United States v. Tucker

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 11, 2014
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
Nos. 13-7047, 13-7048, 13-7049
WILLIAM JEFFREY TUCKER,
TOMMY WAYNE DAVIS, MICHAEL
SCOTT CALHOUN,
Defendants - Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. NOS. 6:12-CR-00061-RAW-3, 6:12-CR-00061-RAW-2
& 6:12-CR-00061-RAW-1)
J. Lance Hopkins, Tahlequah, Oklahoma, for Appellant William Jeffrey Tucker.
Art Fleak, Tulsa, Oklahoma, for Appellant Tommy Wayne Davis.
James G. Wilcoxen, Muskogee, Oklahoma, for Appellant Michael Scott Calhoun.
Thomas M. Wright, Assistant United States Attorney (Mark F. Green, United States
Attorney, and Linda A. Epperley, Assistant United States Attorney, with him on the
brief), Office of the United States Attorney of the Eastern District of Oklahoma,
Muskogee, Oklahoma, for Appellee.
Before TYMKOVICH, HOLLOWAY, and MATHESON, Circuit Judges.
MATHESON, Circuit Judge.
A grand jury indicted Michael Scott Calhoun, Tommy Wayne Davis, and William
Jeffrey Tucker (collectively, the “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.
In these consolidated, pretrial interlocutory appeals, the Defendants challenge the
district court’s denial of their motion to quash. The Defendants urge us to exercise
jurisdiction under the “collateral order” exception to the final judgment rule, first
articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47 (1949).
We conclude the collateral order doctrine does not apply and dismiss these appeals
for lack of jurisdiction under 28 U.S.C. § 1291.
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I. BACKGROUND
A. Factual Background
The factual background of this case is complex, involving an elaborate alleged
fraud scheme. Because the interlocutory appeals narrowly focus on the validity of the
indictment, we briefly review the factual history and then concentrate on events after Mr.
Calhoun was subpoenaed to appear before a grand jury.
1. The Tri-County Fraud Scheme
At the time of the conduct charged in the indictment, Mr. Calhoun was the general
manager of Tri-County Autoplex (“Tri-County”), an automotive dealership in Hugo,
Oklahoma. Co-defendant Mr. Davis was employed as Tri-County’s sales manager.
In May 2007, Tri-County obtained a line of credit from Texas Capital Bank (the
“Bank”), pledging vehicles in its inventory as collateral. Before issuing the line of credit,
the Bank required Tri-County to provide documentation proving ownership and
possession of these vehicles. As proof of ownership, the Bank accepted Manufacturers
Statements of Origin (“MSO’s”), which are industry-standard documents listing each
vehicle’s manufacturing history, make, model, and vehicle identification number
(“VIN”). MSO’s list the dealership as the owner of the vehicle until it is sold and the
dealership issues a title to the purchaser.
According to the indictment, Tri-County leadership entered into a conspiracy with
James Dean Kayvonfar and Charles Matthew Spires, employees at Automotive Transfers
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Incorporated (“ATI”). 1 ATI is a business that assists dealerships by locating and
transferring vehicles from one dealership to another. Mr. Kayvonfar and Mr. Spires
would send fraudulent MSO’s to Tri-County, which would provide the MSO’s to the
Bank as proof of ownership for vehicles that were never part of its inventory. The Bank
would then extend additional credit to Tri-County.
Tri-County allegedly sought to conceal this fraudulent conduct by telling auditors
that some of its fictitious inventory was on loan to another dealership in Hugo called “T
or T Auto.” Mr. Tucker—the third co-defendant involved in this appeal—owned T or T
Auto. The indictment alleges that Mr. Calhoun and Mr. Davis would call Mr. Tucker and
list VIN numbers for fictitious cars. When auditors called in reference to those vehicles,
Mr. Tucker would recite those VINs, falsely confirming those vehicles were on loan to T
or T Auto.
The Defendants contend the Bank participated in the Tri-County fraud scheme.
They allege the Bank’s loan officer, Clint Kuykendall, “routinely engaged in the practice
of creating false and inadequate audits, turning a blind eye to inadequate and suspicious
paperwork, accepting dual and fake financial reports, and allowing cars to be sold out of
trust.” Aplt. Br. at 4-5. The Government refers to the Bank as “the victim in this case”
and has not charged Mr. Kuykendall or any other Bank employee. Aplee. Br. at 9.
1
Mr. Kayvonfar and Mr. Spires were charged in the same indictment as the
Defendants, but they are not parties to the present appeal.
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2. Underlying Civil Litigation
In May 2010, Steve Rouse—who in 2007 was a co-owner of Tri-County —
brought a civil action in Oklahoma state court alleging fraud in the financing and
management of the dealership. The defendants included Mr. Calhoun, Mr. Davis, the
Bank, and Mr. Kuykendall. Mr. Calhoun retained Texas attorney Larry Friedman to
represent him.
On August 25, 2011, a jury awarded Mr. Rouse $65 million in actual and punitive
damages against all defendants, including the Bank.
3. Mr. Calhoun’s Grand Jury Subpoena2
In 2011, Mr. Calhoun received a subpoena to appear before a federal grand jury in
the Eastern District of Oklahoma, along with a letter informing him that he was a target
of the grand jury’s investigation into the Tri-County fraud scheme.
2
The following facts are taken from the magistrate judge’s Findings and
Recommendation on the Defendants’ motion to quash the indictment. See Calhoun ROA,
Vol. I at 86. The magistrate judge’s factual determinations were based largely on Mr.
