PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            _____________

       Nos. 13-1766, 13-1767, 13-1768
               _____________

      UNITED STATES OF AMERICA

                      v.

        CHRISTOPHER G. WRIGHT,
                 Appellant in 13-1766


      UNITED STATES OF AMERICA

                  v.
          RAVINDER S. CHAWLA,
               Appellant in 13-1767

      UNITED STATES OF AMERICA

                      v.

          ANDREW TEITELMAN,
                Appellant in 13-1768
             _____________

On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
(D.C. Criminal Nos. 2-08-cr-00450-001; 2-08-cr-00450-002;
                   2-08-cr-00450-004)

       District Judge: Honorable Eduardo C. Robreno
                      ______________

                 Argued October 1, 2014
                    ______________

 Before: AMBRO, CHAGARES, and VANASKIE, Circuit
                    Judges

             (Opinion Filed: January 8, 2015)

Jennifer A. Williams, Esq. [ARGUED]
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
       Counsel for Appellee

Lisa A. Mathewson, Esq. [ARGUED]
Suite 810
123 South Broad Street
Philadelphia, PA 19109
       Counsel for Appellant Christopher G. Wright

Ellen C. Brotman, Esq.
Montgomery, McCracken, Walker & Rhoads
123 South Broad Street
28th Floor
Philadelphia, PA 19109
       Counsel for Appellant Andrew Teitelman




                            2
Peter Goldberger, Esq.
50 Rittenhouse Place
Ardmore, PA 19003

Megan S. Scheib, Esq.
William J. Winning, Esq.
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
      Counsel for Appellant Ravinder S. Chawla




                            3
                        ___________

                 OPINION OF THE COURT
                      ___________

VANASKIE, Circuit Judge.

       Appellants Christopher G. Wright, Ravinder S.
Chawla, and Andrew Teitelman filed this interlocutory appeal
from the District Court’s denial of their pretrial joint motion
to preclude the Government from relitigating certain issues
under the Double Jeopardy Clause and from constructively
amending the indictment. Because the District Court’s ruling
is not a “collateral” order subject to immediate review under
Cohen v. Beneficial Industrial Loan Corp., 

(1949), and was not otherwise a “final decision[]” under 28
U.S.C. § 1291, we lack jurisdiction to consider their appeal.
Accordingly, we will dismiss this appeal and remand for
further proceedings.

                              I.

       We have already had occasion to describe the facts
underlying this case in United States v. Wright, 

(3d Cir. 2012), and that description of the facts is important
for understanding the matter before us now:

              From 2005 through 2007, Wright
              was Chief of Staff to Philadelphia
              City Councilman John “Jack”
              Kelly. Wright was also a realtor.
              Chawla owned the real estate firm
              World    Acquisition      Partners
              (“World    Acquisition”),      and




                              4
Teitelman, an attorney, did most
of the firm’s legal work.
Teitelman was not a World
Acquisition employee, but his
offices were in its office suite, and
most of his work came from
World Acquisition. Chawla and
Teitelman befriended Wright
when Wright had an office in the
same building.

This case concerns a series of
gifts that Chawla, Teitelman, or
both gave Wright and a
simultaneous series of official acts
that Wright took on behalf of
World Acquisition.          Wright
received a free stint in an
apartment, free legal services, and
was promised commissions on
World Acquisition deals. At the
same time, Wright shepherded a
bill that Chawla favored through
Kelly’s office, arranged meetings
about a World Acquisition
development, and communicated
with City of Philadelphia offices
for World Acquisition.

More        specifically,     Wright
received three main benefits.
First, he lived at least part-time in
an apartment (with a free parking
space) for 14 months without




                 5
paying rent. World Acquisition
had contracted to buy a building
at 2000 Delancey Street in
Philadelphia, then sold its right to
buy the building to another
purchaser. Meanwhile, Wright
was in divorce proceedings and
struggled with alcohol abuse.
Teitelman, concerned for Wright,
helped him move into one of the
building's vacant units.        The
parties contest the extent to which
Chawla      knew      about     this
arrangement.           The     new
purchaser’s agent soon discovered
Wright, who left the apartment
months later after the new
purchaser sought to evict him.

