*Pursuant to the court’s order dated July 17, 1998, this panel has determined

unanimously that oral argument is not necessary in this matter. SeeFed. R. App. P. 34(f); -1- 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 5 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 98-1247 TIMOTHY JAMES McVEIGH, Defendant-Appellant, and TERRY LYNN NICHOLS,
Intervenor.

STATE OF OKLAHOMA, Amicus Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D.C. No. 96-CR-68-M)

Submitted on the Briefs: *10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

1 On August 17, 1998, we entered an order allowing Terry Lynn Nichols to intervene in this appeal. In companion appeal number 98-1246, Mr. Nichols challenges entry of the same order which is at issue in this matter. -2- Sean Connelly, Special Attorney to the United State s Attorney General, Denver, Colorado (Patrick M. Ryan, United States Attorney, Oklahoma City, Oklahoma, Larry A. Mackey, Special Attorney to the United States Attorney General, Denver, Colorado, with him on the briefs), for Plai ntiff-Appellee. Robert Nigh, Jr., Tulsa, Oklahoma, and Richard Burr , Houston, Texas, for Defendant-Appellant. Susan L. Foreman, Michael E. Tigar, and Adam Thursc hwell, Boulder, Colorado, (Jane B. Tigar, Boulder, Colorado, with them on the briefs), for Intervenor Terry Lynn Nichols. Robert H. Macy, District Attorney, and Patrick J. M organ, First Assistant District Attorney, Oklahoma City, Oklahoma, for Amicus Curia e State of Oklahoma.

Before EBEL , KELLY , and MURPHY , Circuit Judges.

MURPHY , Circuit Judge.

Defendant Timothy McVeigh appeals from the districtcourt’s June 24, 1998, order rescinding certain restrictions which p revented federal agents from cooperating with state officials investigating the Oklahoma City bombing 1 . With intervenor Terry Lynn Nichols, Mr. McVeigh maintain s the district court erred when it granted the government’s motion to rescind a previously imposed prohibition on federal cooperation with the Oklahom a County District Attorney-3-

and especially empaneled state grand jury in Oklaho ma. We exercise jurisdiction pursuant to 28 U.S.C. §1292(a)(1) and affirm on the merits. Background On August 10, 1995, the federal grand jury in the W estern District of Oklahoma indicted Timothy McVeigh and Terry Lynn Ni chols on multiple charges stemming from the bombing of the Alfred P. Murrah office building in Oklahoma City on April 19, 1995. See United States v. McVeigh , No. 97-1287, 1998 WL 568351, at *1-2 (10th Cir. Sept. 8, 1998)(p roviding factual background). On August 23, 1995, Judge Wayne Alley, then the pre siding judge of the district court proceedings, entered an “Agre ed Order” which addressed several pretrial matters. That order stated, in pe rtinent part:

Discovery materials may be disclosed only to the pa rties, their counsel and agents, except that such materials may be disclosed as necessary: (a) during court proceedings, including trial, hearings, or legal filings in this case; or (b) to potential wit nesses, provided that such witnesses are made aware of and agree to honorthe terms of this protective order. ROA Vol. II, doc. 228, at 4. Following the recusal of Judge Alley, and subsequent transfer of the proceedings to Chief Jud ge Matsch in Colorado, counsel for Mr. Nichols filed a motion seeking an in camera inquiry to determine whether individuals with access to discovery materi als were violating the Agreed Order through inappropriate dissemination of inform ation to the press. The government joined in that motion.-4-

