United States Court of Appeals
For the First Circuit
No. 20-1787
UNITED STATES,
Appellee,
v.
SHELLEY M. RICHMOND JOSEPH,
Defendant, Appellant.
No. 20-1794
UNITED STATES,
Appellee,
v.
WESLEY MACGREGOR,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
Thomas M. Hoopes, with whom Douglas S. Brooks, Libby Hoopes
Brooks PC, Elizabeth N. Mulvey, Crowe & Mulvey LLP, Felicia H.
Ellsworth, and Wilmer Cutler Pickering Hale and Dorr LLP were on
brief, for appellant Shelley M. Richmond Joseph.
Rosemary C. Scapicchio for appellant Wesley MacGregor.
Maura Healey, Attorney General of Massachusetts, Robert E.
Toone, Anne Sterman, and Amanda Hainsworth, Assistant Attorneys
General, on brief for The Commonwealth of Massachusetts, amicus
curiae.
Matthew R. Segal, Daniel L. McFadden, Krista Oehlke, and
American Civil Liberties Union Foundation of Massachusetts, Inc.
on brief for The Ad Hoc Committee for Judicial Independence, amicus
curiae.
Sabin Willett, Vanessa M. Brown, and Morgan, Lewis & Bockius
LLP on brief for Legal Scholars, amici curiae.
Howard M. Cooper, Benjamin J. Wish, Maria T. Davis, and Todd
& Weld LLP on brief for The Massachusetts Association of Criminal
Defense Lawyers, amicus curiae.
Donald C. Lockhart, Assistant U.S. Attorney, with whom Andrew
E. Lelling, U.S. Attorney, was on brief, for appellee.
February 28, 2022
KAYATTA, Circuit Judge. These appeals concern the
pending federal prosecution of Massachusetts state district court
judge Shelley Joseph and her courtroom deputy Wesley MacGregor for
actions that allegedly interfered with the enforcement of federal
immigration law. The defendants request that we step in now and
review the trial court's refusal to dismiss their indictments prior
to trial based on (1) Judge Joseph's claim of absolute judicial
immunity and (2) both defendants' contention that their
prosecution offends various provisions of the United States
Constitution.
We must reject the defendants' request for pre-trial
review of the denial of their motions to dismiss because their
appeals are premature. Our explanation follows.
I.
For the purposes of this appeal, the defendants say that
they accept as true the government's allegations as contained in
the indictment. Those allegations outline the following version
of events.
On April 2, 2018, Judge Joseph presided over the
arraignment of an undocumented immigrant referred to by the parties
as A.S.1 A.S. had been fingerprinted upon his arrest by police in
1 As used in the indictment, "A.S." evidently stands for
"alien subject." Because the parties have done so, we use the
moniker for the sake of convenience.
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Newton, Massachusetts. An ensuing check of a national law
enforcement database indicated that he had previously been
deported from the United States and was prohibited from reentering
the country. Federal Immigration and Customs Enforcement (ICE)
issued an immigration detainer and warrant of removal for A.S.
ICE sent these documents to the Newton Police, requesting that
state officials notify ICE before releasing A.S. and, if necessary,
detain him for up to 48 hours to allow ICE to take custody of him.
These documents were provided to the Newton District Court Clerk's
Office, probation, the assistant district attorney, and defense
counsel for A.S.
On April 2, a plainclothes ICE officer entered the
Newton District Court to take A.S. into federal custody should he
be released from state custody. The ICE officer originally sat in
Judge Joseph's courtroom, but Judge Joseph later directed the clerk
to tell the officer to leave. The government alleges that this
directive violated state policy governing the treatment of ICE
officials in Massachusetts courthouses. The clerk did as
instructed, and also told the ICE officer that if released, A.S.
would exit the courtroom into the courthouse lobby.
Ultimately, however, that is not what transpired. A.S.
was released from state custody, but he exited the courthouse
without passing through the lobby where the ICE official waited.
The government alleges that Judge Joseph purposefully helped A.S.