Second, Wright received free
legal help from Teitelman and his
associate. When the Delancey
Street building’s new owner
attempted to evict Wright,
Teitelman       defended      him.
Teitelman     also    took    over
negotiations with the lawyer for
Wright’s wife when Wright could
no longer afford his previous
divorce     lawyer.        Finally,
Teitelman defended Wright in a
bank foreclosure against Wright’s
marital home. For all that work,




                 6
Teitelman billed Wright but $350,
and did so only after Teitelman
learned that the FBI was
investigating their relationship.
As with the apartment, the parties
contest Chawla’s involvement.

Third, Wright was promised
commissions in his capacity as a
realtor. He occasionally “brought
deals” to World Acquisition in the
same manner that any realtor
could, but none of those deals
succeeded, so Wright never
earned anything.        On one
occasion, World Acquisition
granted Wright and his partner the
exclusive right to approach a
buyer for a $100 million property.
Had Wright succeeded in making
the sale, he would have earned a
commission of $6 million, but that
deal also fell through. Chawla
offered Wright “liaison work” as
well, but Wright declined that
offer.

While he was receiving those
benefits, Wright took three sets of
actions as Councilman Kelly’s
Chief of Staff that tended to
benefit World Acquisition. First,
Wright helped Kelly propose and
pass a “mechanical parking”




                7
ordinance.      Philadelphia law
required developers planning to
install mechanical parking to get a
zoning     variance,     a    time-
consuming      process.          At
Teitelman’s behest, Wright set up
a meeting at which Chawla and
his partner suggested that Kelly
change that law. Kelly, who
usually took a pro-development
stance, agreed.       Chawla and
Teitelman prodded Wright to
make the bill a priority, and Kelly
soon after introduced the bill.
The City Council passed it by a
vote of 15–0.

Second, Wright helped Chawla
oppose an ordinance that would
cripple    a   planned     World
Acquisition project.      Chawla
envisioned a large development
called “River City” south and
west of Philadelphia’s Logan
Square, where low-rise residences
predominate.        When      the
neighborhood          association
protested, Wright arranged a
meeting between Chawla and
association leaders. Afterward,
Wright wrote Chawla and
Teitelman advising that his “role
as Jack’s Chief of Staff” should




                8
be to focus City staff on River
City’s benefits. Nonetheless, in
the face of continued opposition,
the City Council passed a
building-height restriction that
thwarted the River City plans.
Kelly joined the 15–0 vote.

Third, Wright worked with other
City     offices      on     World
Acquisition’s behalf. When the
Parking Authority was selling a
certain      property,      Wright
forwarded public information
about its “request for proposal”
process to Chawla and Teitelman.
Wright      also     arranged      a
walkthrough of the property. He
obtained public information for
World        Acquisition       from
Philadelphia Gas Works through a
high-level official rather than
through the main call center.
Finally, Wright worked with the
City's Department of Licenses and
Inspections on a certification that
the River City property was not
encumbered        with       zoning
violations.    City Council staff
often did so for their constituents,
though this certification was
unusually complicated.




                 9
In 2008, a federal grand jury
returned       a      fourteen-count
indictment       against    Chawla,
Teitelman, Wright, and Chawla’s
brother Hardeep. The indictment
charged honest services fraud,
traditional fraud, conspiracy to
commit both kinds of fraud, and
bribery in connection with a
federally funded program. After a
four-week jury trial, including
five days of deliberations, the jury
convicted Chawla, Teitelman, and
Wright on three counts: (1)
conspiracy to commit honest
services and traditional fraud
(Count One); (2) honest services
fraud     for      the     apartment
arrangement (Count Ten); and (3)
traditional fraud for the apartment
arrangement (Count Twelve).
The jury further convicted Chawla
alone on one honest services
count for offering Wright liaison
work (Count Three). It acquitted
on the other ten counts and
acquitted Hardeep Chawla of all
counts.

The District Court sentenced
Wright    to   48    months’
imprisonment, Chawla to 30
months, and Teitelman to 24




                10
              months, followed in each case by
              two years of supervised release.
              It also imposed fines and special
              assessments on each person.

       Wright, Teitelman, and Chawla appealed their
convictions. See generally 

argument on
appeal was that the intervening decision in Skilling v. United
States, 

(2010)—establishing that the federal
honest-services fraud statute, 18 U.S.C. § 1346, criminalized
only fraudulent schemes based on bribery or kickbacks—
undermined the validity of their convictions. We agreed
that Appellants’ convictions for honest-sevices fraud on
Counts One, Three, and Ten may have been predicated on a
now-impermissible theory of liability, and thus vacated those
convictions and remanded for a new trial.             Because
prejudicial spillover may have tainted the traditional fraud
convictions on Count Twelve, those convictions too were
vacated.

