Bennett v. Commonwealth of MA

• Court: Court of Appeals for the First Circuit
• Decided: May 9, 1995
• Docket: 95-1281
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

No. 95-1281 

                                VEDA BENNETT, ET AL.,
                                Plaintiffs, Appellees,

                                          v.

                               CITY OF BOSTON, ET AL.,
                                Defendants, Appellees.

                                                
                                      __________

                            COMMONWEALTH OF MASSACHUSETTS,

                                      Appellant.
                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                           Selya and Stahl, Circuit Judges.
                                            ______________

                                 ____________________

            Scott  Harshbarger,  Attorney  General,  and  William  J.   Meade,
            __________________                            ___________________
        Assistant Attorney General, on memorandum of law for appellant.
            Mitchell H.  Kaplan,  Diane L.  Azarian, Richard  J. Maloney,  and
            ___________________   _________________  ___________________
        Choate, Hall & Stewart on  memorandum of law for appellees  Yvonne and
        ______________________
        Shannon Jenkins.

                                 ____________________

                                     May 9, 1995
                                 ____________________



Per Curiam.   In this pending  civil rights action,  the
                 __________

            District  Attorney for Suffolk  County in Massachusetts seeks

            to appeal from an  order mandating that various investigative

            materials in  his  possession  be  disclosed  to  plaintiffs.

            Because   we   lack   jurisdiction  to   entertain   such  an

            interlocutory challenge to a discovery order, the appeal will

            be dismissed.

                                          I.

                 The underlying action arises out of the investigation of

            Willie Bennett for the murder of Carol DiMaiti Stuart.  Eight

            relatives and acquaintances  of Bennett complain  of unlawful

            searches of  their homes  and seizures  of their  persons and

            property  in   connection  with   that  investigation.     In

            particular,  they contend  that the  defendants--the City  of

            Boston, its police  commissioner and  five police  officers--

            coerced   two  teenagers   into   giving   false   statements

            implicating  Bennett  and  thereafter  wrongfully  used  such

            statements  to   obtain  search   warrants   and  for   other

            investigative purposes.

                 In the course of pretrial proceedings, plaintiffs served

            upon the Suffolk District Attorney  (a non-party to the case)

            a subpoena duces tecum  requesting an assortment of materials

            pertaining  to the  murder  investigation.   Among the  items

            sought were  grand jury transcripts,  witness statements, and

            various  materials  concerning  witness  interviews  and  the

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procurement of search  warrants (e.g., police reports,  audio
                                             ____

            and video  tapes, transcripts,  and physical evidence).   The

            District  Attorney moved  to quash,  arguing that  such items

            were  privileged investigative materials and thus were exempt

            from disclosure.   See, e.g.,  United States v.  Cintolo, 818
                               ___  ____   _____________     _______

            F.2d 980,  1002 (1st Cir.) (recognizing  "qualified privilege

            against   compelled   government   disclosure  of   sensitive

            investigative  techniques"),  cert.  denied,  484   U.S.  913
                                          _____________

            (1987).1   Following  a  hearing, the  district court  agreed

            that the grand  jury transcripts need  not be disclosed,  but

            ordered that all non-grand-jury materials be produced subject

            to a  protective order.   The District Attorney  has appealed

            from the latter  portion of this  ruling, and appellees  have

            moved to dismiss for lack of jurisdiction.  

                                         II.

                 Each  of the District  Attorney's attempts  to establish

            appellate   jurisdiction  is  effectively   rebuffed  by  our

            decision  in Corporacion  Insular de  Seguros v.  Garcia, 876
                         ________________________________     ______

            F.2d 254 (1st Cir.  1989).  As we there  explained, discovery

            orders, "whether directed at  parties or at non-parties," are

            generally not appealable as "final decisions" under 28 U.S.C.

              1291.   Id. at 256.   They are generally  not appealable as
                      ___

            "injunctions"  under 28 U.S.C.    1292(a)(1).  Id.   And they
                                                           ___

                                
            ____________________

            1.  The   District   Attorney   has  also   made   reference,
            secondarily,  to  a  privilege  embracing  "prosecutorial  or
            deliberative processes or work product."  

