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Bennett v. Commonwealth of MA, 95-1281 (1995)

Court: Court of Appeals for the First Circuit Number: 95-1281 Visitors: 14
Filed: May 09, 1995
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 95-1281 VEDA BENNETT, ET AL. In re Attorney General, ______ ______________________ of the United States, 596 F.2d at 62-64. Boughton, ___ ____ _________ ________ v. Cotter Corp., 10 F.3d 746, 749 (10th Cir.
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). ____________

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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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Source:  CourtListener

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