       On remand, Appellants filed a joint motion under the
Double Jeopardy Clause to limit the scope of the new trial,
“to prevent relitigation of issues that were necessarily decided
in their favor when the jury acquitted them on several
counts.” Appellants’ Br. at 4. Appellants also sought to bar
certain arguments from the Government that they believed
would constructively amend the indictment. In an order filed
on February 4, 2013, followed by an accompanying
memorandum on April 5, 2013, the District Court denied the
motion except as to evidence of a $1000 check paid to Wright
by Hardeep Chawla (the only defendant acquitted of all




                              11
charges). United States v. Wright, 

(E.D.
Pa. 2013).1 Appellants timely appealed.

                              II.

        Although our jurisdiction over substantial aspects of
this appeal is not contested, we have an independent duty to
ascertain whether we do indeed have jurisdiction. See Metro
Transp. Co. v. N. Star Reinsurance Co., 

, 676
(3d Cir. 1990) (“Where counsel has not satisfied us that
jurisdiction is present, we are obliged to raise that issue on
our own initiative.”). Our review of this threshold question
is, of course, plenary. In re Blatstein, 

, 94 (3d
Cir. 1999).




      1
          Also on remand, the Government and Appellants
attempted to enter into plea agreements under Rule
11(c)(1)(C), under which Chawla and Teitelman would plead
guilty to a misdemeanor conspiracy to defraud the
Department of Housing and Urban Development, while
Wright would plead guilty to being an accessory after the fact
to that offense, all with promised sentences of time served. In
March 2013, the District Court rejected the pleas as “too
lenient in light of the seriousness of the charged crimes” and
“contrary to the public interest.” United States v. Wright, 

, 90 (E.D. Pa. 2013). The parties do not appeal that
order.




                              12
                             III.

                              A.

        The principal statutory basis for our jurisdiction over
appeals taken by criminal defendants is 28 U.S.C. § 1291,
which permits us to review almost all “final decisions” of the
federal district courts. This “final judgment” rule ordinarily
“prohibits appellate review until conviction and imposition of
sentence” in a criminal case. Flanagan v. United States, 

, 263 (1984) (citations omitted). At issue here is the
collateral-order exception announced in Cohen v. Beneficial
Industrial Loan Corp., 

(1949), which gives us
latitude to exercise immediate review over orders that,
although not “final” in the traditional sense, “conclusively
determine the disputed question, resolve an important issue
completely separate from the merits of the action, and [are]
effectively unreviewable on appeal from a final judgment.”
 Coopers & Lybrand v. Livesay, 

, 468 (1978)
(citations omitted).

       Time and again, the Supreme Court has reiterated the
limited nature of this doctrine:

              [W]e have not mentioned
              applying the collateral order
              doctrine      recently     without
              emphasizing its modest scope.
              See, e.g., Digital Equip. Corp. v.
              Desktop Direct, Inc., 

, 868 (1994) (“[T]he ‘narrow’
              exception should stay that way
              and never be allowed to swallow
              the general rule that a party is




                              13
              entitled to a single appeal, to be
              deferred until final judgment has
              been entered . . . .” (citation
              omitted)). And we have meant
              what we have said; although the
              Court has been asked many times
              to expand the “small class” of
              collaterally appealable orders, we
              have instead kept it narrow and
              selective in its membership.

Will v. Hallock, 

, 350 (2006). This admonition
holds special significance in criminal cases, where we must
apply the collateral-order exception “with the utmost
strictness,” 

, primarily “to avoid
delays due to piecemeal appellate litigation, as these delays
may work to the detriment of the rights of the defendant or
prejudice the prosecution’s ability to prove its case.” United
States v. Wecht, 

, 244–45 (3d Cir. 2008)
(citations omitted). Such appeals are thus permitted “only in
the most rare and exceptional circumstances.” 

(citing 

).