Calhoun’s testimony at an evidentiary hearing.
The district court adopted the magistrate judge’s Findings and Recommendation in
full. See id. at 108. We therefore accept these factual findings unless they are clearly
erroneous. See United States v. Madden, 682 F.3d 920, 929 (10th Cir. 2012) (reviewing
factual findings relating to a motion to quash an indictment for clear error); see also
Anderson v. City of Bessemer, 470 U.S. 564, 573-74 (1985) (“If the district court’s
account of the evidence is plausible in light of the record viewed in its entirety, the court
of appeals may not reverse it even though convinced that had it been sitting as the trier of
fact, it would have weighed the evidence differently.”). Because we find no clear error in
the magistrate judge’s factual determinations, we have adopted them here.
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FBI Agent Jeff Youngblood then contacted Mr. Calhoun to ask if he would
cooperate with the grand jury investigation. Mr. Calhoun responded that he intended to
cooperate, but he could not afford counsel because he had exhausted his financial
resources in the civil litigation.
On August 19, 2011, the district court appointed Rex Earl Starr to represent Mr.
Calhoun. Mr. Starr contacted Mr. Calhoun to say that he would be on vacation until the
end of the month. According to Mr. Calhoun, Mr. Starr took no further action to
represent him.
As noted above, the civil judgment against the Bank and Mr. Calhoun (among
others) was entered on August 25, 2011. Shortly thereafter, Mr. Calhoun’s civil counsel,
Mr. Friedman, notified him that he intended to ask the Bank to retain and pay for criminal
counsel for Mr. Calhoun. Mr. Friedman explained that if Mr. Calhoun testified to the
grand jury that the alleged fraud originated with him and other Tri-County leadership,
that testimony could help overturn the civil judgment against the Bank.
Mr. Friedman also prepared an “Affidavit of Non-Prosecution” for the Bank to
sign, which said, “It is Texas Capital Bank’s desire that Michael S. Calhoun not be
prosecuted for any alleged offense arising out of or related to” Tri-County’s business
with the Bank. Calhoun ROA, Vol. I at 54. Mr. Friedman assured Mr. Calhoun that even
if he did get indicted, he would only receive probation. Mr. Calhoun agreed to Mr.
Friedman’s plan and terminated Mr. Starr’s representation. The Bank then selected and
retained Robert Wyatt to represent Mr. Calhoun. According to Mr. Calhoun, Mr. Wyatt
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even offered to have the Bank refinance his mortgage to assist with his financial
difficulties if he cooperated fully with the Government.
Mr. Wyatt represented Mr. Calhoun for two months in the fall of 2011. He spoke
with the Assistant United States Attorney on the case, Ryan Roberts, and negotiated a
plea deal under which Mr. Calhoun would plea to a one count indictment with his
sentence capped at 60 months. Mr. Calhoun told Mr. Wyatt the deal was not good
enough and refused to appear at meetings Mr. Wyatt set up with the FBI. Mr. Friedman
advised Mr. Calhoun to terminate Mr. Wyatt’s representation, which he did.
Mr. Friedman then contacted the Bank to procure counsel for Mr. Calhoun again.
The Bank hired Tom Mills in late December 2011 or early January 2012. As with Mr.
Wyatt, the Bank paid for Mr. Mills’s representation.
Mr. Mills met with Mr. Calhoun in Mr. Friedman’s office in Texas. At this
meeting, Mr. Friedman told Mr. Mills that he believed Mr. Calhoun should not be
prosecuted or alternatively should receive probation only. Mr. Mills told Mr. Friedman
this “should not be a problem.” Calhoun ROA, Vol. I at 91.
Mr. Mills, Mr. Friedman, and Mr. Calhoun together met with the Bank’s attorneys,
who agreed to contact the United States Attorney’s Office and tell them that the Bank did
not want Mr. Calhoun prosecuted.
Mr. Mills set up a meeting with Agent Youngblood in Oklahoma in January or
February 2012. Mr. Mills told Agent Youngblood that the Bank did not want Mr.
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Calhoun prosecuted. Mr. Calhoun later testified that he believed, based on this exchange,
that he would not be indicted.
On January 19, 2012, Mr. Calhoun gave Agent Youngblood a complete statement
describing Tri-County’s dealings with the Bank, thereby incriminating himself.
On February 15, 2012, Mr. Calhoun testified before the grand jury. Before he
took the stand, Mr. Mills told Mr. Calhoun he was working on a plea deal with AUSA
Roberts, but that Mr. Roberts could not announce the deal until all the other defendants in
the case had been tried and sentenced. Mr. Mills allegedly told Mr. Calhoun that under
the terms of this deal, he would receive probation after giving substantial assistance to the
grand jury investigation.
During Mr. Calhoun’s grand jury testimony, AUSA Roberts asked him if he
understood he had a deal with the Government whereby he would plead guilty to a one-
count indictment for conspiracy to defraud a financial institution and his sentence would
be capped at five years, with a downward departure to less than five years if he provided
substantial assistance. Mr. Calhoun said yes, but later testified at the district court’s
hearing on his motion to quash that he believed the downward departure would get him to
probation at worst.
In his grand jury testimony, Mr. Calhoun incriminated himself and his co-
defendants, including Mr. Davis and Mr. Tucker. At the district court hearing on his
motion to quash, Mr. Calhoun testified his grand jury testimony was fully truthful.
