United States Court of Appeals For the First Circuit

No. 20-1787

UNITED STATES,

Appellee,

v.

SHELLEY M. RICHMOND JOSEPH,

Defendant, Appellant.

No. 20-1794

UNITED STATES,

Appellee,

v.

WESLEY MACGREGOR,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Leo T. Sorokin, U.S. District Judge]

Before

Lynch, Thompson, and Kayatta, Circuit Judges.

Thomas M. Hoopes, with whom Douglas S. Brooks, Libby Hoopes Brooks PC, Elizabeth N. Mulvey, Crowe & Mulvey LLP, Felicia H. Ellsworth, and Wilmer Cutler Pickering Hale and Dorr LLP were on brief, for appellant Shelley M. Richmond Joseph. Rosemary C. Scapicchio for appellant Wesley MacGregor. Maura Healey, Attorney General of Massachusetts, Robert E. Toone, Anne Sterman, and Amanda Hainsworth, Assistant Attorneys General, on brief for The Commonwealth of Massachusetts, amicus curiae. Matthew R. Segal, Daniel L. McFadden, Krista Oehlke, and American Civil Liberties Union Foundation of Massachusetts, Inc. on brief for The Ad Hoc Committee for Judicial Independence, amicus curiae. Sabin Willett, Vanessa M. Brown, and Morgan, Lewis & Bockius LLP on brief for Legal Scholars, amici curiae. Howard M. Cooper, Benjamin J. Wish, Maria T. Davis, and Todd & Weld LLP on brief for The Massachusetts Association of Criminal Defense Lawyers, amicus curiae. Donald C. Lockhart, Assistant U.S. Attorney, with whom Andrew E. Lelling, U.S. Attorney, was on brief, for appellee.

February 28, 2022 KAYATTA, Circuit Judge. These appeals concern the

pending federal prosecution of Massachusetts state district court

judge Shelley Joseph and her courtroom deputy Wesley MacGregor for

actions that allegedly interfered with the enforcement of federal

immigration law. The defendants request that we step in now and

review the trial court's refusal to dismiss their indictments prior

to trial based on (1) Judge Joseph's claim of absolute judicial

immunity and (2) both defendants' contention that their

prosecution offends various provisions of the United States

Constitution.

We must reject the defendants' request for pre-trial

review of the denial of their motions to dismiss because their

appeals are premature. Our explanation follows.

I.

For the purposes of this appeal, the defendants say that

they accept as true the government's allegations as contained in

the indictment. Those allegations outline the following version

of events.

On April 2, 2018, Judge Joseph presided over the

arraignment of an undocumented immigrant referred to by the parties

as A.S.1 A.S. had been fingerprinted upon his arrest by police in

1 As used in the indictment, "A.S." evidently stands for "alien subject." Because the parties have done so, we use the moniker for the sake of convenience.

- 3 - Newton, Massachusetts. An ensuing check of a national law

enforcement database indicated that he had previously been

deported from the United States and was prohibited from reentering

the country. Federal Immigration and Customs Enforcement (ICE)

issued an immigration detainer and warrant of removal for A.S.

ICE sent these documents to the Newton Police, requesting that

state officials notify ICE before releasing A.S. and, if necessary,

detain him for up to 48 hours to allow ICE to take custody of him.

These documents were provided to the Newton District Court Clerk's

Office, probation, the assistant district attorney, and defense

counsel for A.S.

On April 2, a plainclothes ICE officer entered the

Newton District Court to take A.S. into federal custody should he

be released from state custody. The ICE officer originally sat in

Judge Joseph's courtroom, but Judge Joseph later directed the clerk

to tell the officer to leave. The government alleges that this

directive violated state policy governing the treatment of ICE

officials in Massachusetts courthouses. The clerk did as

instructed, and also told the ICE officer that if released, A.S.

would exit the courtroom into the courthouse lobby.

Ultimately, however, that is not what transpired. A.S.

was released from state custody, but he exited the courthouse

without passing through the lobby where the ICE official waited.

The government alleges that Judge Joseph purposefully helped A.S.

