# 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 HoopesBrooks 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 ap pellant 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 Sc holars , 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- 3

- KAYATTA , Circuit Judge
. Th e s e appeal s 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. T he defendants request that we step in now and review the trial court's refusal to dismis s the ir indictment s 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 th e defendants' reque st for pre

- trial review of the denial of their motions to dismiss because the ir 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 arr est 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.- 4

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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 Enforcem ent (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.
T hese 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 wait ed
. The government alleges that Judge Joseph purposefully helped A.S.- 5

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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, a llegedly in violation of Massachusetts court rule s . 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 th e 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 18 U.S.C. § 1512(c)(2) and (k); obstructing justice in violation of 18 U.S.C. § § 2 and 1512(c)(2); and obstructing a federal proceeding in violation of 18 U.S.C. § § 2 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.- 6

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prosecution for actions taken in her judicial capacity. B oth 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 reas ons, we find that th e s e appeal s 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 28 U.S.C. § 1291 ; DiBella v. United States , 369 U.S. 121, 124 ( 1962) ("The general principle of federal appellate jurisdiction
. . . requires that review of
. . . proceedings await their termination by judgment .")
. "Adherence to this rule of fi nality has been particularly stringent in criminal prosecutions because 'the delays and disruptions attendan t upon intermediate appeal , ' which the rule is designed to avoid , 'are especially inimical to the effective and f air administration of the criminal law.'" Abney v.- 7

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United States , 431 U.S. 651, 657 (1977) (quoting DiBella , 369 U.S. at 126)
. 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 , 489 U.S. 794, 798 (1989) (quoting Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541, 546 (1949)).

The collateral order doctrine is a narrow exception, which the Supreme Court "ha[s] interpreted
. . . 'with the utmost strictness' in criminal cases." Id. at 799 (quoting Flanagan v. United States , 465 U.S. 259, 265 (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 j udgment.'" Id. (quoting Coopers & Lybrand v. Livesay , 437 U.S. 463, 468 (1978)).

For our purposes, we need only train our attention on the third requirement

-- that the order in question cannot- 8

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effectively be reviewed at the end of the case. T he Supreme Court has to date identified four types of orders that satisfy this requirement and qualify as collateral orders in criminal proceedings: o rders denying motions to reduce bail, Stack v. Boyle , 342 U.S. 1 , 6

– 7 (1951); orders denying motions to dismiss a n in dictment on double jeopardy grounds, Abney , 431 U.S. at 659

– 62 ; orders denying a motion to dismiss a n indictment under the Constitution's Speech or Debate Clause, Helstoski v. Meanor , 442 U.S. 500 , 506

– 08 (1979); and orders allowing involuntary medication to render a defendant competent to stand trial, Sell v. United States , 539 U.S. 166, 1 75

– 77 (2003).

In each of these instances, Midland Asphalt 's third requirement wa s satisfied because the protected right (freedom from excessive bai l, a guarantee not to stand trial, and protection against forced medication) would have be en 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 assert s 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- 9

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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 prosecut ion
. Thus, she reasons, she will lose a n 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')." 489 U.S. at 801 (second and third alterations in original) (internal citations omitted). In adopting this rule for interlocutory appeal s in criminal case s , the Court recognized that , absent such a strict construction, very many legal defenses might be said to confer a right not to be tried. Id. (" [A] ny legal rule can be said to give rise to a ' right not to be tried'- 10

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if failure to observe it requires the trial court to dis mi ss the indictment or terminate the trial.")
. So by limiting interlocutory appeals to those "right s not to be tried" that are explicitly set forth in a statute or the C onstitu tion, the C ourt 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." Id. at 799 (quoting Flanagan , 465 U.S. at 265 ).

Judge Joseph argue s that we should overlook Midland Asphalt 's pronouncement that a right not to be tried must be explicit ly rooted in a statute or the C onstitution. In support of this argument, she point s to Sell , 539 U.S. 166
. Sell , though, d id not suggest that Midland Asphalt wa s no longer good law. Sell did not even involve a claim ed right not to be tried. Rather, the defendant in that case invoked a right not to be involuntarily medicated. 539 U.S. at 169, 177. So the fact that the Supreme Court did not seek to locate that particular right i n an explicit statutory or constitutional g uarantee 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 . " 489 U.S. at 801 (emphasis- 11

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added) ; see also Shalala v. Ill
. Council on Long Term Care, Inc. , 529 U.S. 1, 3 (2000) (noting that the Supreme Court "does not normally overturn, or
. . . dramatically limit, earlier authority sub silentio ").

Judge Jose ph 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 judgmen t . " 472 U.S. 511, 525 (1985)
. But Mitchell was a civil case to which the more stringent rules applicable to criminal proceedings d id not apply. Midland Asphalt , decided four years after Mitchell , governs this criminal case. So Judge Joseph cannot obtain interlocutory review of her judicial immun ity 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 sa tisfy Midland Asphalt 's

s t rictures
.

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.- 12

- B . The d efendants' cl aim 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: "T he powers not delegated to the United States by the Constitution, nor prohibited by it to the S tates, are reserved to the S tates respectively, or to the people. " U.S. Const. amend. X. In past cases, t he 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 , 521 U.S. 898 (1997); New York v. United States , 505 U.S. 144 (1992). The defendants claim that the ir pro secution is a tool of

" impermissible commandeering

-- an attempt to require state offic er s 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 wit hout considering facts contrary to those alleged in the indictment. T he indictment does
not allege that Judge Joseph and Deputy MacGregor merely declined to enforce federal immigration law. I nstead, i t alleges that they affirmative ly interfere d with fede ral officials' attempts to enforce federal law. So we are not convinced that the defendants' Tenth Amendment theory is " completely separate from the merits " of- 13

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the charges against them. Midland Asphalt , 489 U.S. at 799 (quoting Coopers & Lybrand , 437 U.S . at 468)
.

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 C ou nty , 166 F.3d 1222 (10th Cir. 1999) ( per curiam) (unpublished table opinion)
. But that theory fails because we do
not glean in the Tenth Amendment's text a n y " guarantee that trial will not occur ." Midland Asphalt , 489 U.S. at 801. 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 . A t 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

4 Although not at issue in this case, the Eleventh Amendment provides a useful co ntrast on this point. Its text reads: " T he J udicial 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 C itizens of another S tate, or by C itizens or S ubjects of any F oreign S tate. " U.S. Const. amen d. 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. , 506 U.S. 139, 141, 146 n.5 (1993).- 14

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federal immigr ation law
. But t his 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 tr ial and the very significant anxiety of being defendant s 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: t hat this prosecution will chill other judges from refusing to assist federal officials
. But the facts alleged here

-- affirmative acts of deception and violation s of several state policies

-- are largely sui generis.
More over , 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' motion s to dismiss based on this Tenth Amendment, anti

-- 15

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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' c laim 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 the ir 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 righ t 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 , 489 U.S. at 801
.

And w ith 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 , 187 F.3d 1, 14 (1st C ir. 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
.- 16

- D. Finally, t o the extent that Judge Joseph and Deputy MacGregor merely allege that the indictment fails to state a n 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 effec tively, and, if necessary, corrected if and when a final judgment results." Abney , 431 U.S. at 663
. 5
III.
G iven the strictures of the collateral order doctrine as applied in criminal cases , we find ourselves without jurisdiction to review before final jud gment 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 , 431 U.S. at 663
.