeal. This Court has never suggested, however, that, by virtue of the likelihood that the errors will be found harmless, any of those issues may be appealed before judgment. B. The Collateral Order Doctrine Should Not Be Expanded To Cover An Order Denying A Rule 6(e) Motion To Dismiss An Indictment Petitioners' claim "does not justify expanding the small class of criminal case orders covered by the collateral-order exception to the final judgment rule -- either by eliminating any of the Coopers & Lybrand conditions or by interpreting them less strictly than the Court's cases have done. The costs of such expansion are great, and the potential rewards are small." Flanagan v. United States, 465 U.S. 259, 269 (1984). 1. A pretrial appeal necessarily interrupts the trial process, and "(i)n criminal cases such interruption exacts a presumptively prohibitive price" (Flanagan, 465 U.S. at 269). First, society has a strong interest in a speedy trial for indicted defendants, an interest "which exists separate from, and at times in opposition to, the interests of the accused" (Barker v. Wingo, 407 U.S. 514, 519 (1972); accord United States v. Mechanik, 475 U.S. at 72; United States v. Hasting, 461 U.S. 499, 509 (1983)). In particular, as the Court has stated, "(d)elay between arrest and punishment prolongs public anxiety over community safety" (Flanagan, 465 U.S. at 264), and thus "(t)he public interest in a broad sense * * * commands prompt disposition of criminal charges" (Strunk v. United States, 412 U.S. 434, 439 n.2 (1973)). Delay also impairs the effectiveness of the trial as a means of discovering the truth. "As time passes, the prosecution's ability to meet its burden of proof may greatly diminish: evidence and witnesses may disappear, and testimony becomes more easily impeachable as the events recounted become more remote" (Flanagan, 465 U.S. at 264; accord Engle v. Isaac, 456 U.S. 107, 127-128 (1982); MacDonald, 435 U.S. at 862 (1978)). /18/ In addition, the greater the delay in bringing a defendant to trial, "the more tempting becomes his opportunity to jump bail and escape" (Barker, 407 U.S. at 520 (footnote omitted)), and the longer "the period during which (the) defendant() * * * may commit other crimes" (MacDonald, 435 U.S. at 862). Finally, extensive delay between arrest and punishment may "adversely affect the prospects for rehabilitation" (Flanagan, 465 U.S. at 264; accord Barker, 407 U.S. at 520 (footnote omitted)). /19/ Moreover, the costs attributable to interruption and delay could not logically be confined to Rule 6(e) cases. If an order denying a Rule 6(e) claim is immediately appealable on the ground that it would otherwise become harmless under Mechanik after conviction, the same would hold true for a wide range of other grand jury motions that are routinely made in criminal cases and that are equally governed by Mechanik on appeal. /20/ Indeed, in two of its recent cases, the Ninth Circuit, relying on Mechanik, adopted precisely that position. See United States v. Dederich, 825 F.2d 1317, 1320-1321 (1987); and United States v. Benjamin, 812 F.2d 548, 552-553 (1987); Apart from leading to congestion in the courts of appeals, such a broad expansion of the collateral order doctrine would seriously disrupt the timely processing of criminal charges in the trial courts. /21/ What is more, challenges to grand jury proceedings are quite easily devised, and in lengthy, complex grand jury investigations, the proceedings can easily become "fertile ground to be combed for evidentiary or other error." United States v. Bari, 750 F.2d 1169, 1176 (2d Cir. 1984), cert. denied, 472 U.S. 1019 (1985). Defendants ordinarily have every incentive to seek to defeat or at least delay the prosecution as well as to obtain discovery not otherwise available concerning the government's case. Not surprisingly, motions to dismiss indictments for possible grand jury irregularity are already common fare in the federal system. /22/ Indeed, trial practice guides for defense counsel specifically refer to the numerous tactical advantages of such pretrial motions. /23/ The Court's practical concern in MacDonald is thus equally applicable here: if a Rule 6(e) claim falls within the Cohen doctrine, then "any defendant can make a pretrial motion for dismissal * * * and, if Section 1291 is not honored, could immediately appeal its denial" (435 U.S. at 862-863). The present case shows how easy it is to devise a Rule 