Public-domain · open source
OpenJurist

144 F.3d 74

Docket No. 98-3054.

In re Sealed Case

Second Circuit Court of Appeals

Decided May 15, 1998.

Second Circuit Court of Appeals · decided 1998-05-15

Cited by 5 later decisions — most recently December 2003

3 federal appellate · 1 district ·

Applies 28 U.S.C. § 1291

Relies on Cohen v. Beneficial Industrial Loan Corp. · Flanagan v. United States · United States v. MacDonald

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1998-05-15

View the full empirical analysis of this case →

¶1*75Before GINSBURG, RANDOLPH, and TATEL, Circuit Judges.

¶2PER CURIAM

¶3We dismiss this appeal from the district court’s ruling that appellant has not been given a grant of immunity by the United States, here acting through the Office of Independent Counsel. Under 28 U.S.C. § 1291, the courts of appeals have jurisdiction of appeals from “final decisions of the district courts____” In criminal cases the final judgment rule “prohibits appellate review until after conviction and imposition of sentence.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989). Appellant has not been indicted, let alone tried and convicted. Appellant has not refused to testify before the grand jury and, for that refusal, been held in contempt of court. Nor is there any basis for treating this appeal under the narrow exception of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

¶4If appellant is ultimately indicted and convicted, and if it turns out that, contrary to the district court’s ruling, appellant had immunity from such prosecution, then “[dismissal of the indictment is the proper sanction,” United States v. MacDonald, 435 U.S. 850, 860 n. 7, 98 S.Ct. 1547, 1553 n. 7, 56 L.Ed.2d 18 (1978). But the Supreme Court has held specifically that an individual’s claimed “right” not to be indicted because of an immunity deal does not mean that the individual “can pursue interlocutory appeals” to establish that right. Id. Heike v. United States, 217 U.S. 423, 431, 30 S.Ct 539, 542, 54 L.Ed. 821 (1910), upon which the Supreme Court relied in MacDonald, is directly on point: even transactional immunity conferred by statute does not “give a right of review upon any other than final judgments.” See Flanagan v. United States, 465 U.S. 259, 270, 104 S.Ct. 1051, 1057, 79 L.Ed.2d 288 (1984); United States v. Macchia, 41 F.3d 35 (2d Cir.1994).

¶5Appeal dismissed.

/144/f3d/74 · .json · Public domain