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4. Mr. Mills’s Correspondence with the Bank
Mr. Mills exchanged correspondence with the Bank about Mr. Calhoun’s
representation, which Mr. Calhoun argues is evidence of Mr. Mills’s conflict of interest.
On June 11, 2012, the Bank’s civil attorney, Stephen Jones, sent a letter to Mr.
Mills. In this letter, Mr. Jones stated that he had informed the Bank of Mr. Mills’s latest
billing, for which he would receive payment shortly. Mr. Jones also sought to clarify the
payment arrangement with the Bank, reminding Mr. Mills the Bank would pay for Mr.
Calhoun’s “reasonable, ordinary and necessary fees and expenses if he was cooperating
with federal and/or state law enforcement agents or prosecutors in their investigation.”
Calhoun ROA, Vol. I at 93. Mr. Jones stated that the Bank
will not pay, nor did it agree to pay, for any work performed by [Mr.
Calhoun’s] criminal defense attorney which represents an effort to
prepare for trial on an indictment. In other words, we encourage his
cooperation, but the Bank will not pay for a defense for someone who
is fighting an indictment where the Bank itself is the victim.
Id.
Mr. Jones also complained in the letter that Mr. Calhoun had not yet met with the
Bank’s attorneys and investigators to be “debriefed” about the civil litigation. Id. at 94.
He requested an outline of the remaining work to be done in the criminal representation,
along with a litigation budget. Id.
Mr. Mills responded to Mr. Jones on June 15, 2012. He stated, in pertinent part,
At no time in the past or present, or anticipated in the future have I
ever billed, nor will I, for defending [Mr. Calhoun] against criminal
charges. He is cooperating with the federal government, the state
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government and will be debriefed by the bank and will testify for the
bank as requested. I do not know where that thought came from, but
if it came from me, it was a miscommunication. If [Mr. Calhoun]
ever “blows up” and says he wants a trial, I know that I will not be
paid for such representation. He has never indicated that he was
going to go that course.
Id. at 94-95.
B. Procedural Background
A grand jury indicted the Defendants on August 15, 2012, wholly on the basis of
Mr. Calhoun’s grand jury testimony. The 60-count indictment charged Mr. Calhoun, Mr.
Davis, and Mr. Tucker (along with Mr. Kayvonfar and Mr. Spires, the ATI employees
who had allegedly forwarded fraudulent MSO’s to Tri-County) with the following:
Count 1—Conspiracy to Commit Wire Fraud or Mail Fraud, in violation of 18 U.S.C.
§ 1349; Counts 2-31—Wire Fraud, in violation of 18 U.S.C. § 1343; and Counts 32-60—
Mail Fraud, in violation of 18 U.S.C. § 1341.
On November 27, 2012, the Government filed a felony information charging Mr.
Calhoun with a single count of conspiracy to commit a criminal offense or defraud the
United States in violation of 18 U.S.C. § 371. Mr. Mills encouraged Mr. Calhoun to
plead guilty to the one-count information in anticipation of the negotiated plea
agreement.
Mr. Mills and Mr. Calhoun prepared to attend a change of plea hearing on
November 30, 2012, but on the way to the courthouse, Mr. Calhoun told Mr. Mills that he
had changed his mind and refused to plead guilty. Mr. Mills notified the district court,
and the plea hearing was cancelled.
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On December 10, 2012, Mr. Mills moved to withdraw as Mr. Calhoun’s counsel,
citing “irreconcilable differences [with Mr. Calhoun] in how to proceed with the case.”
Calhoun ROA, Vol. I at 38. The district court granted the motion and, on January 14,
2013, appointed James Wilcoxen as Mr. Calhoun’s counsel. Mr. Wilcoxen has continued
to represent Mr. Calhoun on appeal.
On May 2, 2013, Mr. Calhoun—acting through Mr. Wilcoxen—moved to quash
the indictment and to suppress his grand jury testimony. Mr. Calhoun contended that
because the Bank paid Mr. Wyatt and Mr. Mills, a conflict of interest tainted their advice
to Mr. Calhoun to testify before the grand jury and thus violated Mr. Calhoun’s Sixth
Amendment right to effective assistance of counsel. See Mickens v. Taylor, 535 U.S.
162, 171 (2002) (noting that a defendant can obtain relief under the Sixth Amendment
without showing prejudice if he can demonstrate that “an actual conflict of interest
actually affected the adequacy of his representation” (quotations omitted)). Mr. Calhoun
further argued that Mr. Wyatt and Mr. Mills effectively compelled him to deliver his
grand jury testimony and that use of this testimony would violate his Fifth Amendment
protection against self-incrimination. See Ledbetter v. Edwards, 35 F.3d 1062, 1067 (6th
Cir. 1994) (“The Fifth Amendment prohibits the prosecution’s use of a defendant’s
compelled testimony.” (citing Oregon v. Elstad, 470 U.S. 298, 306-07 (1985)).3
3
Mr. Calhoun’s motion to quash the indictment also argued that the admission of
his grand jury testimony violated his due process rights under the Fourteenth
Amendment, which prohibits the admission of coerced confessions. See Ledbetter v.
Continued . . .
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Mr. Tucker and Mr. Davis filed joinder motions and were granted leave to join
Mr. Calhoun’s motion to quash. Mr. Davis’s joinder motion added another argument that
the Defendants have also raised on appeal: The indictment violated the Defendants’ Fifth
Amendment right to be properly indicted before a grand jury.
