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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