PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 94-4ll8 

D. C. Docket No. 9l-708-CR-JAG

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

HARVEY N. SHENBERG,

ALFONSO C. SEPE,

DAVID GOODHART,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Southern District of Florida

 

(July 12, 1996) 

 

Before HATCHETT and BARKETT, Circuit Judges, and GODBOLD, Senior

Circuit Judge.

HATCHETT, Circuit Judge:

The court dismisses this appeal because the ruling in a

consolidated case has rendered the issue in this case moot.

FACTS

In 1989, federal and state prosecutors set-up a "sting

operation" called "Operation Court Broom" to investigate alleged 

corruption in the Circuit Court of Dade County, Florida. As a
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result of the investigation, a federal grand jury in the Southern

District of Florida returned a l06-count indictment against

County Judge Harvey Shenberg, David Goodhart, a lawyer, and seven

other persons for conspiring to violate the Racketeer Influence

and Corruption Act (RICO), and related crimes including multiple

acts of bribery, extortion, mail fraud, money laundering, and

case fixing. 

The district court severed the trials of Shenberg, Goodhart,

and two codefendants from the remaining codefendants. The trial

commenced in September l992. On April 26, l993, the jury

returned verdicts finding Shenberg and Goodhart guilty of RICO

conspiracy, and finding Shenberg guilty of attempted extortion. 

The other charges against Shenberg, Goodhart, and the two

codefendants either resulted in acquittals or hung jury verdicts.

In July l993, Shenberg and Goodhart appealed. Shortly after

the filing of their appeals, the government served Shenberg and

Goodhart with grand jury subpoenas seeking information about

other persons not previously indicted. Based upon Shenberg and

Goodhart's representations to the government that they intended

to invoke their Fifth Amendment privilege before the grand jury,

the government granted Shenberg and Goodhart "use" immunity

pursuant to l8 U.S.C. §§ 6002-6003. Thereafter, Shenberg and

Goodhart filed motions, under seal, to quash the subpoenas

contending that the government's grant of immunity did not

sufficiently protect them against self-incrimination on the

mistried counts. On September 28, l993, the district court

entered an order quashing the subpoenas without prejudice, ruling
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that the government could re-serve the subpoenas at the

conclusion of the appellees' retrial on the mistried counts. 

The government then filed a motion to dismiss the mistried

counts against Shenberg and Goodhart, without prejudice, and a

motion to reconsider the order quashing the subpoenas. In

support of its motion to reconsider, the government asserted that

it would only pursue prosecution on the mistried counts if

Shenberg and Goodhart's convictions were reversed on appeal. The

district court granted the government's motion. On

reconsideration, however, the district court reaffirmed its

decision to quash the subpoenas finding that the indictment still

subjected the appellees to further prosecution because the

government would only dismiss the mistried counts without

prejudice. The government filed this appeal.

DISCUSSION

The government filed this appeal challenging the district

court's order quashing the grand jury subpoenas contending that

"use" immunity under l8 U.S.C. §§ 6002-6003 sufficiently protects

appellees' Fifth Amendment right against self-incrimination. See

Kastigar v. United States, 406 U.S. 44l (l972). In the district

court's order quashing the grand jury subpoenas, the court ruled

that the government could re-serve the subpoenas at the

conclusion of the retrial on the mistried counts. 

As a result of our affirmance of the appellees' convictions

in the consolidated case of United States v. Shenberg, et al.,

Nos. 93-4798 and 93-4906, and the government's agreement to

dismiss with prejudice the mistried counts against the appellees
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in the event of our affirmance, the indictment no longer subjects

appellees to further prosecution. Consequently, the district

court's grounds for quashing the subpoenas no longer exist. 

Where intervening events render issues on appeal moot, "[f]ederal

courts do not have jurisdiction under the Article III 'Case or

Controversy' provision of the United States Constitution to

decide [the questions of law raised]." Westmoreland v. National

Transportation Safety Board, 833 F.2d l46l, l462 (llth Cir.

l987). Because these intervening events permit the government to

re-serve the subpoenas, we hold the issue on appeal is now moot.

CONCLUSION

For the reasons stated above, this appeal is dismissed as

moot.

DISMISSED