- 4 - evade ICE by concocting a ruse under which A.S. would go downstairs

to lockup -- ostensibly to retrieve some property and speak with

his counsel via an interpreter -- then exit the courthouse through

a rear sally-port exit. According to the government, Judge Joseph

directed the clerk to go off the record while she devised this

plan with counsel. At this point, the courtroom recorder was

turned off for nearly a minute, allegedly in violation of

Massachusetts court rules. After the recorder was turned back on

and the alleged plan was set in motion, Deputy MacGregor used his

access card to swipe A.S. out the back door of the courthouse.2

The United States Attorney for the District of

Massachusetts apparently decided that the foregoing events were

best addressed with a criminal indictment rather than a shot-over-

the-bow visit to the courthouse. The indictment charged Judge

Joseph and Deputy MacGregor with conspiring to obstruct justice in

violation of

(c)(2) and (k); obstructing justice

in violation of

and 1512(c)(2); and obstructing a

federal proceeding in violation of

and 1505.3 Both

defendants moved to dismiss these charges. Judge Joseph argued

that the doctrine of judicial immunity shields her from criminal

2 A.S. was ultimately apprehended roughly two weeks later. 3 Deputy MacGregor was also charged with perjury, but he did not move to dismiss that charge below, so it is not before us on appeal.

- 5 - prosecution for actions taken in her judicial capacity. Both Judge

Joseph and Deputy MacGregor also argued that their prosecution is

barred by principles of federalism and due process and by Tenth

Amendment precedent holding that the federal government may not

"commandeer" state officials to execute federal policies.

Finally, both defendants argued that the government had not alleged

facts sufficient to support the charges.

The district court rejected the motions to dismiss.

Judge Joseph and Deputy MacGregor timely appealed. For the

following reasons, we find that these appeals are premature, and

we have no jurisdiction to review the merits of the district

court's rulings at this stage of the proceedings.

II.

As a general rule, federal courts of appeal may exercise

appellate jurisdiction only over final decisions. See

; DiBella v. United States,

(1962) ("The

general principle of federal appellate jurisdiction . . . requires

that review of . . . proceedings await their termination by

judgment."). "Adherence to this rule of finality has been

particularly stringent in criminal prosecutions because 'the

delays and disruptions attendant upon intermediate appeal,' which

the rule is designed to avoid, 'are especially inimical to the

effective and fair administration of the criminal law.'" Abney v.

- 6 - United States,

(1977) (quoting DiBella,

).

There are, however, several exceptions to this general

rule. As relevant here, those exceptions include the so-called

collateral order doctrine. That doctrine permits an appeals court

to review orders that, without ending the litigation below,

"finally determine claims of right separate from, and collateral

to, rights asserted in the action, too important to be denied

review and too independent of the cause itself to require that

appellate jurisdiction be deferred until the whole case is

adjudicated." Midland Asphalt Corp. v. United States,

(1989) (quoting Cohen v. Beneficial Indus. Loan Corp.,

(1949)).

The collateral order doctrine is a narrow exception,

which the Supreme Court "ha[s] interpreted . . . 'with the utmost

strictness' in criminal cases."

at 799 (quoting Flanagan v.

United States,

(1984)). To qualify as a

collateral order, the order at issue "must (1) 'conclusively

determine the disputed question,' (2) 'resolve an important issue

completely separate from the merits of the action,' and (3) 'be

effectively unreviewable on appeal from a final judgment.'"

(quoting Coopers & Lybrand v. Livesay,

(1978)).

For our purposes, we need only train our attention on

the third requirement -- that the order in question cannot

- 7 - effectively be reviewed at the end of the case. The Supreme Court

has to date identified four types of orders that satisfy this

requirement and qualify as collateral orders in criminal

proceedings: orders denying motions to reduce bail, Stack v. Boyle,

, 6–7 (1951); orders denying motions to dismiss an

indictment on double jeopardy grounds, Abney, 431 U.S. at 659–62;

orders denying a motion to dismiss an indictment under the

Constitution's Speech or Debate Clause, Helstoski v. Meanor,

, 506–08 (1979); and orders allowing involuntary

medication to render a defendant competent to stand trial, Sell v.

United States,

, 175–77 (2003).

In each of these instances, Midland Asphalt's third

requirement was satisfied because the protected right (freedom

from excessive bail, a guarantee not to stand trial, and protection

against forced medication) would have been effectively lost if not

vindicated before final judgment entered. Consequently, a post-

judgment appeal would come too late.

So in this case, we ask whether either defendant asserts

a right that would effectively be lost by proceeding to trial. To

answer this question, we consider the rights that the defendants

claim are at stake.

A.

Judge Joseph's primary argument for challenging the

indictment rests on her claim that, as a state district court

- 8 - judge, she is immune from federal prosecution for the conduct

alleged in the indictment. This immunity, she argues, protects

her against not just conviction, but also against prosecution.