The matter was referred to a magistrate judge for a recommendation pursuant to
Federal Rule of Criminal Procedure 59(b)(1). The magistrate judge recommended the
district court deny the Defendants’ motion to quash because Mr. Calhoun had not proved
an actual conflict of interest in Mr. Wyatt’s and Mr. Mills’s representation of him.
Specifically, the magistrate judge noted that under this circuit’s recent decision in United
States v. Flood, 713 F.3d 1281 (10th Cir. 2013), a third-party fee arrangement does not
automatically create a conflict of interest in a criminal case. As we explained in Flood,
An actual conflict of interest exists only if counsel was forced to make
choices advancing interests to the detriment of his client. In other words,
there must be more than a potential conflict of interest or a mere theoretical
______________________________________
Cont.
Edwards, 35 F.3d 1062, 1067 (6th Cir. 1994) (noting, in the context of a state prisoner’s
habeas petition under 28 U.S.C. § 2254, that the Due Process Clause of the Fourteenth
Amendment “prohibits the admission of coerced confessions procured by means ‘so
offensive to a civilized system of justice that they must be condemned’” (quoting Miller
v. Fenton, 474 U.S. 104, 109 (1985)). The Fourteenth Amendment Due Process Clause is
inapplicable in this instance, however, because this federal criminal prosecution does not
involve a state actor. See U.S. Const. amend. XIV, § 1 (“nor shall any state deprive any
person of life, liberty, or property, without due process of law” (emphasis added));
Malloy v. Hogan, 378 U.S. 1, 8 (1964) (“The Fourteenth Amendment secures against
state invasion the same privilege that the Fifth Amendment guarantees against federal
infringement—the right of a person to remain silent unless he chooses to speak in the
unfettered exercise of his own will . . . .”).
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division of loyalties. To prevail, the defendant has the burden of showing
specific instances to support [his or] her claim of actual conflict of interest.
Id. at 1286-87 (quotations and citations omitted). The magistrate judge concluded Mr.
Calhoun had failed to meet this burden.
On June 13, 2013, the district court adopted the magistrate judge’s Findings and
Recommendation in full and dismissed the motion to quash the indictment and suppress
Mr. Calhoun’s grand jury testimony. The district court agreed the Defendants had not
demonstrated an actual conflict of interest as required by Flood. The district court added
that it was unpersuaded by the Defendants’ argument “that Mr. Calhoun’s testimony was
in a sense compelled.” Calhoun ROA, Vol. I at 107. The court noted that the Fifth
Amendment privilege is not self-executing, and “[a]n individual who makes self-
incriminating statements without claiming the privilege is deemed not to have been
‘compelled’ but to have spoken voluntarily.” Id. (quoting United States v. Ramos, 685
F.3d 120, 127 (2d Cir. 2012)).
The Defendants urge us to exercise jurisdiction over these interlocutory appeals
under the collateral order doctrine and reverse the district court’s denial of their motion to
quash the indictment and suppress Mr. Calhoun’s grand jury testimony. The district
court has stayed further proceedings pending the disposition of these appeals.
II. DISCUSSION
Because we hold that we lack jurisdiction, we do not reach the merits of the
Defendants’ appeals.
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A. Standard of Review
Whether we have interlocutory jurisdiction under the collateral order doctrine is a
legal question that we determine in the first instance. See United States v. P.H.E., Inc.,
965 F.2d 848, 850 (10th Cir. 1992).
B. Legal Framework
We briefly review the collateral order doctrine and its applications in criminal
cases.
1. Cohen’s Collateral Order Doctrine
The jurisdictional question in this case arises because the Defendants’ prosecution
is still pending in the district court. Ordinarily, our appellate jurisdiction is limited to
“final decisions of the district courts.” 28 U.S.C. § 1291. For this reason, we generally
lack jurisdiction to review appeals by criminal defendants before the district court enters
final judgment—meaning an order that “ends the litigation on the merits.” Van
Cauwenberghe v. Biard, 486 U.S. 517, 521 (1988) (quotations omitted); see United
States v. Angilau, 717 F.3d 781, 785 (10th Cir. 2013).4
Limited exceptions to this general principle arise, however, under the so-called
“collateral order doctrine,” first articulated in Cohen v. Beneficial Industrial Loan Corp.,
4
By contrast, the Government is permitted by statute to bring interlocutory
appeals of district court orders (1) dismissing an indictment or information (or any part
thereof); (2) suppressing or excluding evidence; or (3) granting the release of a defendant
or denying a motion for revocation or modification of an order granting release. See 18
U.S.C. § 3731.
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337 U.S. 541, 546 (1949). See Angilau, 717 F.3d at 785. Cohen recognized a “small
class” of district court orders that “finally determine claims of right separable 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.” 337 U.S. at 546.
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.” Coopers & Lybrand v. Livesay, 437
U.S. 463, 468 (1978); see also Angilau, 717 F.3d at 785; Milk ‘N’ More, Inc. v. Beavert,
963 F.2d 1342, 1344-45 (10th Cir. 1992). An order is “effectively unreviewable” under
the third factor if it “involves an asserted right the legal and practical value of which
would be destroyed if it were not vindicated before trial.” United States v. Quaintance,
523 F.3d 1144, 1146 (10th Cir. 2008) (quoting Lauro Lines S.R.L. v. Chasser, 490 U.S.
495, 498-98 (1989)).