       One such exceptional circumstance is sometimes
presented by a district court’s denial of a colorable claim
under the Double Jeopardy Clause. See Abney v. United
States, 

, 662 (1977). The rationale is that the
Clause, which states that no person shall “be subject for the
same offence to be twice put in jeopardy of life or limb,” U.S.
Const. amend. V, protects a defendant not only from being
convicted after a second trial on the same offense, but also
from suffering the burden of a second trial itself. See 

–62. Once that second trial has occurred,
whether the defendant has been convicted or acquitted, full




                              14
post-trial relief is impossible. Thus, where a double-jeopardy
claim is “effectively unreviewable” after trial under Cohen,
the collateral-order doctrine permits interlocutory review.

        Appellants’ argument rests upon the Double Jeopardy
Clause’s incorporation of the doctrine of collateral estoppel,
also known as issue preclusion, which “can bar the
relitigation of an issue actually decided in a defendant’s favor
by a valid and final judgment.” United States v. Merlino, 

, 141 (3d Cir. 2002) (citing Ashe v. Swenson, 

, 443 (1970)). In a recent en banc opinion, we
explained that a defendant who seeks to avail himself of
collateral estoppel bears the “heavy burden” of
“demonstrating that the issue he seeks to foreclose was
actually decided in the first proceeding.” United States v.
Rigas, 

, 217 (3d Cir. 2010) (en banc) (citations
omitted).

                              B.

        The first substantial question presented by this appeal
is whether the District Court’s denial of Appellants’ motion to
preclude based on collateral estoppel justifies interlocutory
appeal under Cohen and Abney. It is undisputed that where
collateral estoppel bars “retrial of a charge,” a defendant may
seek immediate review. United States v. Levine, 

, 125 (3d Cir. 1981) (citing United States v. Venable, 

, 75 (3d Cir. 1978)). But we have expressed doubt
that such jurisdiction exists “when the collateral estoppel
claim would at most suppress some evidence but not preclude
trial on the charge.” 

n.22 (citing United States v.
Mock, 

, 337–41 (5th Cir. 1979)). The root of
that concern stems from Abney itself, in which the Supreme




                              15
Court announced a critical distinction between allegations of
constitutional injury and mere evidentiary error:

              [T]he very nature of a double
              jeopardy claim is such that it is
              collateral to, and separable from
              the principal issue at the
              accused’s impending criminal
              trial, i.e., whether or not the
              accused is guilty of the offense
              charged.     In arguing that the
              Double Jeopardy Clause of the
              Fifth Amendment bars his
              prosecution, the defendant makes
              no challenge whatsoever to the
              merits of the charge against him.
              Nor does he seek suppression of
              evidence which the Government
              plans to use in obtaining a
              conviction.       Rather, he is
              contesting the very authority of
              the Government to hale him into
              court to face trial on the charge
              against 

(citations omitted).

       Based on that reasoning, seven of our sister courts of
appeals have found that the touchstone for interlocutory
jurisdiction is a collateral-estoppel claim that, if successful,
would require dismissal of, at a minimum, an entire count.
See United States v. Wittig, 

, 1096 (10th Cir.
2009); United States v. Ginyard, 

, 211–12 (D.C.
Cir. 2008); United States v. Tom, 

, 68 (2d Cir.




                              16
1986); United States v. Gulledge, 

, 586–87 (11th
Cir. 1984); United States v. Head, 

, 1205 (4th
Cir. 1982); United States v. Powell, 

, 758 (9th
Cir. 1980); 

–40. None of our sister
circuits or the federal district courts appear to have taken a
contrary view.

        Here, Appellants were convicted at trial, by a general
verdict, of conspiracy to commit honest-services fraud under
Count One. They were acquitted, with the exception of
Chawla on Count Three, on several substantive counts of mail
and wire fraud, each predicated on a mailing or email relating
to a particular transaction. These include Count Two (the
mechanical-parking ordinance); Counts Three through Five
(the River City development project); Counts Six and Seven
(the Parking Authority property); Counts Eight and Eleven
(the free legal services regarding Wright’s divorce
proceedings and a home foreclosure action); and Count Nine
(the corporate tax bill). Appellants now argue that the jury
necessarily decided that Appellants lacked criminal intent as
to the entirety of their conduct with respect to those
transactions. Thus, as a matter of collateral estoppel, they
contend that the Government must be precluded from
introducing any evidence of those transactions, whether to
prove criminal intent as to Count One or to prove an overt act
in furtherance of the conspiracy charged in that count.