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are  generally  not appealable  under the  "collateral order"

            exception  to the final judgment  rule set forth  in Cohen v.
                                                                 _____

            Beneficial Indus.  Loan Corp.,  337 U.S. 541,  545-47 (1949).
            _____________________________

            One of  the prerequisites to invoking the  Cohen exception is
                                                       _____

            that the order be "effectively  unreviewable on appeal from a

            final judgment."  Doughty v. Underwriters at Lloyd's, London,
                              _______    _______________________________

            6 F.3d 856, 862 (1st  Cir. 1993).  Such is not the case here;

            the  District Attorney "can gain the right of appeal from the

            discovery order  by defying it,  being held in  contempt, and

            then  appealing  from the  contempt order,  which would  be a

            final  judgment as  to  [him]."   Garcia,  876 F.2d  at  257;
                                              ______

            accord, e.g.,  Firestone Tire  & Rubber  Co. v.  Risjord, 449
            ______  ____   _____________________________     _______

            U.S.  368, 377 (1981); MDK, Inc. v. Mike's Train House, Inc.,
                                   _________    ________________________

            27 F.3d 116, 120-22 (4th Cir.),  cert. denied, 115 S. Ct. 510
                                             ____________

            (1994); see  generally In re  Recticel Foam  Corp., 859  F.2d
                    ______________ ___________________________

            1000, 1004 (1st Cir.  1988) ("discovery orders rarely satisfy

            all four of [the Cohen] criteria").
                             _____

                 While acknowledging  that incurring a  contempt citation

            is the ordinary  route to appellate  review in this  context,

            the  District Attorney argues  that his status  as an elected

            government official  and the  county's chief  law enforcement

            officer calls for a  different procedure.  He relies  in this

            regard  on United States v. Nixon, 418 U.S. 683 (1974), where
                       _____________    _____

            the Court allowed President Nixon to appeal from  a discovery

            order without first being cited for contempt.  It explained: 

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To  require a  President  of the  United States  to
                 place himself in the posture of disobeying an order
                 of  a  court  merely  to  trigger   the  procedural
                 mechanism  for  review  of   the  ruling  would  be
                 unseemly, and would present an unnecessary occasion
                 for   constitutional   confrontation  between   two
                 branches of the Government.

            Id. at 691-92.  A similar argument was advanced by the Garcia
            ___                                                    ______

            appellants (aides to the President of the Puerto  Rico Senate

            and the Puerto Rico Governor, respectively).  We deemed Nixon
                                                                    _____

            inapplicable, describing it as a  "unique case" that was  not

            "meant to  extend ... to  any government official  other than

            the  President himself."  876  F.2d at 257-58.   Other courts

            have  read Nixon in a  similarly narrow fashion.   See, e.g.,
                       _____                                   ___  ____

            Simmons v.  City of Racine,  PFC, 37 F.3d 325,  328 (7th Cir.
            _______     ____________________

            1994)  (refusing   to  extend   Nixon  exception   to  police
                                            _____

            department officers and employees);  In re United States, 985
                                                 ___________________

            F.2d  510, 511  (11th  Cir.) (per  curiam)  (same as  to  FDA

            Commissioner), cert. denied, 114 S. Ct. 545 (1993); Newton v.
                           ____________                         ______

            National Broadcasting Co., 726 F.2d 591, 593  (9th Cir. 1984)
            _________________________

            (per curiam)  (same as to state gaming control board); United
                                                                   ______

            States v. Winner, 641 F.2d 825, 830 (10th Cir. 1981) (same as
            ______    ______

            to Deputy Attorney General  and Assistant Attorney General of

            United States); In re Attorney  General of the United States,
                            ____________________________________________

            596  F.2d 58,  62 (2d  Cir.) (same  as to  Attorney General),

            cert. denied, 444 U.S. 903 (1979).2
            ____________

                                
            ____________________

            2.  Contrary to the District Attorney's suggestion, Socialist
                                                                _________
            Workers Party v. Grubisic, 604 F.2d 1005 (7th Cir. 1979) (per
            _____________    ________
            curiam), on which  he heavily relies,  did not conclude  that

