United States v. Tucker, 745 F.3d 1054 (10th Cir., March 11, 2014)
The Tenth Circuit dismissed the defendants’ interlocutory appeal for lack of jurisdiction. Defendants appealed the district court’s denial of their motion to dismiss the indictment and suppress grand jury testimony, which was based on the Fifth Amendment right to be indicted by a grand jury, the Fifth Amendment privilege against self-incrimination, and the Sixth Amendment right to effective assistance of counsel. The Tenth Circuit held the collateral order exception to the final judgment requirement was inapplicable to the district court’s order. Only the third Cohen factor – whether the order would be effectively unreviewable on an appeal from final judgment – was at issue. The district court’s order did not fall within the three categories of criminal cases in which the Supreme Court has applied the collateral order exception: appeals from (1) motions to reduce bail; (2) motions to dismiss based on double jeopardy grounds; and (3) motions to assert immunity under the Speech or Debate Clause of the Constitution. Nor did the order otherwise satisfy Cohen’s “effectively unreviewable” requirement. The defendants’ Fifth Amendment challenges would be reviewable on direct appeal, and their Sixth Amendment challenge could be brought in a habeas petition for post-conviction relief under 28 U.S.C. § 2255.