6(e) motion to dismiss. Petitioners contend that the government violated Rule 6(e) by attaching to its motion papers in the Allegany Bitumens case a memorandum that it had previously filed in a civil action related to this case. Petitioners assert that the attached memorandum revealed that Midland had filed certain pretrial motions (Br. 11-12); that the grand jury was investigating possible antitrust violations in the road paving business in New York (Br. 12); and that Bradford Banks was expected to be called before the grand jury (Br. 12). Petitioners speculate that the grand jury may have learned, through these disclosures, of the motions filed by Midland and may have "concluded that such grand jury motions, along with other unidentified grand jury motions, constituted evidence of consciousness of guilt justifying the indictment of the petitioners" (Br. 16). Petitioners also surmise that selective disclosures of grand jury material may have induced one of their co-conspirators to enter into a cooperation agreement with the government (Br. 30-31 & n.6). The district court readily dismissed those allegations (Pet. App. 1-2), and it did so correctly. Some of the purported disclosures have little or nothing to do with Rule 6(e), since they do not involve "matters occurring before the grand jury." See In re Grand Jury Matter, 682 F.2d 61, 63 (3d Cir. 1982); In re Grand Jury Investigation, 610 F.2d 202, 216 (5th Cir. 1980). Moreover, virtually all of the alleged revelations, as the district court found (Pet. App. 2), were already a matter of public record, chiefly as a result of Midland's own unsealed filings and statements in open court. See pages 2-3, supra. And it is hard to see how any of the alleged disclosures could possibly have prejudiced the grand jury's determination of probable cause. Cf. Bank of Nova Scotia, slip op. 9 (alleged Rule 6(e) violations, including "publicly identifying the targets and the subject matter of the grand jury investigation(,) * * * could not have affected the charging decision"). Petitioners' suggestion that the prosecutor somehow intended "to conceal the violation of Rule 6(e)" (Br. 32 n.7) is based on nothing more than the government's use of the word "letter" rather than "memorandum" to describe the attachment in the Allegany Bitumens case. In addition, that suggestion is belied by petitioners' own concession at a hearing before the district court that they "do not contend that this violation of Rule 6(e) * * * was intentional." Sept. 18, 1987 Tr. 3. In short, this case, and countless others just like it, justify the Court's concern in MacDonald: there is nothing about Rule 6, or the grand jury process generally, that "inherently limits the availability of the claim" (435 U.S. at 862). 2. Perhaps recognizing the extravagant costs that would be entailed by a broad rule permitting interlocutory appeals dealing with grand jury claims, petitioners propose that only a "narrow" (Br. 28) category of grand jury errors be made subject to interlocutory review. In particular, petitioners suggest that interlocutory review should be permitted only "for government misconduct so totally intertwined with the grand jury's ability to operate as an independent body of citizens that the effect is likely to impact on the determination of probable cause" (ibid.). Petitioners believe that Rule 6(e) violations fall within that "narrow" category, since "the unwarranted disclosure of Rule 6(e) information() compromises the integrity of the grand jury by sapping its independence" (Br. 30). That is no solution at all. If the right to interlocutory review requires merely an allegation that a Rule 6 error affected the grand jury's "independence" and thus its "determination of probable cause" (Br. 28), few defendants will forsake the trip to the court of appeals. Claims like that are made all the time, and the prospect of pretrial appellate review would simply add to the inducements for defendants to make such allegations routinely. In any event, the right to interlocutory review cannot plausibly hinge, as petitioners insist it should, on whether an alleged Rule 6 violation may be said to have affected the grand jury's independence in a particular instance. This Court has made clear that "(a)ppeal rights cannot depend on the facts of a particular case." Carroll v. United States, 354 U.S. 394, 405 (1957). The Court has consistently recognized that the factual circumstances that underlie