Thus, she reasons, she will lose an important part of that

protection if her immunity defense is not vindicated until after

trial.

The flaw in this argument is that judicial immunity --

even assuming that it applies in this criminal case -- does not

provide a right not to be tried that can serve as a basis for

interlocutory review. To explain why this is so, we begin with a

rule of construction applicable when a criminal defendant asserts

a right not to stand trial. Midland Asphalt teaches that such a

right must "rest[] upon an explicit statutory or constitutional

guarantee that trial will not occur -- as in the Double Jeopardy

Clause ('nor shall any person be subject for the same offence to

be twice put in jeopardy of life or limb'), or the Speech or Debate

Clause ('[F]or any Speech or Debate in either House, [the Senators

and Representatives] shall not be questioned in any other Place')."

(second and third alterations in original)

(internal citations omitted). In adopting this rule for

interlocutory appeals in criminal cases, the Court recognized

that, absent such a strict construction, very many legal defenses

might be said to confer a right not to be tried.

("[A]ny

legal rule can be said to give rise to a 'right not to be tried'

- 9 - if failure to observe it requires the trial court to dismiss the

indictment or terminate the trial."). So by limiting interlocutory

appeals to those "rights not to be tried" that are explicitly set

forth in a statute or the Constitution, the Court avoided

construing an exception in a manner that swallowed the rule. In

this regard, the requirement that the defense rest on an explicit

statutory or constitutional grant of immunity from trial aligns

with the Supreme Court's practice of "interpret[ing] the

collateral order exception 'with the utmost strictness' in

criminal cases."

at 799 (quoting Flanagan,

).

Judge Joseph argues that we should overlook Midland

Asphalt's pronouncement that a right not to be tried must be

explicitly rooted in a statute or the Constitution. In support of

this argument, she points to Sell,

. Sell, though,

did not suggest that Midland Asphalt was no longer good law. Sell

did not even involve a claimed right not to be tried. Rather, the

defendant in that case invoked a right not to be involuntarily

medicated.

. So the fact that the Supreme

Court did not seek to locate that particular right in an explicit

statutory or constitutional guarantee provides no basis for

concluding that Sell silently reversed Midland Asphalt's

insistence that, in a criminal case, "[a] right not to be tried"

must "rest[] upon an explicit statutory or constitutional

guarantee that trial will not occur."

(emphasis

- 10 - added); see also Shalala v. Ill. Council on Long Term Care, Inc.,

(2000) (noting that the Supreme Court "does not

normally overturn, or . . . dramatically limit, earlier authority

sub silentio").

Judge Joseph also invokes the Supreme Court's holding in

Mitchell v. Forsyth that "the denial of a substantial claim of

absolute immunity is an order appealable before final judgment."

(1985). But Mitchell was a civil case to which

the more stringent rules applicable to criminal proceedings did

not apply. Midland Asphalt, decided four years after Mitchell,

governs this criminal case. So Judge Joseph cannot obtain

interlocutory review of her judicial immunity defense unless she

can show that her claimed right not to be tried is explicitly

grounded in a statute or the Constitution. Because she concededly

can point to no such grounding, and relies instead solely on the

common law, she necessarily fails to satisfy Midland Asphalt's

strictures.

The bottom line, then, is that we have no jurisdiction

to review the district court's decision denying Judge Joseph's

motion to dismiss based on her asserted common-law defense of

judicial immunity.

- 11 - B.

The defendants' claim that the Tenth Amendment to the

United States Constitution bars their prosecution fares no better

as a support for interlocutory review.

The Tenth Amendment provides: "The powers not delegated

to the United States by the Constitution, nor prohibited by it to

the States, are reserved to the States respectively, or to the

people." U.S. Const. amend. X. In past cases, the Supreme Court

has interpreted the amendment to bar the federal government from

commandeering state executive and legislative officials to

implement federal policies. See, e.g., Printz v. United States,

(1997); New York v. United States,

(1992).

The defendants claim that their prosecution is a tool of

"impermissible commandeering -- an attempt to require state

officers to help enforce federal immigration law." As an initial

matter, this argument seems to undercut the defendants' claim that

a court can adjudicate their defenses without considering facts

contrary to those alleged in the indictment. The indictment does

not allege that Judge Joseph and Deputy MacGregor merely declined

to enforce federal immigration law. Instead, it alleges that they

affirmatively interfered with federal officials' attempts to

enforce federal law. So we are not convinced that the defendants'

Tenth Amendment theory is "completely separate from the merits" of

- 12 - the charges against them. Midland Asphalt,

(quoting Coopers & Lybrand,

).