2. Collateral Orders in the Criminal Context
Although courts use the collateral order doctrine in a variety of civil litigation—
most notably, to permit appeals from denials of qualified immunity in cases brought
under 42 U.S.C. § 1983, see Mitchell v. Forsyth, 472 U.S. 511, 525-27 (1985)—the
Supreme Court has instructed that courts should use the exception to the finality
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requirement sparingly in the criminal context, see United States v. Wampler, 624 F.3d
1330, 1334 (10th Cir. 2010).
“Because of the compelling interest in prompt trials,” the Court has “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, the Supreme Court has applied the collateral order exception in only
three categories of criminal cases: appeals from (1) motions to reduce bail; (2) motions
to dismiss based on double jeopardy grounds; and (3) motions to assert immunity under
the Speech or Debate Clause of the Constitution. See United States v. Hollywood Motor
Car Co., Inc., 458 U.S. 263, 265-66 (1982); see also United States v. Culbertson, 598
F.3d 40, 46 (2d Cir. 2010).
We have stated often that a criminal defendant invoking the collateral order
exception must assert a “right not to be tried,” Quaintance, 523 F.3d 1146, resting upon
“an explicit statutory or constitutional guarantee that trial will not occur,” Midland
Asphalt Corp. v. United States, 489 U.S 794, 801 (1989). See, e.g., Wampler, 624 F.3d at
1335-36; Quaintance, 523 F.3d at 1146; United States v. Storey, 2 F.3d 1037, 1041 (10th
Cir. 1993). This requirement is rarely satisfied because there is a “crucial distinction
between a right not to be tried and a right whose remedy requires the dismissal of
charges.” Midland Asphalt, 489 U.S. at 801. Accordingly, very few motions to dismiss
an indictment—even if founded on a valid constitutional right—will give rise to
interlocutory appellate jurisdiction.
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Put another way, a criminal defendant bringing an interlocutory appeal must assert
a right that cannot be vindicated on direct appeal or collateral review. See Lauro Lines,
490 U.S. at 498-99. The three categories in which the Supreme Court has permitted
interlocutory criminal appeals illustrate this principle.
First, a motion to reduce bail is eligible for appellate review before trial because
the right at issue—the right to reasonable bail under the Eighth Amendment—must be
preserved “before trial,” or else it would “lose its meaning.” Stack v. Boyle, 342 U.S. 1, 4
(1951). The right will be rendered moot after either sentencing or acquittal. A defendant
found guilty will no longer have the option of posting bail under the original bail order.
See 18 U.S.C. § 3143(a) and (b) (establishing separate requirements for release pending
sentence and appeal). A defendant found not guilty will have no need for bail. An order
fixing bail is separate from the merits of trial, and “unless it can be reviewed before
sentence, it can never be reviewed at all.” Stack, 342 U.S. at 12.
Second, a Double Jeopardy Clause claim would be rendered meaningless if
motions to dismiss on double jeopardy grounds were not immediately reviewable. The
Double Jeopardy Clause guarantees that no person shall “be subject for the same offense
to be twice put in jeopardy of life or limb.” U.S. Const. amend. V (emphasis added). By
its own terms, the clause protects defendants from standing trial for an offense for which
they have already been placed in jeopardy. See Abney v. United States, 431 U.S. 651,
661 (1977). “[I]f 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
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indictment must be reviewable before that subsequent exposure occurs.” Id. at 662
(emphasis added).
Third, the same reasoning applies to interlocutory review of motions asserting
immunity under the Speech or Debate Clause, which guarantees that members of
Congress shall not be “questioned in any other Place”—i.e. in court—“for any Speech or
Debate in either House.”. U.S. Const. Art. I, § 6, cl. 1. The Supreme Court has noted
that just as the Double Jeopardy Clause protects individuals against being twice put to
trial for the same offense, “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.’” Helsostski v. Meanor, 442 U.S. 500, 508 (1979)
(quoting Dombrowski v. Eastland, 387 U.S. 82, 85 (1967) (per curiam)). The Speech or
Debate Clause, then, grants members of Congress immunity from certain prosecutions. A
motion to dismiss an indictment based on this clause is therefore reviewable on
interlocutory appeal in the same manner as a denial of qualified immunity for purposes of
42 U.S.C. § 1983. See, e.g., Ortiz v. Jordan, 131 S. Ct. 884, 891 (2011).
Although the Tenth Circuit has rarely permitted interlocutory criminal appeals that
do not precisely fit one of these three traditional categories, we have done so only when
the asserted right cannot be vindicated after trial, as will be discussed in further detail
below. See In re Grand Jury Proceedings, 616 F.3d 1172, 1179 (10th Cir. 2010)
(allowing appellant to bring an interlocutory appeal challenging a grand jury subpoena
served on a third party); United States v. Deffenbaugh Indus., Inc., 957 F.2d 749, 754-55
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(10th Cir. 1992) (permitting interlocutory review of district court’s denial of motion to
access the record of the number of jurors concurring in the indictment); see also United
States v. P.H.E., Inc., 965 F.2d 848, 855 (10th Cir. 1992) (permitting defendants to
immediately appeal the denial of their motion to dismiss an indictment based on an
“unusual, perhaps unique confluence of factors: substantial evidence of an extensive
government campaign, of which this indictment is only a part, designed to use the burden
of repeated criminal prosecutions to chill the exercise of First Amendment rights”). But
see Angilau, 717 F.3d at 786 (noting that “[w]hatever the merits of P.H.E. under current
Supreme Court law,” the decision was “very narrow” and did not extend to claims of
prosecutorial harassment that did not implicate the First Amendment).