a would-be appellant's claim, however "extraordinary" they are alleged to be, are immaterial for the purpose of determining whether a district court order rejecting that claim qualifies under the collateral order doctrine. See Van Cauwenberghe v. Biard, supra, slip op. 11; Richardson-Merrell, Inc. v. Koller, 472 U.S. at 438-439; United States v. MacDonald, 435 U.S. at 857-858 n.6; Carroll, 354 U.S. at 405. Under the governing jurisdictional statute, 28 U.S.C. 1291, the courts of appeals have the power to review only "final decisions," a concept that Congress defined "in terms of categories," not individual cases (Carroll, 354 U.S. at 405). Accordingly, whether the district court order denying the Rule 6(e) motion in this case is an appealable "final decision" depends on whether such orders, "in the generality of cases" (ibid.), fit into that well defined and narrowly circumscribed category of interlocutory orders adjudicating rights that "can and should be protected by appeal prior to judment" (Richardson-Merrell, 472 U.S. at 436). 3. While the costs of expanding the collateral order doctrine to cover petitioners' claim would be great, the corresponding benefits would be insubstantial. We say that for three reasons. First, there is no reason to believe that a significant number of Rule 6(e) claims are incorrectly resolved at the trial level and therefore require correction by an appellate court on an interlocutory basis. To secure the dismissal of an indictment, a defendant must show that an alleged grand jury error prejudiced the grand jury's determination of probable cause. See Bank of Nova Scotia v. United States, supra. Because the standard of probable cause is not an exacting one (cf. Illinois v. Gates, 462 U.S. 213, 238 (1983); United States v. Ventresca, 380 U.S. 102, 108-109 (1965)), it is quite difficult to show that, but for a particular procedural error, the grand jury would not have indicted (cf. Franks v. Delaware, 438 U.S. 154, 171-172 (1978)). Such a showing is likely to be possible only in cases of egregious grand jury error, and trial judges are not likely to overlook errors of that magnitude. It follows, in our view, that in the vast majority of cases the denial of a Rule 6(e) motion to dismiss is correct, and does not warrant correction by a court of appeals under the collateral order doctrine. /24/ Second, there is no reason to believe that any significant number of Rule 6(e) claims that have been incorrectly denied by the district court will be corrected by the courts of appeals on interlocutory review. Cf. Richardson-Merrell, Inc. v. Koller, 472 U.S. at 434. We are aware of no case in which a court of appeals has ever ordered an indictment dismissed because of a Rule 6(e) violation, either before or after Mechanik. /25/ As Judge Friendly explained in another context, "the likelihood of reversal is too negligible to justify the delay and expense incident to an appeal and the consequent burden on hardpressed appellate courts." Donlon Indus. Inc. v. Forte, 402 F.2d 935, 937 (2d Cir. 1968). Finally, even in the rare case in which a defendant might prevail in an interlocutory appeal, he would not secure much of a victory. Unlike success on a double jeopardy or Speech or Debate Clause claim, success on a Rule 6(e) motion to dismiss an indictment ordinarily leaves the government free to re-present the case to another grand jury. See United States v. Blue, 384 U.S. 251, 255 n.3 (1966). Except in cases in which the original grand jury error was truly egregious and made the difference between indictment and a decision by the grand jury not to indict, the second grand jury is likely to indict the defendant again. It is conceivable, of course, that there may be some cases in which the loss of an opportunity for interlocutory review will deprive a defendant of a potentially successful motion to dismiss. That abstract possibility, however, is too slight to justify the huge costs associated with allowing all defendants to take immediate appeals from orders denying Rule 6(e) motions. As the Court has noted in other contexts, the "trial on the merits (should be) the 'main event'" (Wainwright v. Sykes, 433 U.S. 72, 90 (1977)), and "the prominence of the trial itself" (Engle v. Isaac, 456 U.S. at 127) should not be overshadowed by a focus on other stages of the proceeding. "Defendants are not entitled * * * to a rule which would result in interminable delay but add nothing to the assurance of a fair trial." Costello v. United States, 350 U.S. at 364. In our view, the costs of permitting interlocutory review of Rule 6(e) motions are sufficiently evident and substantial, and the absence of corresponding benefits sufficiently clear, that the collateral order doctrine should not be enlarged to accommodate petitioners' claim. 