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evade ICE by concocting a ruse under which A.S. would go downstairs
to lockup -- ostensibly to retrieve some property and speak with
his counsel via an interpreter -- then exit the courthouse through
a rear sally-port exit. According to the government, Judge Joseph
directed the clerk to go off the record while she devised this
plan with counsel. At this point, the courtroom recorder was
turned off for nearly a minute, allegedly in violation of
Massachusetts court rules. After the recorder was turned back on
and the alleged plan was set in motion, Deputy MacGregor used his
access card to swipe A.S. out the back door of the courthouse.2
The United States Attorney for the District of
Massachusetts apparently decided that the foregoing events were
best addressed with a criminal indictment rather than a shot-over-
the-bow visit to the courthouse. The indictment charged Judge
Joseph and Deputy MacGregor with conspiring to obstruct justice in
violation of 18 U.S.C. § 1512(c)(2) and (k); obstructing justice
in violation of
18 U.S.C. §§ 2 and 1512(c)(2); and obstructing a
federal proceeding in violation of
18 U.S.C. §§ 2 and 1505.3 Both
defendants moved to dismiss these charges. Judge Joseph argued
that the doctrine of judicial immunity shields her from criminal
2 A.S. was ultimately apprehended roughly two weeks later.
3 Deputy MacGregor was also charged with perjury, but he did
not move to dismiss that charge below, so it is not before us on
appeal.
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prosecution for actions taken in her judicial capacity. Both Judge
Joseph and Deputy MacGregor also argued that their prosecution is
barred by principles of federalism and due process and by Tenth
Amendment precedent holding that the federal government may not
"commandeer" state officials to execute federal policies.
Finally, both defendants argued that the government had not alleged
facts sufficient to support the charges.
The district court rejected the motions to dismiss.
Judge Joseph and Deputy MacGregor timely appealed. For the
following reasons, we find that these appeals are premature, and
we have no jurisdiction to review the merits of the district
court's rulings at this stage of the proceedings.
II.
As a general rule, federal courts of appeal may exercise
appellate jurisdiction only over final decisions. See 28 U.S.C.
§ 1291; DiBella v. United States,
369 U.S. 121, 124 (1962) ("The
general principle of federal appellate jurisdiction . . . requires
that review of . . . proceedings await their termination by
judgment."). "Adherence to this rule of finality has been
particularly stringent in criminal prosecutions because 'the
delays and disruptions attendant upon intermediate appeal,' which
the rule is designed to avoid, 'are especially inimical to the
effective and fair administration of the criminal law.'" Abney v.
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United States, 431 U.S. 651, 657 (1977) (quoting DiBella,
369 U.S.
at 126).
There are, however, several exceptions to this general
rule. As relevant here, those exceptions include the so-called
collateral order doctrine. That doctrine permits an appeals court
to review orders that, without ending the litigation below,
"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 jurisdiction be deferred until the whole case is
adjudicated." Midland Asphalt Corp. v. United States, 489 U.S.
794, 798 (1989) (quoting Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 546 (1949)).
The collateral order doctrine is a narrow exception,
which the Supreme Court "ha[s] interpreted . . . 'with the utmost
strictness' in criminal cases." Id. at 799 (quoting Flanagan v.
United States,
465 U.S. 259, 265 (1984)). To qualify as a
collateral order, the order at issue "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.'"
Id.
(quoting Coopers & Lybrand v. Livesay,
437 U.S. 463, 468 (1978)).
For our purposes, we need only train our attention on
the third requirement -- that the order in question cannot
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effectively be reviewed at the end of the case. The Supreme Court
has to date identified four types of orders that satisfy this
requirement and qualify as collateral orders in criminal
proceedings: orders denying motions to reduce bail, Stack v. Boyle,
342 U.S. 1, 6–7 (1951); orders denying motions to dismiss an
indictment on double jeopardy grounds, Abney, 431 U.S. at 659–62;
orders denying a motion to dismiss an indictment under the
Constitution's Speech or Debate Clause, Helstoski v. Meanor,
442
U.S. 500, 506–08 (1979); and orders allowing involuntary
medication to render a defendant competent to stand trial, Sell v.
United States,
539 U.S. 166, 175–77 (2003).
In each of these instances, Midland Asphalt's third
requirement was satisfied because the protected right (freedom
from excessive bail, a guarantee not to stand trial, and protection
against forced medication) would have been effectively lost if not
vindicated before final judgment entered. Consequently, a post-
judgment appeal would come too late.
So in this case, we ask whether either defendant asserts
a right that would effectively be lost by proceeding to trial. To
answer this question, we consider the rights that the defendants
claim are at stake.
A.
Judge Joseph's primary argument for challenging the
indictment rests on her claim that, as a state district court
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judge, she is immune from federal prosecution for the conduct
alleged in the indictment. This immunity, she argues, protects
her against not just conviction, but also against prosecution.
Thus, she reasons, she will lose an important part of that
protection if her immunity defense is not vindicated until after
trial.