Notably, even if a post-judgment appeal “may afford the defendant only an
‘imperfect’ remedy,” we have declined to entertain interlocutory appeals where “some
meaningful review is available after trial.” Wampler, 624 F.3d at 1335 (quoting Mohawk
Indus., Inc. v. Carpenter, 558 U.S. 100, 107 (2009)).
C. Analysis
Defendants ask us to apply the collateral order exception in a context we have not
previously addressed: an appeal from a motion to dismiss an indictment and suppress
grand jury testimony based on (1) the Fifth Amendment right to be indicted by a grand
jury; (2) the Fifth Amendment privilege against self-incrimination; and (3) the Sixth
Amendment right to effective assistance of counsel. We hold the collateral order
exception inapplicable here and consequently dismiss these appeals.
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1. Cohen Factors
We may reach the merits of the Defendants’ claims only if the district court’s
order in this case (1) conclusively determined (2) an important issue separate from the
merits of the case that (3) will be “effectively unreviewable” once final judgment is
entered. Coopers & Lybrand, 437 U.S. at 468 & n.10 (citing Cohen, 337 U.S. at 546).
The parties appear to agree that the first two requirements are satisfied here. The
district court’s order (1) conclusively determined that (2) the indictment in this case is
substantively valid—an important conclusion that is separate from the Defendants’ guilt
or innocence. The crucial question centers on the third collateral order requirement:
whether the district court’s order is “effectively unreviewable” on appeal from final
judgment. Id. at 468. We conclude it is not.
Defendants have provided no reason why their claims are not reviewable on direct
appeal or collateral review. Instead, they argue that because Mr. Calhoun has testified to
a grand jury that he was involved in fraudulent conduct, he “cannot effectively defend
himself” at trial, and neither can his co-defendants. Aplt. Suppl. Br. at 3. In other words,
the Defendants contend their fate at trial is predetermined unless the indictment is
dismissed. But they have failed to demonstrate that they could not secure this remedy
after trial on appeal from a final judgment.
Of course, the Defendants may prefer to avoid the expense of trial in this situation.
But the Supreme Court has cautioned that while one might argue that “any claim,
particularly a constitutional claim, that would be dispositive of the entire case if decided
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favorably to a criminal defendant, should be decided as quickly as possible,” courts must
be hesitant to expand the collateral order doctrine lest “the policy against piecemeal
appeals in criminal cases . . . be swallowed by ever-multiplying exceptions.” Hollywood
Motor Car Co., Inc., 458 U.S. at 270; see also id. at 269 (noting that interlocutory
jurisdiction is not automatic “[e]ven when the vindication of the defendant’s rights
requires dismissal of charges altogether”).
Furthermore, we have specifically held that an improperly denied motion to
dismiss can be meaningfully vindicated after trial, because “an appellate court can still
undo an unlawful conviction[,] . . . [which] is generally all that’s required or permitted by
§ 1291.” Wampler, 624 F.3d at 1335 (citing Mohawk, 558 U.S. at 106). Here, the
Defendants may proceed to trial and, if convicted, raise the same challenges they bring
now in hopes of having their convictions overturned.5 Indeed, the Defendants’ Fifth
Amendment claims are reviewable on direct appeal. See, e.g., United States v. Kingston,
971 F.2d 481, 490-91 (10th Cir. 1992) (reviewing on direct criminal appeal a district
court’s denial of a defendant’s motion to dismiss an indictment on Fifth and Sixth
Amendment grounds). Their Sixth Amendment claims asserting ineffective assistance of
counsel can and generally must be brought in a habeas action for post-conviction relief
under 28 U.S.C. § 2255. See generally United States v. Galloway, 56 F.3d 1239 (10th
5
We make no determination as to whether Mr. Davis and Mr. Tucker would
independently have standing to bring their claims alleging violations of Mr. Calhoun’s
personal Fifth Amendment and Sixth Amendment rights.
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Cir. 1995) (en banc). Although these avenues for relief might be “imperfect,” see
Wampler, 624 F.3d at 1335, they are sufficient to bar interlocutory review in this case.
The Supreme Court has instructed against “individualized jurisdictional inquiry,”
instead directing us to focus on “the entire category to which a claim belongs.” Mohawk
Indus., 558 U.S. at 107 (quotations omitted). Viewing the Defendants’ Fifth and Sixth
Amendment claims categorically, we conclude they are fundamentally unlike the three
categories of claims for which the Supreme Court has permitted interlocutory criminal
appeals, all of which involve rights that cannot be vindicated on direct appeal or other
post-conviction review.
2. Defendants’ Arguments
The Defendants acknowledge this case does not fit within one of the three
categories for which the Supreme Court has permitted interlocutory criminal appeals—
(1) motions to reduce bail, (2) motions to dismiss on double jeopardy grounds, and
(3) motions to assert Speech or Debate Clause immunity. See Hollywood Motor Car Co.,
458 U.S. at 265-66. But they nonetheless urge us to consider their appeals, arguing (a)
their claims implicate important rights and (b) their cases are similar to two instances in
which the Tenth Circuit has permitted interlocutory criminal appeals.
a. Importance and nature of rights
Defendants argue their claims—particularly under the Fifth Amendment
Indictment Clause—are comparable to claims under the Double Jeopardy Clause, which
are reviewable immediately. See Abney, 431 U.S. at 660; see also Angilau, 717 F.3d at
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786. “Just as a defendant has a right not to be put in jeopardy twice for the same
offense,” they contend, “he has a right to only be prosecuted by way of a fair jury
process.” Aplt. Suppl. Br. at 13. Because both rights are equally important, the
Defendants argue, both should give rise to interlocutory jurisdiction. We disagree.