4. We recognize that the consequence of our position is that a certain class of claims, if decided erroneously by the district courts, may not be remediable by the courts of appeals. /26/ But this Court has long held that "(a)n appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal." McKane v. Durston, 153 U.S. 684, 687 (1894). Rather, "the right to a judgment from more than one court is a matter of grace" (Cobbledick, 309 U.S. at 325) and "is wholly within the discretion of the State to allow or not to allow" (McKane, 153 U.S. at 687). Indeed, "(n)ot until 1889 was there review as of right in criminal cases" (Cobbledick, 309 U.S. at 325). It follows that "the right of appeal may be accorded by the State to the accused upon such terms as in its wisdom may be deemed proper." McKane, 153 U.S. at 687-688. That is precisely what Congress has done -- by restricting appellate review to final decisions and by subjecting such review to a harmless error standard that requires courts of appeals to disregard "(a)ny errors or defects which do not affect the substantial rights of the parties" (28 U.S.C. 2111; see also Fed. R. Crim. P. 52(a)). If, as here, those procedural rules commit a certain class of decisions, as a practical matter, to the unremediable discretion of the district courts, that is a judgment that Congress is entitled to make, and it is consistent with congressional practice over the years. Petitioners suggest (Br. 36-37), however, that unless this Court affirms the right to interlocutory review, with the attendant possibility that indictments may be dismissed under Rule 6(e), there will be no effective manner of "deterring prosecutors from violations of 6(e) and other similar types of misconduct" (Br. 37). Petitioners do not allege, however, that there has been any significant, systematic abuse of the grand jury warranting the creation of a novel right to interlocutory review. In any event, as this Court emphasized in Bank of Nova Scotia, there are several available alternatives to procedures that culminate in dismissal -- including contempt, disciplinary proceedings, and criticism in published opinions (slip op. 12). /27/ Each of those remedies "allow(s) the court to focus on the culpable individual" (ibid.). And each may be pursued after a final judgment, sparing the courts and society the extravagant costs of frequent, interlocutory appeals. CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. CHARLES FRIED Solicitor General CHARLES F. RULE Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General KENNETH G. STARLING Deputy Assistant Attorney General LAWRENCE S. ROBBINS Assistant to the Solicitor General JOHN J. POWERS, III LAURA HEISER Attorneys SEPTEMBER 1988 /1/ A copy of one of the grand jury subpoenas was attached to the Banks Affidavit. Midland also submitted a legal memorandum in support of its motion, which stated, in part, that Midland had been served with "sweeping, twenty-one page Grand Jury subpoenas seeking virtually all of (its) records * * * regarding bids on highway, airport runway and road construction projects in Western New York over more than a seven year period" (Memorandum in Support of Order to Show Cause at 1). /2/ On October 2, 1985, at an open hearing on the motion, counsel for Midland again represented that Banks was "a grand jury witness" (Tr. 3). /3/ "The first Judiciary Act of 1789, 1 Stat. 73, established the general principle that only final decisions of the federal district courts would be reviewable on appeal." Carson v. American Brands, Inc., 450 U.S. 79, 83 (1981) (emphasis in original). /4/ There are two principal statutory exceptions to the final judgment requirement. First, 28 U.S.C. 1292(b) allows interlocutory appeals in civil cases by permission of the district court and the court of appeals, but only where resolution of a controlling question of law may materially advance the ultimate termination of the litigation. Significant for present purposes is that Congress elected to exclude criminal cases from Section 1292(b). Second, Congress has in recent years authorized certain interlocutory