       According to the consensus view outlined above, the
foremost question is whether this claim, if successful, would
require dismissal of the indictment as a whole, or, at a
minimum, dismissal of any single count. In its briefing, the
Government notes that criminal intent is an essential element
of each of the remaining counts, and that trial “could not
proceed if the Government were barred by collateral estoppel




                             17
from presenting evidence of criminal intent.” Appellee’s Br.
at 35–36. By that reasoning, the Government believes that
we have jurisdiction to review at least this facet of the District
Court’s order now rather than after trial.

       The Government’s theory of jurisdiction is incorrect:
Appellants did not seek to preclude the Government from
introducing any and all evidence pertaining to criminal
intent—nor could they have, given that the jury necessarily
found that such intent existed with respect to the counts of
conviction.    Instead, Appellants seek to preclude the
Government from using only the transactions underlying the
acquitted counts as evidence of intent.

        Appellants themselves concede that their motion, if
granted, would not require dismissal of Count One, or of any
other particular count in its entirety. See Appellants’ Br. at 16
(“Thus, even if the [motion to preclude] had been fully
granted, at least one count would have been left untouched
(that is, Count 12, as to all defendants; and Count 3, as to
Chawla alone), and Count One, the multi-faceted conspiracy
count, would only be narrowed.”). And during oral argument
before the District Court, counsel for Appellant Wright,
arguing on behalf of all Appellants for purposes of their joint
motion to preclude, noted that even if Appellants prevail on
their double-jeopardy claim, they would still face trial on
Count One, because the Government could still introduce
other evidence of criminal intent, such as Wright’s use of the
Delancey Street Apartment:

              MS. MATHEWSON: . . .
              Speaking only to honest services,
              Your Honor, [the Government is]
              perfectly welcome to retry a




                               18
               bribery case that says . . . we
               exchanged L&I certs, PGW,
               whatever official action we
               haven’t already been acquitted on
               for the things of value we haven’t
               been acquitted on, the free
               apartment and parking space and
               the legal services on the eviction.
               That’s their case, Your Honor.

               We’re not saying throw them out
               of court as a result of double
               jeopardy. . . . But, Your Honor,
               we have to go back to the heart of
               the double jeopardy clause, which
               is, let’s not have a deja vu trial.
               Let’s not have another case where
               we’re fighting the exact same
               issues that a jury has already
               acquitted us on.

(App. 240.)

       Under the rule adopted by our sister circuits, then, we
are foreclosed from considering the merits of this appeal.
Appellants claim, however, that United States v. Serafini, 

(3d Cir. 1999), commands a different result. In
Serafini, we addressed the scope of the then-current version
of 18 U.S.C. § 3731,2 which permits the Government to seek


      2
          At the time, the statute stated, in pertinent part:




                                 19
interlocutory appeal from certain pre-trial orders of dismissal.
We concluded that along with permitting an appeal from the
dismissal of an entire count, the statute also authorized the
Government’s appeal from an order “excising a portion of a
count which, if not excised, would offer legal grounding for
criminal culpability separate from whatever culpability might
accrue from any portion or portions of the count that the trial
court does not determine to be deficient as a matter of law.”

(emphasis added). We based this holding on
guidance from the Supreme Court in Sanabria v. United
States, 

(1978), where the Court noted that § 3731

              In a criminal case an appeal by
              the United States shall lie to a
              court of appeals from a decision,
              judgment, or order of a district
              court dismissing an indictment or
              information or granting a new
              trial after verdict or judgment, as
              to any one or more counts, except
              that no appeal shall lie where the
              double jeopardy clause of the
              United       States     Constitution
              prohibits further prosecution.

              ...

              The provisions of this section
              shall be liberally construed to
              effectuate its purposes.

18 U.S.C. § 3731 (1994).




                              20
was “expressly designed to eliminate ‘[t]echnical distinctions
in pleadings as limitations on appeals by the United States.’”

n.23 (quoting H.R. Conf. Rep. No. 91–1768, p. 21
(1970)).3

        Appellants argue that the definition of a “count” we
adopted in Serafini with respect to that term’s use in § 3731 is
also binding here. In other words, they believe that, for
double-jeopardy purposes too, we should define a “count” not
based on the Government’s strategic choices at the pleadings
stage but rather in functional terms as any separate “legal
grounding for criminal culpability.” By that view, our sister
circuits have all adopted an unduly narrow interpretation of
Abney, and the correct reading would permit interlocutory
review where the defendant’s motion raises a colorable claim
that any particular legal grounding for culpability is barred by
collateral estoppel.

