United States v. Nicolette Alexander, 985 F.3d 291

In Sept. 2016 Alexander and co‑defendants were indicted for a tax‑refund fraud scheme; nine defendants (including Alexander) faced aggravated identity‑theft counts.
One grand juror on the original indictment was an alleged victim whose full name and related exhibit appeared in the grand‑jury materials; that juror had been interviewed by the IRS months earlier and voted to indict.
The Government discovered the grand‑jury participation issue months later and obtained a superseding indictment from a new grand jury in Oct. 2018 (major change: victims’ full names replaced with initials); the Government declined to proceed on the original indictment.
Alexander and co‑defendants moved to dismiss both indictments, arguing violations of the Grand Jury Clause and Fed. R. Crim. P. 6(d), and contending the superseding indictment was time‑barred and could not relate back.
The District Court denied the motions, concluding any prejudice from the original grand jury could be cured by the valid superseding indictment and that the superseding indictment was not time‑barred; Alexander filed an interlocutory appeal.
The Third Circuit dismissed the appeal for lack of jurisdiction, holding the collateral‑order doctrine did not authorize immediate review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the denial of the pretrial motions to dismiss is immediately appealable under the collateral‑order doctrine	The order is effectively unreviewable after trial (Mechanik) and the Grand Jury Clause gives a right not to be tried that is immediately reviewable	The order is not a final decision and fails Cohen’s collateral‑order criteria (not separate from merits; reviewable after final judgment)	Dismissed for lack of jurisdiction: order fails Cohen’s second and third requirements
Whether the grand‑jury defect here was so fundamental that the indictment was not an indictment (i.e., right not to be tried)	The juror/victim participation so tainted the grand jury that the original indictment was void and thus merits immediate review	The defect is a substantive grand‑jury error (bias/probable‑cause issue), not a technical/constitutive defect; any error can be reviewed after trial	The defect was not so fundamental; challenge implicates the merits and is not immediately appealable

United States v. Mechanik, 475 U.S. 66 (1986) (a guilty verdict can render grand‑jury Rule 6(d) errors harmless beyond a reasonable doubt)
Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989) (orders denying motions to dismiss for grand jury secrecy violations are not collateral orders because they are enmeshed in the merits)
Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) (articulates three‑part test for collateral‑order jurisdiction)
United States v. Wright, 776 F.3d 134 (3d Cir. 2015) (limits interlocutory review to technical challenges that render an indictment invalid)
United States v. Tucker, 745 F.3d 1054 (10th Cir. 2014) (distinguishes immediately reviewable technical defects from substantive merits challenges)
Bank of Nova Scotia v. United States, 487 U.S. 250 (1988) (to prevail on a grand‑jury error defendant must show the violation substantially influenced the grand jury or there is grave doubt)