United States v. Tucker
2014 U.S. App. LEXIS 4510
10th Cir.2014Background
- Tri-County Autoplex obtained a bank line of credit using MSO documents; indictment alleges Tri-County and ATI employees used fraudulent MSOs to obtain credit from Texas Capital Bank.
- Michael Calhoun (Tri-County GM) was subpoenaed and testified before a federal grand jury after being represented, at different times, by attorneys paid by the Bank (Wyatt, then Mills); Calhoun’s grand jury testimony incriminated himself and co-defendants Davis and Tucker.
- Calhoun’s civil counsel coordinated with the Bank to procure criminal counsel paid by the Bank and represented that the Bank did not want Calhoun prosecuted; Calhoun was told cooperation would avoid prosecution or result in leniency.
- A 60-count indictment charging wire/mail fraud and conspiracy was returned based wholly on Calhoun’s grand jury testimony; the government later filed a one-count information against Calhoun.
- Calhoun (through new counsel) moved to quash the indictment and suppress his grand jury testimony, arguing the Bank-funded counsel had an actual conflict that coerced Calhoun’s testimony, violating the Fifth and Sixth Amendments; the district court denied the motion.
- Defendants appealed interlocutorily under the collateral-order doctrine; the Tenth Circuit dismissed for lack of jurisdiction, concluding the collateral-order exception does not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court’s denial of motion to quash and suppress is immediately appealable under the collateral-order doctrine | Calhoun: Third-party payment created an actual conflict of interest and compelled testimony; indictment must be quashed now | Government/Respondents: Collateral-order doctrine applies narrowly in criminal cases; these claims are reviewable after final judgment | Denied jurisdiction — collateral-order exception does not apply; appeal dismissed |
| Whether Bank-funded counsel created an actual conflict of interest affecting Calhoun’s testimony (Sixth Amendment) | Calhoun: Bank payment caused divided loyalties and affected counsel’s advice to testify | Government: Third-party payment alone is not automatic conflict; defendant must show specific examples of adverse choices | Not reached on merits (court assumed first two Cohen factors satisfied but found no jurisdiction to decide merits) |
| Whether Calhoun’s grand jury testimony was compelled (Fifth Amendment privilege) | Calhoun: Counsel’s assurances and payment by Bank effectively compelled testimony; using it violates Fifth Amendment | Government: Calhoun spoke voluntarily and did not invoke the privilege; testimony admissible | Not reached on merits due to lack of interlocutory jurisdiction |
| Whether an indictment based on such testimony implicates a right not to be tried that must be vindicated pretrial | Defendants: Indictment tainted; trial would be futile and right cannot be vindicated after trial | Government: Defendants can raise these constitutional claims on direct appeal or in habeas (for ineffective assistance) | Held not to be a right that is "effectively unreviewable" post-judgment; collateral-order doctrine inapplicable |
Key Cases Cited
- Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (establishing collateral-order doctrine)
- Coopers & Lybrand v. Livesay, 437 U.S. 463 (three-factor test for collateral-order review)
- Flanagan v. United States, 465 U.S. 259 (apply collateral-order exception strictly in criminal cases)
- Midland Asphalt Corp. v. United States, 489 U.S. 794 (distinction between right not to be tried and remedial dismissal)
- Abney v. United States, 431 U.S. 651 (double jeopardy claims require immediate review to protect right not to be tried)
- Perlman v. United States, 247 U.S. 7 (narrow rule permitting interlocutory appeal when a third party is subpoenaed and a privilege-holder cannot prevent disclosure)
- United States v. Flood, 713 F.3d 1281 (10th Cir. 2013) (third-party fee arrangements do not automatically create a conflict of interest)
- Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (focus on category-wide treatment of collateral-order doctrine)