829 F.2d 1126
UNITED STATES of America, Plaintiff-Appellee,
v.
Ethan CANTOR, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Dennis BUCKLES, Defendant-Appellant.
Nos. 87-3740, 87-3741
United States Court of Appeals, Sixth Circuit.
September 23, 1987.
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
ORDER
Before ENGEL and RYAN, Circuit Judges, and PECK, Senior Circuit Judge.
Defendants Cantor and Buckles appealed from the district court's order of July 23, 1987 which, inter alia, denied their motions to dismiss an indictment because of alleged abuse of the grand jury process. During the grand jury proceedings, the government instructed witnesses that: 'Your testimony before the Grand Jury is a secret and may not be disclosed by the Government or the Grand Jury to other persons except in accordance with law or pursuant to a court order. The Grand Jury requests that you not discuss your testimony with others, except with your attorney, if you wish.' (emphasis added). Defendants contended that these instructions and the use of prior grand jury testimony violated Fed. R. Crim. P. 6(e)(2).
The question presented for review is whether the district court's order has been made appealable by the Supreme Court's decision in United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938 (1986). Therein, the court held that the petit jury's verdict rendered harmless any conceivable error in the charging decision that might have flowed from a violation of Fed. R. Crim. P. 6(d). The Ninth Circuit subsequently concluded that Mechanik deprived an appellant of effective review of a claimed violation of Rule 6(e), therefore the district court's order was appealable under 28 U.S.C. Sec. 1291 as a collateral order in United States v. Benjamin, 812 F.2d 548 (9th Cir. 1987), citing Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949).
We do not choose to hypothesize circumstances in which claimed violations of Rule 6(e) could affect a grand jury's decision whether to indict; we conclude only that those circumstances are not present in these cases. Cf. United States v. Kilpatrick, 821 F.2d 1456, 1466 (10th Cir. 1987); United States v. Taylor, 798 F.2d 1337, 1340 (10th Cir. 1986) (Mechanik would not preclude post-trial review of claims of grand jury irregularity which raise issues 'beyond the question of whether the grand jury had sufficient evidence upon which to return an indictment.').
It is, therefore, ORDERED that appeal numbers 87-3740 and 87-3741 are dismissed for lack of jurisdiction.