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United States v. Johns

argued: July 18, 1988.


On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal No. 87-00376-01.

A. Leon Higginbotham, Jr., Becker and Rosenn, Circuit Judges.

Author: Higginbotham



Appellant has been charged in a 56-count indictment that alleges, inter alia, mail fraud in violation of 18 U.S.C. § 1341 (1982). He appeals from the district court's denial of his several motions to dismiss the indictment in which he had alleged various abuses of the grand jury process. Prior to the consideration of the merits of any of these claims, however, we have examined the threshold question of whether the interlocutory order from which Appellant seeks relief fulfills the requirements of the collateral order rule and, therefore, is properly before us at this time. We conclude that the order does not meet those requirements and, accordingly, we will dismiss this appeal.


This appeal arises from a present criminal proceeding in which appellant, H. William Johns, is being tried for participation in a bribery and kickback scheme. During 1983, Walter Rubel, in-house counsel for Acme Markets, Inc. ("Acme"), received information that Johns, Acme's Director of Packaging, Equipment and Supplies Procurement, was receiving kickbacks from some of Acme's vendors. Acme brought that information, together with the results of its own further investigation, to the United States Attorney's Office.

After an extensive criminal investigation, the matter was presented to a grand jury for the Eastern District of Pennsylvania, which returned a 56-count indictment charging Johns with violations of 18 U.S.C. § 1341 (1982) (mail fraud), 18 U.S.C. § 1952 (1982) (use of interstate facility in aid of commercial bribery) and 18 U.S.C. § 2314 (1982) (interstate transportation of securities taken by fraud). The indictment charged that while Johns was employed by Acme, he accepted commercial bribes from outside vendors with whom he had dealt at Acme. It further charged that these vendors made commission payments to three corporations: Pak-All, Alma Trading and Garo Service and that these corporations thereafter made payments to Johns.*fn1

Johns filed several pre-trial motions seeking dismissal of the indictment.*fn2 In the first of these motions, he contended that forty-six of the indictment's fifty-six counts should be dismissed because the government failed to present exculpatory evidence to the grand jury, which the government had obtained from Johns, demonstrating that Acme had suffered no financial loss due to Johns alleged scheme. In the second, he argued that the entire indictment should be dismissed because the government violated Fed. R. Crim. P. 6(e) by disclosing information that had been gathered via grand jury subpoenas to Acme's in-house counsel. In his third motion, Johns asserted that there was a lack of sufficient evidence presented to the grand jury to support the indictment. In his final motion, Johns sought to strike two paragraphs of the indictment, which alleged mail fraud, that he contended were invalid because they were predicated upon a theory -- that the mail fraud statute criminalized an employee's civil breach of a fiduciary duty -- that was rejected by the Supreme Court. See McNally v. U.S., 483 U.S. 350, 107 S. Ct. 2875, 97 L. Ed. 2d 292 (1987).

After a two-day evidentiary hearing, the district court denied each of these motions. Thereafter, Johns timely filed a notice of appeal to this Court from the denial of his motions and also filed a motion to stay the trial proceedings pending the outcome of this appeal, which the district court granted.

As part of its response to Johns' appeal, the government filed a motion to dismiss for lack of jurisdiction and, prior to consideration of the substance of Johns' contentions, we have reviewed the government's challenge to our jurisdiction. Upon that review, we conclude that, at this time, we are without jurisdiction to reach the merits of Johns' appeal.


The government contends that Johns' appeal is not ripe because the order denying the motion to dismiss is not a final judgment within the meaning of this Court's grant of authority, see 28 U.S.C. § 1291 (1982); see also, DiBella v. United States, 369 U.S. 121, 124, 7 L. Ed. 2d 614, 82 S. Ct. 654 (1962), and does not fall into the narrow class of exceptions that enable a party to appeal an interlocutory decision prior to a final judgment of conviction. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 66 L. Ed. 2d 571, 101 S. Ct. 669 (1981). It notes, correctly, that to come within that limited class of exceptions, the interlocutory decision of the trial court must, at a minimum, meet the three following conditions: (1) it "must conclusively determine the disputed question"; (2) it must "resolve an important issue completely separate from the merits of the action"; and (3) it must "be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978) (footnote omitted). The government argues that the issues raised by Johns are neither collateral to, nor separable from, the principal issue of guilt that will be resolved at trial.

Johns asserts that his case falls within one of the exceptions, namely the "collateral order" rule established by Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949); see also, Abney v. United States, 431 U.S. 651, 52 L. Ed. 2d 651, 97 S. Ct. 2034 (1977). He contends that, as a result of the Supreme Court's decision in United States v. Mechanik, 475 U.S. 66, 89 L. Ed. 2d 50, 106 S. Ct. 938 (1986), the decisions for which he ...

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