       Applying that theory to these facts, Appellants argue
that the transactions they seek to preclude—the River City
deal, the mechanical parking ordinance, and so on—each
provide a separate “legal grounding for criminal culpability”
on the conspiracy charge in two respects. First, the conduct
underlying any one of these transactions would arguably be
sufficient to establish the element of criminal intent. Second,
each transaction arguably provides a separate and adequate
basis for the overt-act element. See United States v. Rankin,

       3
        Congress later amended § 3731, essentially codifying
Sanabria and Serafini by providing that that the Government
may appeal from the dismissal of “any one or more counts, or
any part thereof.” 18 U.S.C. § 3731 (emphasis added).




                              21


, 113 (3d Cir. 1989) (noting the overt-act
element of conspiracy under 18 U.S.C. § 371). Thus, if
Appellants’ motion is meritorious, several of the
Government’s potential theories of liability under Count One
would be “knocked out” at trial as a matter of double
jeopardy.

        We find this argument unpersuasive. Appellants offer
no case law so much as suggesting that Sanabria or Serafini
bear on the scope of the collateral-order doctrine as it pertains
to appeals taken by defendants. And this is for good reason:
Section 3731 deals exclusively with appellate jurisdiction
over “an appeal by the United States.” The Supreme Court’s
interpretation of § 3731, and ours, has always been based in
large part on the statute’s purpose, which is “‘to remove all
statutory barriers to Government appeals and to allow appeals
whenever the Constitution would permit.’” United States v.
Farnsworth, 

, 399 (3d Cir. 2006) (quoting
United States v. Wilson, 

, 337 (1975)). A
defendant’s right to interlocutory appeal, by contrast, remains
subject to the constraints of 28 U.S.C. § 1291, and by
extension, the three-pronged Cohen test, which requires that
the district court’s alleged error be “completely separate from
the merits of the action” and “effectively unreviewable on
appeal from a final judgment.” 

.
Here, although the collateral-estoppel rights at issue are
founded in the Double Jeopardy Clause, Appellants do not
“contest[] the very authority of the Government to hale
[them] into court to face trial on the charge[s] against
[them].” 

. Instead, they concede that
they face retrial on all counts of conviction regardless of our
ruling on the correctness of the District Court’s opinion. As a
result, any errors in the District Court’s application of the




                               22
collateral-estoppel doctrine will merely affect the course of
the trial, and therefore remain subject to review and redress
through the traditional appellate process.

       Accordingly, we will dismiss the portion of this appeal
pertaining to the District Court’s application of the collateral-
estoppel doctrine in its order of February 4, 2013 and
memorandum of April 5, 2013.

                               C.

        The second question presented is whether we have
jurisdiction over the denial of Appellants’ motion to preclude
the Government from constructively amending the
indictment. On this point, too, Appellants argue that the
District Court’s denial of their motion violates their
constitutional right not to be tried, thereby triggering a right
to interlocutory appeal under the collateral-order doctrine.

       The constitutional provision at issue is the Grand Jury
Clause of the Fifth Amendment, which states that “[n]o
person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury . . . .” U.S. Const. amend. V. From that
guarantee emerges the well-recognized prohibition on
constructive amendment of the indictment at trial, which
occurs “when evidence, arguments, or the district court’s jury
instructions effectively ‘amend[s] the indictment by
broadening the possible bases for conviction from that which
appeared in the indictment.’” United States v. McKee, 

, 229 (3d Cir. 2007) (quoting United States v.
Lee, 

, 208 (3d Cir. 2004)). We have
characterized constructive amendment as an “exceptional
category of error” that “deprives the defendant of his/her




                               23
‘substantial right to be tried only on charges presented in an
indictment returned by a grand jury.’” 

(quoting
United States v. Syme, 

, 149 (3d Cir. 2002)); see
also United States v. Vosburgh, 

, 531 (3d Cir.
2010) (“‘[A] court cannot permit a defendant to be tried on
charges that are not made in the indictment against him.’”)
(quoting Stirone v. United States, 

, 217 (1960)).
Accordingly, once a defendant on direct appeal establishes
that a conviction was tainted by constructive amendment, we
may redress that injury by vacating the conviction. See, e.g.,

.