prosecution appeals in criminal cases (e.g., 18 U.S.C. 2518(10)(b) and 3731). The reasons for this policy are evident. Because of the operation of double jeopardy principles, erroneous pretrial rulings adverse to the government will almost always be unreviewable following final judgment. In addition, institutional constraints (including the requirement that any government appeal be authorized by the Solicitor General) greatly reduce the risk of frivolous appeals or appeals taken for the purpose of delay. Indeed, both 18 U.S.C. 2518(10)(b) and 3731, para. 2, require the United States Attorney to certify that the appeal is not being "taken for purpose of delay" and mandate that the appeal be "diligently prosecuted." None of the considerations that support allowance of interlocutory prosecution appeals has force in the vast majority of potential defense interlocutory appeals, and it is therefore not surprising that, except in the purely collateral area of bail (18 U.S.C. 3147(b)), Congress has never expressly authorized interlocutory appeals by criminal defendants. /5/ See, e.g., Van Cauwenberghe, slip op. 8-9 (an extradited person's claim to immunity from civil service of process); Richardson-Merrell, Inc. v. Koller, supra (disqualification of counsel in a civil case); Firestone Tire & Rubber Co. v. Risjord, supra (refusal to disqualify counsel in a civil case); United States v. Hollywood Motor Car Co., supra (refusal to dismiss an indictment in a criminal case on the ground of alleged prosecutorial vindictiveness); United States v. MacDonald, supra (refusal to dismiss an indictment in a criminal case on speedy trial grounds); Cobbledick v. United States, supra (denial of a motion to quash subpoena); Cogen v. United States, 278 U.S. 221 (1929) (refusal to suppress evidence in a criminal case). /6/ See, e.g., Richardson-Merrell, Inc. v. Koller, supra; Firestone Tire & Rubber Co. v. Risjord, supra; United States v. Hollywood Motor Car Co., supra; Abney v. United States, 431 U.S. 651, 663 (1977) (claim that indictment fails to state an offense); Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 29-31 (1943) (claim that indictment should be dismissed for lack of jurisdiction); Heike v. United States, 217 U.S. 423, 430-431 (1910) (claim of statutory immunity from conviction). /7/ See, e.g., Van Cauwenberghe, slip op. 9-12 (order denying motion to dismiss on the ground of forum non conveniens); Richardson-Merrell, 472 U.S. at 434; United States v. Ryan, 402 U.S. 530, 532-534 (1971) (denial of motion to quash subpoena is not immediately appealable simply because compliance with the subpoena will impose a substantial burden on respondent); Cobbledick, 309 U.S. at 325 ("(b)earing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship"). /8/ See, e.g., Carroll v. United States, 354 U.S. 394, 406 (1957) ("(m)any interlocutory decisions * * * may be of grave importance to a litigant, yet are not amenable to appeal at the time entered"); Cobbledick, 309 U.S. at 325-326 ("rejection even of a constitutional claim * * * must await * * * conviction before its reconsideration by an appellate tribunal"). /9/ See, e.g., Richardson-Merrell, 472 U.S. at 436 ("the possibility that a ruling may be erroneous and may impose additional litigation expense is not sufficient to set aside the finality requirement imposed by Congress"); Firestone, 449 U.S. at 378 (quoting Will v. United States, 389 U.S. 90, 98 n.6 (1967)) ("interlocutory orders are not appealable 'on the mere ground that they may be erroneous'"). /10/ The Court observed (MacDonald, 435 U.S. at 860 n.7): "Admittedly, there is value -- to all but the most unusual litigant -- in triumphing before trial, rather than after it, regardless of the substance of the winning claim. But this truism is not to be confused with the quite distinct proposition that certain claims (because of the substance of the rights entailed, rather than the advantage to a litigant in winning his claim sooner) should be resolved before trial. Double jeopardy claims are paradigmatic." The Court added that "(t)here perhaps is some superficial attraction in the argument that the right to a speedy trial -- by analogy to these other rights -- must be vindicated before trial in order to insure that no nonspeedy trial is ever held. Both doctrinally and pragmatically, however, this argument fails." Id. at 860-861. /11/ The Court acknowledged in Hollywood Motor Car Co. that "there is a