Attempted Interlocutory Appeal of Denial of Motion to Dismiss Indictment Refused

Calhoun v. Tucker, 2014 WL 930868 (3/11/14) (Okl.) (Published) - The 10th refuses to accept an interlocutory appeal of the denial of a motion to dismiss the indictment. The motion contended the indictment was obtained through the testimony of Mr. Calhoun who was testifying in reliance on the advice of an attorney who was paid by the victim of the fraud, a bank that would benefit from Mr. Calhoun's testimony. His self-incriminating testimony could get the bank off the hook for a civil judgment based on the fraud the bank participated in. The 10th finds that the appeal did not meet the requirement that the issue would be effectively unreviewable on appeal after judgment. The issue did not implicate the right to bail or the right not to be tried, such as a double-jeopardy right not to be tried twice, even though Mr. Calhoun's issue involved a remedy of dismissing the charges. It didn't matter that the rights involved were important or that success on appeal after judgment would be an imperfect remedy. A defect in the grand jury process is immediately appealable only if the grand jury ceased to be a grand jury, e.g. where there weren't enough votes for the indictment. If the 10th allowed this appeal the policy against piecemeal appeals would be riddled with exceptions. The 10th discusses a number of instances where it has allowed an interlocutory appeal. So the opinion provides a nice compendium of all the case law on the matter.