The constitutional rights at stake here are important. Moreover, we share the
district court’s view that “[t]he potential ethical and professional ramifications for the
attorneys involved are myriad,” and likewise do not condone any conflict of interest in
Mr. Calhoun’s legal representation. Calhoun ROA, Vol I. at 98. But the collateral order
doctrine does not turn on the importance of the right asserted. The critical inquiry instead
concerns the nature of the right and whether it can be vindicated after trial. As discussed
above, Defendants’ rights in this case can be reviewed on direct appeal or collateral
review.
b. Tenth Circuit cases
The Defendants also call our attention to two cases in which we permitted
interlocutory criminal appeals outside the three categories in which the Supreme Court
has done so. We find both of these cases unavailing.
i. In re Grand Jury Proceedings
First, the Defendants point to our interlocutory review of a grand jury issue in In
re Grand Jury Proceedings, 616 F.3d 1172, 1179 (10th Cir. 2010). The appellant in that
case was the target of a grand jury investigation. His two attorneys—who were not
parties to the appeal—were subpoenaed to appear before the grand jury, and both
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indicated that they were prepared to testify rather than risk contempt. Id. at 1176-78.
The appellant moved to quash both subpoenas, contending the attorneys’ testimony
would implicate the attorney-client and work product privileges and violate his Sixth
Amendment right to effective assistance of counsel. Id. at 1176. The district court
denied his motion but stayed the subpoenas while the appellant appealed. Id. at 1178.
This court permitted the appellant to bring his interlocutory appeal pursuant to the
Perlman rule, which permits a person claiming a privilege to immediately appeal the
denial of a motion to quash a grand jury subpoena served on a third party (such as the
subpoenaed attorneys in In re Grand Jury Proceedings), so long as the appellant is not
the subpoenaed witness. Id. at 1749; see Perlman v. United States, 247 U.S. 7, 13 (1918).
The Defendants contend In re Grand Jury Proceedings “recognizes that there are
limited circumstances where this Court does have interlocutory jurisdiction to ensure the
integrity of the [grand jury] process.” Aplt. Suppl. Reply Br. at 5. They argue that their
case, like In re Grand Jury Proceedings, implicates the Defendants’ Sixth Amendment
rights and should therefore be immediately reviewable. We disagree.
The holding in In re Grand Jury Proceedings is narrow and has not been extended
beyond its facts. See In re Grand Jury Subpoena, 709 F.3d 1027, 1029-30 (10th Cir.
2013) (refusing to extend In re Grand Jury Proceedings to permit interlocutory review
for a witness who claimed that his personal Fifth Amendment right was violated by a
subpoena that he received in his capacity as corporate record custodian). The specialized
Perlman rule applies in our circuit only to cases in which “an interlocutory appeal is
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sought by an intervenor who claims a justiciable interest in preventing a third party’s
disclosure of documents or testimony, and the party subject to the subpoena indicates that
he or she will produce the records or testify rather than risk contempt.” In re Grand Jury
Proceedings, 616 F.3d at 1179.
The rationale for this rule is plain. Although the denial of a motion to quash a
grand jury subpoena is generally not immediately appealable, see id. at 1179, the
Perlman rule provides a narrow exception that applies where the appellant is not the
recipient of the subpoena. Interlocutory review is necessary in such a circumstance
because unlike a subpoenaed witness—who can raise his or her objections to the
subpoena on appeal from a contempt citation if necessary—the party asserting the
privilege is “without power to prevent the third party from complying with the
subpoena.” Id. In other words, the appellant cannot assert his or her interest in a
privilege except by interlocutory appeal because he or she lacks the power to seek
recourse on appeal from a contempt citation or other final judgment. See id.; In re Grand
Jury Subpoena, 709 F.3d at 1030.
ii. United States v. Deffenbaugh Industries, Inc.
Second, the Defendants cite United States v. Deffenbaugh Industries, Inc., 957
F.2d 749, 754 (10th Cir. 1992). The defendants in that case were indicted on a number of
charges, including a count of false statements in violation of 18 U.S.C. § 1001. The
district court dismissed that count of the indictment, finding § 1001 was inapplicable to
the particular statements defendants had made. Id. at 750-52. The Government appealed
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the dismissal of the count under 18 U.S.C. § 3731. See id. at 750. In response, the
defendants brought an interlocutory cross-appeal challenging the district court’s order
denying the defendants access to the record of the number of jurors concurring in the
indictment. The defendants questioned whether the grand jury vote was adequate to
support the indictment. Id. at 754-55.
Addressing the defendants’ interlocutory cross-appeal, we noted that “technical
challenges to the grand jury process,” such as a claim that an indictment is not supported
by enough votes, “are not reviewable upon appeal after trial” because under the Fifth
Amendment, the lack of a valid grand jury indictment gives rise to a right not to be tried.
Id. (citing Midland Asphalt,489 U.S. at 794, 802); see U.S. Const. amend. V (“No person
shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury . . . .”). This right not be tried is implicated by
any “defect so fundamental that it causes . . . the indictment no longer to be an
indictment,” Deffenbaugh, 957 F.2d at 755 (quoting Midland Asphalt, 489 U.S. at 802),
and an inadequate grand jury vote is one such defect, id.