superficial plausibility to the contention that any claim, particularly a constitutional claim, that would be dispositive of the entire case if decided favorably to a criminal defendant, should be decided as quickly as possible in the course of the litigation" (458 U.S. at 270). "But if such a principle were to be applied," the Court reasoned (ibid.), "the policy against piecemeal appeals in criminal cases would be swallowed by ever-multiplying exceptions." /12/ See also Parr v. United States, 351 U.S. 513, 519 (1956) (citation omitted) (order dismissing defendant's first indictment after superseding indictment was filed is not appealable since it "was but a 'step toward final disposition of the merits of the case' and will 'be merged in the final judgment'"). /13/ Compare Abney v. United States, 431 U.S. at 661 (footnote omitted; emphasis in original) (Double Jeopardy Clause affords "a guarantee against being twice put to trial for the same offense"); and Helstoski v. Meanor, 442 U.S. at 508 (citation omitted) ("the Speech or Debate Clause was designed to protect Congressmen 'not only from the consequences of litigation's results but also from the burden of defending themselves'") with Flanagan, 465 U.S. at 266-267 ("it cannot be said that the right petitioners assert, whether based on the Due Process Clause of the Fifth Amendment or on the Assistance of Counsel Clause of the Sixth Amendment, is a right not to be tried"); and MacDonald, 435 U.S. at 861 ("(u)nlike the protection afforded by the Double Jeopardy Clause, the Speedy Trial Clause does not, either on its face or according to the decisions of this Court, encompass a 'right not to be tried'"). /14/ Petitioners contend (Br. 24) that the Grand Jury Clause "is a guarantee against being once put in jeopardy on an indictment returned by a grand jury whose decision to indict was substantially influenced by the government's violation of 6(e)." That contention, which petitioners make no effort to tie to the language of the Clause or to this Court's cases, cannot be squared with the Court's suggestion in Bank of Nova Scotia that Rule 6(e) violations do not amount to constitutional error. The Court sharply distinguished between nonconstitutional claims and other, more "fundamental" errors "in which the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair" (id. at 6). The Court explained that racial and gender discrimination in the selection of the grand jury were examples of "fundamental" and "structural" error (ibid.), and it concluded that the errors complained of by the defendants, including a series of Rule 6(e) violations, did not amount to "constitutional error" (see slip op. 7). See also Costello v. United States, 350 U.S. at 363 & n.7 (citing Pierre v. Louisiana, 306 U.S. 354 (1939), which involved racial discrimination in the selection of state grand jurors, as an instance in which there was not "a legally constituted and unbiased grand jury"). Petitioners' passing reliance (Br. 24) on the Court's decision in Stirone v. United States, 361 U.S. 212 (1960), is misplaced. In that case, the Court held that the government had violated the defendant's right to be tried only on the charges found by the grand jury, when it proceeded on a theory of prosecution that was at significant variance with the charges in the indictment. The case did not involve Rule 6(e), let alone suggest that the Grand Jury Clause entitles a defendant not to be tried on an indictment that may be the product of a Rule 6(e) violation. /15/ Moreover, here, as in MacDonald, it is the breach of secrecy "before trial, not the trial itself, that offends against" the proscriptions of Rule 6(e). "Proceeding with the trial does not cause or compound the deprivation already suffered." MacDonald, 435 U.S. at 861. /16/ The Court observed that "(t)he difficulties of which (respondent) complains are the same as those faced by any party who is subject to an advese pretrial order. A party who has had one of several claims dismissed before trial, for example, may similarly believe that the chances of overturning the judgment on this ground are small, even if the dismissal turns out to be erroneous. Yet unless the district court specifically holds otherwise, challenges to this type of order can be raised only after judgment." Stringfellow, slip op. 6. /17/ Accord EEOC v. Neches Butane Products Co., 704 F.2d 144, 148 (5th Cir. 1983) (to be "effectively unreviewable" under Cohen "requires