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United States v. Fisher

filed: March 31, 1989.

UNITED STATES OF AMERICA
v.
FISHER, HERBERT K., APPELLANT, UNITED STATES OF AMERICA, APPELLEE V. BLOOM, HERMAN, APPELLANT



On Appeal from the United States District Court for the District of Eastern Pennsylvania, D.C. Nos. Cr. 86-00451-18, Cr. 86-00451-19.

Higginbotham, Mansmann, and Garth, Circuit Judges.

Author: Garth

Opinion OF THE COURT

GARTH, Circuit Judge:

This appeal presents as a threshold issue the appealability of the district court's order which denied appellants/defendants, Herbert K. Fisher and Herman Bloom's, motions to dismiss their indictment. The briefs on appeal discussed at length the details of certain alleged misconduct before grand juries by government agents. Because of our disposition, we do not find it necessary to address the arguments made with respect to the particular alleged incidents or the evidence given by the agents, other than to briefly describe the arguments giving rise to the defendants' motions. We will deny both appeals for want of an appealable order.

I.

On October 23, 1986, Fisher and Bloom were indicted along with others (the first indictment), as part of the "Roofers case".*fn1 The indictment charged Bloom with four counts including violations of 18 U.S.C. § 1962 ("RICO" and "RICO" conspiracy), 18 U.S.C. § 1954 (offer to influence operations of an employee benefit plan) and 18 U.S.C. § 664 (embezzlement from an employee benefit plan). Fisher was charged in eight counts with violating the same statutes. On May 14, 1987 the district court ordered a three-way severance of defendants, with Fisher and Bloom constituting one grouping.

On June 18, 1987 Fisher and Bloom were indicted (the second indictment), on charges similar to those alleged in the first indictment. On November 18, 1987, and December 14, 1987, both defendants filed motions to dismiss the first and second indictments. Shortly before a hearing was scheduled by the district court to resolve the contentions raised by Fisher and Bloom concerning the first two indictments, the government announced its intention to seek a second superseding indictment (the third indictment).

On January 21, 1988 Fisher and Bloom were again indicted by a different grand jury in an eight-count indictment and they were again charged under RICO and with RICO conspiracy under 18 U.S.C. §§ 1962(c) and (d), with aiding and abetting the solicitation or acceptance of a kickback to influence the operation of an employee benefit plan, and with embezzlement from the plan under 18 U.S.C. §§ 664 and 1954.

On March 7, 1988 Fisher and Bloom filed supplemental motions to dismiss the third indictment, alleging grounds different than the grounds alleged in the motions brought to dismiss the first two indictments.

Fisher and Bloom claimed that the prosecutor in obtaining the third indictment misled the grand jury and, therefore, the third indictment did not cure the grand jury abuse and prosecutorial misconduct which occurred in connection with the first two indictments. Fisher and Bloom, therefore, contended that all three indictments demonstrated a pattern of harassment and prosecutorial misconduct.

On June 29, 1988 the district court denied Fisher and Bloom's motions to dismiss any of the three indictments. The district court found no misconduct on the part of the government with respect to the grand jury which returned the first two indictments, nor did it find that any prosecutorial misconduct occurred before the final grand jury which returned the third indictment. Because of the nature of the defendants' arguments which claimed a pattern of misconduct extending through all the grand jury proceedings -- a pattern which Fisher and Bloom claimed was not cured by the third indictment -- the district court was obliged to analyze and rule upon the government's conduct before each of the grand juries.

Fisher and Bloom appeal from the district court's June 29, 1988 order relying on the "collateral order" doctrine for appealability. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949).*fn2

II.

Under 28 U.S.C. § 1291, only final orders are appealable. A final order "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978), quoting Catlin v. United States, 324 U.S. 229, 233, 89 L. Ed. 911, 65 S. Ct. 631 (1945). However, an exception to the final order requirement of appealability has emerged. That exception enables a party to appeal an interlocutory decision prior to final judgment of conviction when all three conditions of the "collateral order" doctrine have been satisfied. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 66 L. Ed. 2d 571, 101 S. Ct. 669 (1981).

The collateral order doctrine which found expression in Cohen, supra, permits appellate review of interlocutory orders that: (1) conclusively determine the disputed question; (2) resolve an issue completely separate from and collateral to the merits of the litigation, and; (3) involve an important right that will be effectively unreviewable if intermediate review is not granted. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949); U.S. v. Liotard, 817 F.2d 1074, 1079-80 (3d Cir. 1987); Flanagan v. U.S., 465 ...


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