On June 13, 1996, the district court entered an ord er entitled “Memorandum Opinion and Order Regarding Extrajudicial Statement s by Attorneys and Support Personnel.” That order covered a broad scope of is sues. Its intent, however, was to “articulate the particular standards to be follo wed in this litigation . . . for future guidance in all forms of extrajudicial state ments about [the] litigation.” United States v. McVeigh , 931 F. Supp. 756, 760 (D. Colo. 1996). The orde r provided: A. None of the lawyers in this case or any persons associated with them, including any persons with supervisory authority over them, will release or authorize the release of info rmation or opinion about this criminal proceeding which a reasonable p erson would expect to be disseminated by any means of public co mmunication, if there is a reasonable likelihood that such disclosu re will interfere with a fair trial of the pending charges or otherwi se prejudice the due administration of justice. B. This duty to refrain from prejudicial disclosure s requires all counsel to take reasonable precautions to prevent a ll persons who have been or are now participants in or associated with the investigations conducted by the prosecution and def ense from making any statements or releasing any documents that are not in the public record and that are reasonably expected to be publi cly disseminated which would be likely to materially prejudice the f airness of this criminal proceeding. Id. In addition, the district court went on to prohib it any extrajudicial statements concerning “[t]he existence or contents of any stat ements given by the defendants to any law enforcement personnel” and “[t]he perfor mance of any examinations or tests or any defendant’s refusal or failure to subm it to any examination, or test.” Id.-5-

Timothy McVeigh’s trial concluded in June of 1997 w ith a guilty verdict on all counts. In September of 1997, prior to Mr. Ni chols’ trial, the government filed a motion to clarify whether the orders restri cting extrajudicial statements likewise prohibited the prosecution’s cooperation w ith the Oklahoma grand jury investigating the bombing. In a hearing held on Se ptember 8, 1997, the district court indicated the government could not disseminat e materials to Oklahoma authorities. The court stated “I don’t want to be interpreted as trying to obstruct a lawful grand jury in Oklahoma. On the other hand, my responsibility is to this trial and this case . . . .And [the Oklahoma state grand jury is] just going to have to wait . . . until the conclusion of these proceed ings.” ROA Vol. I, Tr. of 9/8/97,
at 21-22. Approximately three months later, after completion of Mr. Nichols’ trial, the district court received a letter from the state trial judge conducting the grand jury proceedings in Oklahoma. In that letter, whic h was forwarded to all the parties, the judge made specific inquiry whether th e two orders at issue here prevented federal assistance in the state proceedin gs. Using the letter as a catalyst, the government filed a formal motion requ esting removal of any restrictions which would prohibit cooperation with state authorities. On June 24, 1998, the district court entered an order granting the government’s request “insofar as this court’s previous orders precluded the federal government’s2Mr. McVeigh originally filed an emergency motion for stay of the district court’s

order on June 25, 1998, in appeal number 97-1287. The court granted that motion. On June 30, the court dissolved that stay in light of Mr. McVeigh’s failure to file a notice of appeal. This proceeding followed. -6- cooperation with the Oklahoma County District Attor ney and the especially empaneled state grand jury, except that the governm ent shall not disclose any documents, papers, objects and information providedby the defendants through reciprocal discovery.” ROA Vol. II, doc. 6149, at 3. On July 1, 1998, Mr. McVeigh filed his notice of appeal. We granted a s tay of the order that same day. 2
Discussion As a threshold matter, we must consider whether we have jurisdiction to consider this appeal. See United States v. Dickstein , 971 F.2d 446, 447 (10th Cir. 1992). Generally, we are limited to considering fi nal orders which are accompanied by the entry of judgment. See 28 U.S.C. §1291. Here, however, we are in a curious procedural posture. The trial cou rt’s June 24 order was issued after entry of judgment in Mr. McVeigh’s case. Ind eed, his direct criminal appeal was at issue at the time the order was filed. Neve rtheless, the order was interlocutory in nature. As a result, we must cons ider whether it is immediately appealable under any of the recognized exceptions t o the final judgment rule. Because we conclude the order had the effect of mod ifying or dissolving a-7-