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In several of these cases, it is true, the courts relied

            on the principles underlying  the Nixon exception to conclude
                                              _____

            that  the  circumstances  were  sufficiently  exceptional  to

            warrant mandamus relief.   See In re United States,  985 F.2d
                                       ___ ___________________

            at 511-12; Winner, 641 F.2d at 830-31; In re Attorney General
                       ______                      ______________________

            of  the United  States,  596 F.2d  at  62-64.   The  District
            ______________________

            Attorney requests, in  the alternative, that  we do the  same

            here.    Assuming, without  deciding, that  the extraordinary

            remedy of mandamus might  on occasion be appropriate in  this

            context, we readily conclude--just  as we did in  Garcia, 876
                                                              ______

            F.2d at 261--that such relief is unwarranted here.  

                 Several factors  underlie this  conclusion.  First,  the

            District Attorney  has satisfied  neither of  the traditional

            prerequisites  to  mandamus relief:  (1)  a  showing of  some

            special risk of irreparable harm, and (2) a  demonstration of

            clear  entitlement to  the relief  requested, i.e.,  that the

            district  court's order  is palpably  erroneous.   See, e.g.,
                                                               ___  ____

            Doughty, 6 F.3d at 865; In re Pearson, 990 F.2d 653, 656 (1st
            _______                 _____________

            Cir.  1993).  Second, the  discovery ruling at  issue here is

____________________

            the  appellant   State's  Attorney  fell  within   the  Nixon
                                                                    _____
            exception; the  court there ended up  invoking the collateral
            order exception.  The same court, more  recently, has applied
            Nixon narrowly  and confined  Grubisic to the  "narrow facts"
            _____                         ________
            presented.  See  Simmons, 37  F.3d at 328-29.   We also  note
                        ___  _______
            that the principal case on  which the Grubisic court relied--
                                                  ________
            Covey  Oil Co.  v. Continental  Oil Co.,  340 F.2d  993 (10th
            ______________     ____________________
            Cir.),  cert. denied,  380  U.S. 964  (1965)--has since  been
                    ____________
            discredited.   See, e.g., MDK, Inc., 27 F.3d at 120; Boughton
                           ___  ____  _________                  ________
            v. Cotter Corp., 10 F.3d 746, 749 (10th Cir. 1993).
               ____________

                                         -6-



one largely entrusted to the district court's discretion, and

            "mandamus, as  a  general rule,  will  not issue  to  control

            exercises of judicial discretion."  In re Insurers Syndicate,
                                                ________________________

            864  F.2d 208,  211  (1st Cir.  1988);  accord, e.g.,  In  re
                                                    ______  ____   ______

            Recticel  Foam  Corp.,   859  F.2d  at  1006.     Third,  the
            _____________________

            possibility  of  a  "softened" contempt  decree  involving  a

            citation  without further  sanction, see,  e.g., Garcia,  876
                                                 ___   ____  ______

            F.2d at 259 (quoting  National Super Spuds, Inc. v.  New York
                                  __________________________     ________

            Mercantile Exchange, 591 F.2d 174, 180 (2d Cir. 1979)), might
            ___________________

            go far  to mitigate  any "unseemliness" that  might otherwise

            arise   from  holding  the  District  Attorney  in  contempt.

            Finally, the recent decision in Globe Newspaper Co. v. Police
                                            ___________________    ______

            Comm'r  of Boston, 419 Mass. 852 (1995), in which the Supreme
            _________________

            Judicial Court  ordered public  dissemination of many  of the

            same materials at issue here, further undercuts the propriety

            of ordering such extraordinary relief. 

                 The appeal is dismissed for  lack of jurisdiction.   The
                 ________________________________________________________

            temporary stay  issued on March 22, 1995 is hereby dissolved.
            _____________________________________________________________

            Appellant's motion to stay the appeal is denied as moot. 
            ________________________________________________________

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