        The jurisdictional question presented, however, is not
resolved simply because Appellants seek to vindicate a right
originating from the Grand Jury Clause. In Midland Asphalt
Co. v. United States, 

(1989), Justice Scalia,
writing for a unanimous court, clarified that the Clause only
“confer[s] a right not to be tried . . . when there is no grand
jury indictment.” 

(emphasis added). In other
words, the defect at issue must be “so fundamental that it
causes the grand jury no longer to be a grand jury, or the
indictment no longer to be an indictment . . . .” 

of example, allegations of an “isolated breach of the
traditional secrecy requirements,” or the grand jury’s
violation of the defendant’s right against self-incrimination,
are not so fundamental as to implicate a defendant’s right not
to be tried. 

Asphalt was decided, very few federal
appellate courts have identified allegations of grand-jury error
giving rise to interlocutory jurisdiction. The Tenth Circuit, in
a thorough treatment of the subject, limits jurisdiction under
Midland Asphalt to review of “technical challenge[s] to the
existence of an indictment,” such as where the defendant may




                              24
have been indicted by an insufficient number of grand jurors.
United States v. Tucker, 

, 1069 (10th Cir.
2014). This accords with our own decisions holding that
even allegations of failure to present exculpatory evidence,
see United States v. Johns, 

, 156–60 (3d Cir.
1988), and prosecutorial misconduct, see United States v.
Fisher, 

, 448–49 (3d Cir. 1989), are insufficient
to support interlocutory jurisdiction.

       We are aware of only a single decision addressing
whether the denial of a pre-trial motion to preclude
constructive amendment satisfies the Midland Asphalt
standard. In United States v. Asher, 

(7th Cir.
1996), the defendant, who had been previously convicted of
charges stemming from participation in a stolen vehicle ring,
was again indicted for conspiracy to commit vehicle theft and
other offenses based on his allegedly continuing involvement
with the same criminal enterprise. After the district court
denied the defendant’s motion to dismiss under the Double
Jeopardy Clause, the defendant challenged that ruling on
interlocutory appeal and also alleged that the District Court’s
interpretation of the indictment constituted a constructive
amendment.      The Seventh Circuit, without significant
analysis, concluded that “[t]he district court’s alleged
constructive amendment of the indictment is clearly not such
a ‘fundamental’ defect in the grand jury process as to permit
immediate appellate review under Midland Asphalt.” 

       Here, Appellants do not dispute that a properly seated
grand jury considered the Government’s evidence and
returned an indictment in a manner compliant with traditional
grand jury protocols. They allege no technical or procedural
violation that would cause “the indictment no longer to be an




                              25
indictment.” Midland 

. As a result,
Appellants will face retrial on certain counts of that
indictment regardless of the Government’s expected proof
and legal theory. If Appellants’ contentions regarding
constructive amendment prove correct, they may seek relief
on direct post-conviction appeal—which has long been the
stage at which allegations of constructive amendment are
addressed. Accordingly, Appellants have not raised a claim
implicating the right not to be tried under the Grand Jury
Clause.

       For these reasons, we will dismiss the portion of this
appeal pertaining to the District Court’s denial of Appellants’
constructive-amendment claims in its order of February 4,
2013 and memorandum of April 5, 2013.

                              IV.

        In addition to asserting that we have jurisdiction under
the collateral-order doctrine, Appellants request that we treat
their appeal as a petition for a writ of mandamus, over which
we do indeed have jurisdiction. See 28 U.S.C. § 1651(a);
United States v. Christian, 

, 894 (3d Cir. 1981).
Such relief, however, is extraordinary, and is appropriate only
upon a showing of (1) a clear abuse of discretion or clear
error of law; (2) a lack of an alternate avenue for adequate
relief; and (3) a likelihood of irreparable injury. See United
States v. Wexler, 

, 128 (3d Cir. 1994) (citations
omitted). We have already concluded that Appellants have
not raised a claim that would result in irreparable injury if
they are forced to pursue relief (in the event of a conviction)
via a traditional post-trial appeal. Mandamus relief is
therefore unwarranted.




                              26
                              V.

       For the aforementioned reasons, we will dismiss the
foregoing appeal for lack of jurisdiction and remand for
further proceedings consistent with this Opinion.4




       4
        In light of our conclusion that we lack jurisdiction to
consider this appeal, we express no view on the merits of the
double-jeopardy and constructive-amendment claims
presented.




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