previously imposed injunction, we have jurisdiction under 28 U.S.C. §1292(a)(1). Section 1292(a)(1) provides that courts of appeal s hall have jurisdiction to hear matters arising from orders “granting, continu ing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions.” 28 U.S.C. §1292(a)(1). If the order in question is clearly i njunctive in nature, the statute provides a vehicle for immediate appeal without further inquiry. See MAI Basic Four, Inc. v. Basis, Inc. , 962 F.2d 978, 981 (10th Cir. 1992). Where, as he re, however, the order in question merely has the “prac tical effect” of an injunction, we apply a three part test to determine applicability of the statute. See id. at 982. To invoke §1292(a)(1) jurisdiction here, the distri ct court’s order 1) must have the practical effect of granting or denying in junctive relief, 2) must be one which will result in serious or irreparable consequ ences if executed, and 3) must be a directive which can be challenged effectively only through immediate appeal. See Tri-State Generation & Transmission Ass’n v. Shoshone River Power, Inc. , 874 F.2d 1346, 1351 (10th Cir. 1989); United States v. Colorado , 937 F.2d 505, 507-08 (10th Cir. 1991)

. Each prong must be satisfied in order for jurisdict ion to attach. State of Utah ex rel Utah State Dep’t of Health v. Kennecott Corp ., 14 F.3d 1489, 1496-97 (10th Cir. 1994) (rejecting juri sdiction where appellant did not meet all three prongs).-8-

The government maintains that because the underlyin g orders merely controlled the course of discovery they cannot be i njunctive in nature. Discovery orders are generally not appropriate for interlocutory review. See FTC v. Alaska Land Leasing, Inc. , 778 F.2d 577, 578 (10th Cir. 1985)

. At the core of the June 16, 1996, order, however, was a prohibition on exch anging information. The order did not, as the government maintains, merely “regulate materials exchanged between the parties incident to the litigation.” United States v. Pappas , 94 F.3d 795, 798 (2nd Cir. 1996). Rather, it prohibited federal agents from cooperati ng with state authorities in an ongoing criminal inves tigation. The trial court’s June 24 order constituted a dissolution of the earlier p rohibition. As such, it was injunctive in effect. See United Nuclear Corp. v. Cranford Ins. Co. , 905 F.2d 1424, 1426 (10th Cir. 1990)(finding jurisdiction wh ere order at issue modified a prior protective order following conclusion of the trial court proceedings). We likewise conclude appellants have satisfied the “serious consequences” prong of the jurisdictional test. Mr. McVeigh and Mr. Nichols maintain there is great risk in releasing information to the state au thorities. The risk, they argue, is the likely adverse publicity, via dissemination to the public, which the release to the state authorities will bring. The argument fol lows that this adverse publicity, in turn, will seriously prejudice the defendants an d cripple any ability to ensure a3 The opinion in appeal number 97-1287, United States v. McVeigh , issued on

September 8, 1998. This matter is not moot, however, because Mr. McVeigh has a petition for rehearing pending in that case. -9- fair trial if this court grants that relief. 3 For purposes of analyzing the jurisdictional question, these potential consequenc es are serious enough to warrant immediate review. Finally, we turn to the third prong of the test. T he precise inquiry here is not whether any review can be had, but rather, whet her the order at issue can be challenged effectively only through immediate review. See Carson v. American Brands , 450 U.S. 79, 84-90 (1981) (discussing appropriate ness of immediate review and parties’ inability to effectively challenge order under consideration)

. If, as Mr. McVeigh suggests, the harm of disseminat ion cannot be remedied once the government has turned over all of the materials and potential witnesses, there can be no effective challenge in a subsequent proce eding. There is no question, given the procedural posture of this matter, that t he more efficient and effective method of review rests in this court, at this time. Moreover, we acknowledge this court’s historical emphasis on avoiding piecemeal litigation. See Boughton v. Cotter Corporation , 10 F.3d 746, 748 (10th Cir. 1993)(noting “the burden on appellate courts i mposed by fragmentary and piecemeal review of the district court’s myriad rul ings in the course of a typical case”). That goal is fostered if we, as an appellate court, are able to review all of-10-