The Defendants contend that the circumstance in this case—where Mr. Calhoun
arguably indicted himself by following the advice of counsel operating under a
fundamental conflict of interest—is another such defect. We disagree for two reasons:
(1) the Defendants’ substantive challenges to the indictment here can be vindicated after
a final judgment, unlike the defendants’ technical claims in Deffenbaugh; and (2) we
have refused to extend Deffenbaugh beyond its peculiar facts.
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1) Deffenbaugh’s technical challenge
Deffenbaugh involved “substantial claims attacking the technical validity of the
grand jury process” that called into question the very existence of an indictment.
Deffenbaugh, 957 F.2d at 755 (emphasis added). Specifically, the district court denied
the defendants’ motion to access the record of the number of jurors concurring in the
indictment. The defendants based their motion on an allegation that there were
inadequate votes to support the indictment. Id. As this court explained, an inadequate
vote total is a “fundamental defect” that “causes the indictment no longer to be an
indictment.” Id. A defendant indicted by an insufficient number of jurors has not been
indicted at all. The defendant’s constitutional guarantee to be free from trial “unless on a
presentment or indictment of a Grand Jury,” U.S. Const. amend. V, is violated upon
being forced to stand trial, much like a defendant’s Double Jeopardy Clause right or
Speech and Debate Clause immunity. If the defendant is forced to wait for post-
conviction relief, this right cannot be vindicated.
In this case, in contrast, the Defendants do not challenge the existence of a
technically valid indictment. They instead allege the indictment was based on
unconstitutionally obtained testimony and therefore invalid as a legal matter. This is a
fundamentally different claim. The Supreme Court explained why this is so in an opinion
rejecting interlocutory appeal of an order dismissing a motion to quash an indictment
based on an alleged violation of grand jury secrecy under Federal Rule of Criminal
Procedure 6(e):
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[The Grand Jury Clause] does indeed confer a right not to be tried (in the
pertinent sense) when there is no grand jury indictment. Undoubtedly the
common-law protections traditionally associated with the grand jury attach
to the grand jury required by this provision—including the requisite secrecy
of grand jury proceedings. But that is far from saying that every violation
of those protections, like the lack of a grand jury indictment itself, gives
rise to a right not to be tried. We have held that even the grand jury’s
violation of the defendant’s right against self-incrimination does not trigger
the Grand Jury Clause’s “right not to be tried.” Lawn v. United States, 355
U.S. 339, 349 (1958). Only a defect so fundamental that it causes the grand
jury no longer to be a grand jury, or the indictment no longer to be an
indictment, gives rise to the constitutional right not to be tried.
Midland Asphalt, 489 U.S. at 802 (emphasis added).
Based on the foregoing, the technical challenge to the existence of an indictment in
Deffenbaugh was immediately reviewable; a substantive challenge to an indictment’s
legal propriety—based on the Fifth Amendment protection against self-incrimination or a
similar constitutional guarantee—is not. The latter circumstance does not implicate a
“right not to be tried” that cannot be vindicated on direct appeal or collateral review.
Defendants have not and cannot show why their challenge to the indictment cannot be
vindicated on direct appeal or collateral review.
2) Deffenbaugh’s limited reach
In addition, our subsequent case law, as well as the Supreme Court’s
admonishments that the collateral order doctrine is limited in scope, especially in
criminal cases, persuade us that Deffenbaugh should be read narrowly. See United States
v. Storey, 2 F.3d 1037, 1042 (10th Cir. 1993) (declining to follow Deffenbaugh); see also
Flanagan, 465 U.S. at 265 (instructing us to interpret the collateral order exception “with
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the utmost strictness in criminal cases”); Angilau, 717 F.3d at 787 (noting “what appears
to be the Supreme Court’s increasing reluctance to expand the collateral-order doctrine”).
We have refused to extend Deffenbaugh’s reach to substantive challenges to an
indictment. In United States v. Storey, the defendants filed a motion to dismiss an
indictment based on two instances of prosecutorial misconduct: (1) a violation of grand
jury secrecy under Rule 6(e), and (2) improper remarks made by the prosecutor in front
of the grand jury. 2 F.3d at 1038. We did not permit them to bring an interlocutory
appeal and specified that Deffenbaugh was inapplicable:
Deffenbaugh involved a clear instance in which the existence of a valid
indictment per se was at issue. In contrast, in this case the grand jury
properly convened and issued a valid indictment. No right to be tried under
the Fifth Amendment is involved on these facts.
Id. at 1042.
The claims in this case are more similar to the grand jury secrecy and prosecutorial
misconduct claims raised in Storey than to the technical challenge in Deffenbaugh. The
grand jury in this case properly convened and issued an indictment. In these
circumstances, Deffenbaugh is inapplicable, and the Defendants’ claims may therefore be
raised only after a final judgment. To hold otherwise would open the door to piecemeal
criminal appellate litigation contrary to clear authority and instruction from the Supreme
Court and the Tenth Circuit.
***
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We conclude the Defendants have failed to support application of the collateral
order doctrine to these appeals. Mindful of the “Supreme Court’s increasing reluctance
to expand the collateral-order doctrine,” particularly in criminal cases, we hold that we
lack jurisdiction to hear this interlocutory appeal. Angilau, 717 F.3d at 787.
III. CONCLUSION
For the foregoing reasons, we dismiss the Defendants’ appeals for lack of
jurisdiction.
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