The flaw in this argument is that judicial immunity --
even assuming that it applies in this criminal case -- does not
provide a right not to be tried that can serve as a basis for
interlocutory review. To explain why this is so, we begin with a
rule of construction applicable when a criminal defendant asserts
a right not to stand trial. Midland Asphalt teaches that such a
right must "rest[] upon an explicit statutory or constitutional
guarantee that trial will not occur -- as in the Double Jeopardy
Clause ('nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb'), or the Speech or Debate
Clause ('[F]or any Speech or Debate in either House, [the Senators
and Representatives] shall not be questioned in any other Place')."
489 U.S. at 801 (second and third alterations in original)
(internal citations omitted). In adopting this rule for
interlocutory appeals in criminal cases, the Court recognized
that, absent such a strict construction, very many legal defenses
might be said to confer a right not to be tried.
Id. ("[A]ny
legal rule can be said to give rise to a 'right not to be tried'
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if failure to observe it requires the trial court to dismiss the
indictment or terminate the trial."). So by limiting interlocutory
appeals to those "rights not to be tried" that are explicitly set
forth in a statute or the Constitution, the Court avoided
construing an exception in a manner that swallowed the rule. In
this regard, the requirement that the defense rest on an explicit
statutory or constitutional grant of immunity from trial aligns
with the Supreme Court's practice of "interpret[ing] the
collateral order exception 'with the utmost strictness' in
criminal cases." Id. at 799 (quoting Flanagan,
465 U.S. at 265).
Judge Joseph argues that we should overlook Midland
Asphalt's pronouncement that a right not to be tried must be
explicitly rooted in a statute or the Constitution. In support of
this argument, she points to Sell, 539 U.S. 166. Sell, though,
did not suggest that Midland Asphalt was no longer good law. Sell
did not even involve a claimed right not to be tried. Rather, the
defendant in that case invoked a right not to be involuntarily
medicated.
539 U.S. at 169, 177. So the fact that the Supreme
Court did not seek to locate that particular right in an explicit
statutory or constitutional guarantee provides no basis for
concluding that Sell silently reversed Midland Asphalt's
insistence that, in a criminal case, "[a] right not to be tried"
must "rest[] upon an explicit statutory or constitutional
guarantee that trial will not occur."
489 U.S. at 801 (emphasis
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added); see also Shalala v. Ill. Council on Long Term Care, Inc.,
529 U.S. 1, 3 (2000) (noting that the Supreme Court "does not
normally overturn, or . . . dramatically limit, earlier authority
sub silentio").
Judge Joseph also invokes the Supreme Court's holding in
Mitchell v. Forsyth that "the denial of a substantial claim of
absolute immunity is an order appealable before final judgment."
472 U.S. 511, 525 (1985). But Mitchell was a civil case to which
the more stringent rules applicable to criminal proceedings did
not apply. Midland Asphalt, decided four years after Mitchell,
governs this criminal case. So Judge Joseph cannot obtain
interlocutory review of her judicial immunity defense unless she
can show that her claimed right not to be tried is explicitly
grounded in a statute or the Constitution. Because she concededly
can point to no such grounding, and relies instead solely on the
common law, she necessarily fails to satisfy Midland Asphalt's
strictures.
The bottom line, then, is that we have no jurisdiction
to review the district court's decision denying Judge Joseph's
motion to dismiss based on her asserted common-law defense of
judicial immunity.
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B.
The defendants' claim that the Tenth Amendment to the
United States Constitution bars their prosecution fares no better
as a support for interlocutory review.
The Tenth Amendment provides: "The powers not delegated
to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the
people." U.S. Const. amend. X. In past cases, the Supreme Court
has interpreted the amendment to bar the federal government from
commandeering state executive and legislative officials to
implement federal policies. See, e.g., Printz v. United States,
521 U.S. 898 (1997); New York v. United States,
505 U.S. 144
(1992).