considerably more than either expense or near irreversibility -- qualities common to virtually all discovery orders"). /18/ Petitioners' suggestion (Br. 36) that the government can always "preserve testimony through depositions under Rule 15, Federal Rules of Criminal Procedure" offers cold comfort. Under Rule 15, depositions can be taken only in "exceptional circumstances." Moreover, a deposition is ordinarily a far less satisfactory means of presenting evidence to a jury than live testimony. /19/ These policies apply not only to delays in the trial process but also to interruptions that delay grand jury investigations. "It is no less important to safeguard against undue interruption of the inquiry instituted by a grand jury than to protect from delay the progress of the trial after an indictment has been found. Opportunity for obstructing the 'orderly progress' of investigation should no more be encouraged in one case than in the other." Cobbledick v. United States, 309 U.S. at 327. Thus, in the Cobbledick case, and more recently in United States v. Ryan, 402 U.S. 530 (1971), the Court refused to permit interlocutory appeals from orders denying motions to quash grand jury subpoenas. As the Court has explained in a somewhat different context, "(a)ny holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frustrate the public's interest in the fair and expeditious administration of the criminal laws." United States v. Dionisio, 410 U.S. 1, 17 (1973). Accord Costello, 350 U.S. at 363. /20/ See, e.g., United States v. Hefner, 842 F.2d 731, 732, 733 (4th Cir. 1988) (Mechanik bars claim that indictment was invalid because the grand jury foreman had been convicted of a felony nearly 30 years ago); United States v. Fountain, 840 F.2d 509, 513-515 (7th Cir. 1988) (Mechanik bars claims that prosecutor neglected to present exculpatory evidence and that the entire presentation to the grand jury was hearsay); United States v. Bucci, 839 F.2d 825, 831-832 (1st Cir. 1988) (Mechanik bars claims that prosecutor failed to impeach perjurious testimony before the grand jury and offered false and inflammatory evidence); United States v. McKie, 831 F.2d 819, 821-828 (8th Cir. 1987) (Mechanik bars claim that prosecutor's remarks to the grand jury induced it to indict the defendant on more than one count); United States v. Kouba, 822 F.2d 768, 773-774 (8th Cir. 1987) (Mechanik bars claims that prosecutor introduced misleading summaries of testimony to the grand jury; that the prosecutor called witnesses solely to make them invoke the Fifth Amendment in front of the grand jury; and that a government investigator wrongfully called himself an agent of the grand jury and administered oaths to potential witnesses prior to taking their statements); Porter v. Wainwright, 805 F.2d 930, 941-942 (11th Cir. 1986), cert. denied, No. 86-6811 (June 8, 1987) (Mechanik bars claim that a grand jury member was biased because he was related to the victims and that the prosecutor wrongfully withheld that information from the defense); United States v. Thomas, 788 F.2d 1250, 1254 (7th Cir.), cert. denied, 479 U.S. 853 (1986) (Mechanik bars claims that prosecutor asked the defendant improper questions before the grand jury; that he failed to present exculpatory evidence; and that he improperly advised the grand jury that the defendant's legal theories were incorrect). /21/ The experience in the Ninth Circuit since its decisions in Benjamin and Dederich belies petitioners' prediction (Br. 36) that "the delay involved in such * * * appeal(s is not) likely to be lengthy." For example, the defendants in United States v. Rosendin Elec. Inc., No. 87-1115 (9th Cir. July 20, 1988), were scheduled to go to trial on May 18, 1987, on charges that they had rigged bids in violation of Section 1 of the Sherman Act. The district court had previously denied their motion to dismiss the indictment under Fed. R. Crim. P. 6. The defendants thereafter took an interlocutory appeal, and oral argument was heard, on an expedited basis, on May 11, 1988. On July 20, 1988, more than a year after the case had been scheduled for trial, the court of appeals affirmed the district court's order. The Benjamin and Dederich cases themselves have a similar history. The court of appeals initially denied the government's motion to dismiss the Benjamin case on March 11, 1987 (812 F.2d 548), and the Dederich case on August 19, 1987 (825 F.2d 1317). The court then