the district court’s rulings as a whole, rather tha n on a fragmented basis. The most efficient way to challenge the order at issue here is through immediate review. Doing so promotes judicial economy. Cons equently, we hold this order is appropriate for review pursuant to §1292(a)(1). We now turn to the merits of this appeal. We review the trial court’s decision to modify this injunction under an abuse of discretion standard. See Prows v. Federal Bureau of Prisons , 981 F.2d 466, 468 (10th Cir. 1992). Applying that standard, we will not disturb the dis trict court’s decision unless “‘ we have a definite and f irm conviction’” that the order was entered in error or that the trial court “‘exce eded the bounds of permissible choice’” in the circumstances presented. United States v. Talamante , 981 F.2d 1153, 1155 (10th Cir. 1992) (quoting United States v. Ortiz , 804 F.2d 1161, 1164 n. 2 (10th Cir. 1986))

. We have previously defined abuse of discretion as “ an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.” United States v. Hernandez-Herrera , 952 F.2d 342, 343 (10th Cir. 1991) (quotations omitted). It is with this definition in mind that we review the district court’s June 24 order. The district court’s decision to rescind the previo us prohibition on releasing materials to state authorities came after both Mr. McVeigh and Mr. Nichols’ trials were completed. Judgment has entered and both matt ers are on appeal to this-11-

court. In maintaining the prohibition, the trial c ourt ensured the fairness of the federal trials through to their conclusion. The co urt considered removing the prohibition only after considering the procedural p osture of the case and the parties’ briefs on the matter. The record reveals a very careful and deliberate examination of the issues involved. Nevertheless, defendants maintain the potential forharm rests in the future inability to recapture this information once it is released. This argument necessarily hinges on a speculative, rather than co ncrete, potential for harm. Mr. McVeigh and Mr. Nichols maintain it is inevitable t hat leaks to the press will occur if there is federal cooperation with state au thorities. They argue that this dissemination will extinguish any possibility of a fair trial if this court grants relief in either direct appeal. Mr. Nichols also m aintains there is a risk that allowing federal agents to cooperate with state aut horities will impugn the secrecy of the federal grand jury. Fed. R. Crim. P. 6(e)(2 )(noting obligation of secrecy involved in grand jury proceedings)

. We find these arguments unpersuasive. The Rules of Criminal Procedure contemplate cooperation between state and federal authorities. Rule 6(e)(3)(C)(iv) provi des that “disclosure otherwise prohibited by [the grand jury rules] may . . . be m ade when permitted by a court at the request of an attorney for the government, upon a showing that such matters may disclose a violation of state criminal law, to an appropriate official of a state4Defendants’ assumption that the investigation materials will be released to the

public is particularly speculative. All grand jury proceedings in Oklahoma are conducted in secrecy. Okla. Stat. tit. 22, §341. Moreover, both grand jurors and district attorneys are subject to criminal charges in the event of improper disclosure. Id. tit. 21, §583

. -12- or subdivision of a state for the purpose of enforc ing such law.” Fed. R. Crim. P. 6(e)(3)(C)(iv). Thus, not only did the district co urt make a careful decision, it was one which comports with the federal rules. More over, the June 24 order rightly evidences respect for the important notion of state sovereignty. See Younger v. Harris , 401 U.S. 37, 43 (1971)(“Since the beginning of th is country’s history Congress has . . . manifested a desire to p ermit state courts to try state cases free from interference by federal courts.”) 4

. At this procedural juncture, the federal courts should not be used as a vehicle to p rotect these defendants from lawful state authorities. Reversal of the districtcourt’s order would have that exact result. In the event that either of these defendants receiv es a new trial, there are safeguards available to ensure the fairness of the federal proceedings. The trial court has many remedies available to protect the in tegrity of the jury process. These very defendants have already been privy to ma ny of those options. The order of June 24 was limited in scope and did not apply to reciprocal discovery materials. Given that limitation, and the status o f these proceedings, we hold the-13-

district court did not abuse its discretion in lift ing the previous prohibition on cooperation with the state authorities. The order of the district court is AFFIRMED. The s tay entered on July 1, 1998, will dissolve on the date the mandate issues in this appeal. That mandate shall issue in the usual course pursuant to Federal Rule of Appellate Procedure 41(a).