The defendants claim that their prosecution is a tool of
"impermissible commandeering -- an attempt to require state
officers to help enforce federal immigration law." As an initial
matter, this argument seems to undercut the defendants' claim that
a court can adjudicate their defenses without considering facts
contrary to those alleged in the indictment. The indictment does
not allege that Judge Joseph and Deputy MacGregor merely declined
to enforce federal immigration law. Instead, it alleges that they
affirmatively interfered with federal officials' attempts to
enforce federal law. So we are not convinced that the defendants'
Tenth Amendment theory is "completely separate from the merits" of
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the charges against them. Midland Asphalt, 489 U.S. at 799
(quoting Coopers & Lybrand,
437 U.S. at 468).
In any event, the defendants' Tenth Amendment theory
does not satisfy Midland Asphalt's third prong. Citing an
unpublished civil decision of the Tenth Circuit, Judge Joseph and
Deputy MacGregor maintain that the Tenth Amendment should be
understood as conferring a right not to stand trial. See Robertson
v. Morgan County, 166 F.3d 1222 (10th Cir. 1999) (per curiam)
(unpublished table opinion). But that theory fails because we do
not glean in the Tenth Amendment's text any "guarantee that trial
will not occur." Midland Asphalt,
489 U.S. at 801.4
Nor does the defendants' Tenth Amendment defense
implicate some other right that would be lost by proceeding to
trial, at least in this context. At base, the defendants argue
that they had a right to do what they did because federal
immigration officials could not have required them to help enforce
4Although not at issue in this case, the Eleventh Amendment
provides a useful contrast on this point. Its text reads: "The
Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State." U.S. Const.
amend. XI. In the civil context, the Supreme Court has found that
an order denying Eleventh Amendment immunity is an appealable
collateral order because "[t]he Eleventh Amendment is concerned
not only with the States' ability to withstand suit, but with their
privilege not to be sued" in the first instance. P.R. Aqueduct &
Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 141, 146 n.5
(1993).
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federal immigration law. But this defense can be asserted at
trial, with any loss reviewed on appeal from a final judgment.
True, Judge Joseph and Deputy MacGregor will confront
the costs of trial and the very significant anxiety of being
defendants in a federal prosecution. Without minimizing those
adverse consequences, we must recognize that they are visited on
all criminal defendants. So they cannot justify an interlocutory
appeal unless we are to allow such appeals of most motions to
dismiss in criminal cases.
We also acknowledge the related twist on the
commandeering argument emphasized by amici: that this prosecution
will chill other judges from refusing to assist federal officials.
But the facts alleged here -- affirmative acts of deception and
violations of several state policies -- are largely sui generis.
Moreover, every overreaching or overly broad indictment arguably
chills others who see themselves as similarly situated to the
defendants. So if that chilling were sufficient to justify
interlocutory review, very many motions to dismiss of all sorts
would be appealable. Such a result would run directly counter to
Midland Asphalt's insistence that the collateral order exception
be strictly interpreted in criminal cases.
For all of these reasons, the pretrial denial of the
defendants' motions to dismiss based on this Tenth Amendment, anti-
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commandeering defense falls short of satisfying the strict
requirements for interlocutory review in a criminal case.
C.
We turn our attention next to the defendants' claim that
the indictment contravenes principles of federalism and due
process because it "rests on unconstitutionally broad readings of
the obstruction of justice statutes." Citing no authority on this
point, the defendants contend that their prosecution implicates
"constitutional interests" that "cannot be adequately protected if
this case proceeds to trial."
We do not read this claim as asserting that principles
of federalism and/or due process confer a right not to be tried at
all. But to the extent the defendants intended to argue as much,
that argument fails for lack of "an explicit statutory or
constitutional guarantee that trial will not occur." Midland
Asphalt, 489 U.S. at 801.
And with respect to the defendants' due-process claims,
we have concluded in the civil context that if a party's "due-
process rights were violated, there is no reason to assume they
cannot be fully vindicated on final appeal." United States v.
Kouri-Perez, 187 F.3d 1, 14 (1st Cir. 1999). The defendants have
failed to convince us that the result ought to differ in their
criminal case, where the collateral order exception is even more
limited.
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D.
Finally, to the extent that Judge Joseph and Deputy
MacGregor merely allege that the indictment fails to state an
offense, this theory is not amenable to interlocutory appeal. As
the Supreme Court has explained, "an order denying a motion to
dismiss an indictment for failure to state an offense . . . may be
reviewed effectively, and, if necessary, corrected if and when a
final judgment results." Abney, 431 U.S. at 663.5
III.
Given the strictures of the collateral order doctrine as
applied in criminal cases, we find ourselves without jurisdiction
to review before final judgment the district court's order denying
the defendants' motions to dismiss the indictments. We therefore
dismiss their appeals without expressing any views on the merits
of any charges or defenses in this apparently unprecedented
prosecution.
5 The Court also held that such orders are "plainly not
'collateral' in any sense of that term" because they "go[] to the
very heart of the issues to be resolved at the upcoming trial."
Abney, 431 U.S. at 663.
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