consolidated the appeals and heard argument on March 15, 1988. It issued a final decision affirming the district court's orders on July 7, 1988. /22/ See, e.g., Bank of Nova Scotia v. United States, No. 87-578 (June 22, 1988) (alleging violations of Rule 6(d) and (e), harassment of a grand jury witness, misuse of statutory immunity provisions, calling witnesses before the grand jury solely to elicit a Fifth Amendment claim, misstatements of prior testimony, and misleading characterizations of witnesses as agents of the grand jury); United States v. Mechanik, supra (alleging violation of Rule 6(d) by simultaneous presence and testimony of two government witnesses); United States v. Thomas, 788 F.2d 1250, 1254 (7th Cir.), cert. denied, 479 U.S. 853 (1986) (alleging improper remarks by prosecutor concerning defendant's theory of defense); United States v. Buchanan, 787 F.2d 477, 487 (10th Cir. 1986) (alleging error in instructions to the grand jury); United States v. Pino, 708 F.2d 523, 529-530 (10th Cir. 1983) (alleging intimidation of a witness); United States v. Romano, 706 F.2d 370, 374 (2d Cir. 1983) (alleging failure to give sufficient entrapment instructions to the grand jury); United States v. Levine, 700 F.2d 1176, 1178-1181 (8th Cir. 1983) (alleging use of inadmissible evidence and failure to present evidence of defendant's proffered alibi); United States v. Mayers, 670 F.2d 126, 128-129 (9th Cir. 1982) (alleging Rule 6(e) violation and fact that fewer than 12 grand jurors heard all the evidence presented); United States v. Trass, 644 F.2d 791, 792-797 (9th Cir. 1981) (alleging excessive use of hearsay and failure to present exculpatory evidence); United States v. Cederquist, 641 F.2d 1347, 1353 (9th Cir. 1981) (alleging fact that prosecutor submitted proposed indictment prior to the close of testimony); United States v. Chanen, 549 F.2d 1306 (9th Cir.), cert. denied, 434 U.S. 825 (1977) (alleging that prosecutor read transcripts of first grand jury's proceedings to second grand jury); United States v. Narciso, 446 F. Supp. 252, 297 (E.D. Mich. 1977) (alleging failure to record testimony of certain witnesses). /23/ See, e.g., 1 A. Amsterdam, Trial Manual for the Defense of Criminal Cases Section 172 (1984); 1 S. Allen, I. Rosen, D. Winston & J. Kruskal, Criminal Defense Techniques Section 6A.02(5) (1988); B. Gershman, Prosecutorial Misconduct Sections 2.1-2.9 (1985); National Lawyers Guild, Representation of Witnesses Before Federal Grand Juries Section 13.4(b)(1) (3d ed. 1985). /24/ What is more, a disclosure of Rule 6(e) material, by definition, reveals only matters that have "occur(red) before the grand jury." Except in the rare case, a disclosure of matters that the grand jury already knows should not prejudice its determination of probable cause. /25/ Indeed, we are aware of only three cases in which a court of appeals has reversed a district court and ordered the dismissal of an indictment because of grand jury abuse of any kind. See United States v. Hogan, 712 F.2d 757 (2d Cir. 1983) (prosecutor engaged in inflammatory and misleading conduct before the grand jury); United States v. Basurto, 497 F.2d 781 (9th Cir. 1974) (prosecutor knowingly used perjured testimony before the grand jury); United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972) (prosecutor used hearsay evidence without advising the grand jury that the evidence was hearsay). In a fourth case, United States v. Serubo, 604 F.2d 807 (3d Cir. 1979), the court remanded the case for further proceedings on the defendant's claim of grand jury abuse. /26/ In Firestone Tire & Rubber Co. v. Risjord, 449 U.S. at 378-379 n.13, the Court suggested that, "in the exceptional circumstances for which it was designed," a writ of mandamus would be appropriate to review a district court's denial of a disqualification motion. It may well be that the writ will also be available to review the interlocutory denial of a Rule 6(e) motion in a criminal case, provided, of course, that the strict standards for mandamus have been satisfied. See Will v. United States, 389 U.S. 90 (1967). /27/ The sanction of contempt is specifically provided for by Rule 6(e). See Fed. R. Crim. P. 6(e)(2). The reference to contempt in the Rule suggests that contempt was intended to be the principal means of remedying Rule 6(e) violations, and that, contrary to petitioners' claim (Br. 36-37), contempt is regarded as an adequate remedy for enforcing the Rule.