In any event, the defendants' Tenth Amendment theory

does not satisfy Midland Asphalt's third prong. Citing an

unpublished civil decision of the Tenth Circuit, Judge Joseph and

Deputy MacGregor maintain that the Tenth Amendment should be

understood as conferring a right not to stand trial. See Robertson

v. Morgan County,

(10th Cir. 1999) (per curiam)

(unpublished table opinion). But that theory fails because we do

not glean in the Tenth Amendment's text any "guarantee that trial

will not occur." Midland Asphalt,

.4

Nor does the defendants' Tenth Amendment defense

implicate some other right that would be lost by proceeding to

trial, at least in this context. At base, the defendants argue

that they had a right to do what they did because federal

immigration officials could not have required them to help enforce

4Although not at issue in this case, the Eleventh Amendment provides a useful contrast on this point. Its text reads: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. In the civil context, the Supreme Court has found that an order denying Eleventh Amendment immunity is an appealable collateral order because "[t]he Eleventh Amendment is concerned not only with the States' ability to withstand suit, but with their privilege not to be sued" in the first instance. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

, 146 n.5 (1993).

- 13 - federal immigration law. But this defense can be asserted at

trial, with any loss reviewed on appeal from a final judgment.

True, Judge Joseph and Deputy MacGregor will confront

the costs of trial and the very significant anxiety of being

defendants in a federal prosecution. Without minimizing those

adverse consequences, we must recognize that they are visited on

all criminal defendants. So they cannot justify an interlocutory

appeal unless we are to allow such appeals of most motions to

dismiss in criminal cases.

We also acknowledge the related twist on the

commandeering argument emphasized by amici: that this prosecution

will chill other judges from refusing to assist federal officials.

But the facts alleged here -- affirmative acts of deception and

violations of several state policies -- are largely sui generis.

Moreover, every overreaching or overly broad indictment arguably

chills others who see themselves as similarly situated to the

defendants. So if that chilling were sufficient to justify

interlocutory review, very many motions to dismiss of all sorts

would be appealable. Such a result would run directly counter to

Midland Asphalt's insistence that the collateral order exception

be strictly interpreted in criminal cases.

For all of these reasons, the pretrial denial of the

defendants' motions to dismiss based on this Tenth Amendment, anti-

- 14 - commandeering defense falls short of satisfying the strict

requirements for interlocutory review in a criminal case.

C.

We turn our attention next to the defendants' claim that

the indictment contravenes principles of federalism and due

process because it "rests on unconstitutionally broad readings of

the obstruction of justice statutes." Citing no authority on this

point, the defendants contend that their prosecution implicates

"constitutional interests" that "cannot be adequately protected if

this case proceeds to trial."

We do not read this claim as asserting that principles

of federalism and/or due process confer a right not to be tried at

all. But to the extent the defendants intended to argue as much,

that argument fails for lack of "an explicit statutory or

constitutional guarantee that trial will not occur." Midland

Asphalt,

.

And with respect to the defendants' due-process claims,

we have concluded in the civil context that if a party's "due-

process rights were violated, there is no reason to assume they

cannot be fully vindicated on final appeal." United States v.

Kouri-Perez,

(1st Cir. 1999). The defendants have

failed to convince us that the result ought to differ in their

criminal case, where the collateral order exception is even more

limited.

- 15 - D.

Finally, to the extent that Judge Joseph and Deputy

MacGregor merely allege that the indictment fails to state an

offense, this theory is not amenable to interlocutory appeal. As

the Supreme Court has explained, "an order denying a motion to

dismiss an indictment for failure to state an offense . . . may be

reviewed effectively, and, if necessary, corrected if and when a

final judgment results." Abney,

.5

III.

Given the strictures of the collateral order doctrine as

applied in criminal cases, we find ourselves without jurisdiction

to review before final judgment the district court's order denying

the defendants' motions to dismiss the indictments. We therefore

dismiss their appeals without expressing any views on the merits

of any charges or defenses in this apparently unprecedented

prosecution.

5 The Court also held that such orders are "plainly not 'collateral' in any sense of that term" because they "go[] to the very heart of the issues to be resolved at the upcoming trial." Abney,

.

- 16 -