In Re SEALED CASE

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed May 15, 1998

No. 98-3054

In Re: Sealed Case

On Motion of United States of America to Expedite

Before: Ginsburg, Randolph, and Tatel, Circuit Judges.

Opinion for the Court filed Per Curiam.

Per Curiam: We 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. s 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 (1989). Appellant
has not been indicted, let alone tried and convicted. Appel-
lant 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
(1949).

If appellant is ultimately indicted and convicted, and if it
turns out that, contrary to the district court's ruling, appel-
lant had immunity from such prosecution, then "[d]ismissal of
the indictment is the proper sanction," United States v.
MacDonald, 435 U.S. 850, 860 n.7 (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 (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 (1984); United States v. Macchia, 41 F.3d
35 (2d Cir. 1994).

Appeal dismissed.