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 Hoopes 
Brooks 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 appellant 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 Scholars, 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
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KAYATTA, Circuit Judge. These appeals 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. The defendants request that we step in now and 

review the trial court's refusal to dismiss their indictments 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 the defendants' request for pre-trial 

review of the denial of their motions to dismiss because their

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 arrest 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.
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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 Enforcement (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. 

These 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 waited. 

The government alleges that Judge Joseph purposefully helped A.S. 
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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, allegedly in violation of 

Massachusetts court rules. 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 the 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-overthe-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.
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prosecution for actions taken in her judicial capacity. Both 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 reasons, we find that these appeals 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 finality has been 

particularly stringent in criminal prosecutions because 'the 

delays and disruptions attendant upon intermediate appeal,' which 

the rule is designed to avoid, 'are especially inimical to the 

effective and fair administration of the criminal law.'" Abney v. 
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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 judgment.'" 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 
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effectively be reviewed at the end of the case. The Supreme Court 

has to date identified four types of orders that satisfy this 

requirement and qualify as collateral orders in criminal 

proceedings: orders denying motions to reduce bail, Stack v. Boyle, 

342 U.S. 1, 6–7 (1951); orders denying motions to dismiss an 

indictment on double jeopardy grounds, Abney, 431 U.S. at 659–62; 

orders denying a motion to dismiss an 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, 175–77 (2003).

In each of these instances, Midland Asphalt's third 

requirement was satisfied because the protected right (freedom 

from excessive bail, a guarantee not to stand trial, and protection 

against forced medication) would have been effectively lost if not 

vindicated before final judgment entered. Consequently, a postjudgment appeal would come too late.

So in this case, we ask whether either defendant asserts

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 
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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 prosecution. 

Thus, she reasons, she will lose an 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 appeals in criminal cases, 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' 
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if failure to observe it requires the trial court to dismiss the 

indictment or terminate the trial."). So by limiting interlocutory 

appeals to those "rights not to be tried" that are explicitly set 

forth in a statute or the Constitution, the Court 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 argues that we should overlook Midland

Asphalt's pronouncement that a right not to be tried must be

explicitly rooted in a statute or the Constitution. In support of 

this argument, she points to Sell, 539 U.S. 166. Sell, though, 

did not suggest that Midland Asphalt was no longer good law. Sell

did not even involve a claimed 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 in an explicit 

statutory or constitutional guarantee 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 
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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 Joseph 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 judgment." 

472 U.S. 511, 525 (1985). But Mitchell was a civil case to which 

the more stringent rules applicable to criminal proceedings did

not apply. Midland Asphalt, decided four years after Mitchell, 

governs this criminal case. So Judge Joseph cannot obtain

interlocutory review of her judicial immunity 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 satisfy Midland Asphalt's 

strictures.

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.
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B.

The defendants' claim 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: "The powers not delegated 

to the United States by the Constitution, nor prohibited by it to 

the States, are reserved to the States respectively, or to the 

people." U.S. Const. amend. X. In past cases, the 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 their prosecution is a tool of 

"impermissible commandeering -- an attempt to require state 

officers 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 without considering facts 

contrary to those alleged in the indictment. The indictment does 

not allege that Judge Joseph and Deputy MacGregor merely declined

to enforce federal immigration law. Instead, it alleges that they 

affirmatively interfered with federal officials' attempts to 

enforce federal law. So we are not convinced that the defendants' 

Tenth Amendment theory is "completely separate from the merits" of 
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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 County, 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 any "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. At 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 contrast on this point. Its text reads: "The 

Judicial 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 Citizens of another State, or 

by Citizens or Subjects of any Foreign State." U.S. Const. 

amend. 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).
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federal immigration law. But this 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 trial and the very significant anxiety of being 

defendants 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: that this prosecution

will chill other judges from refusing to assist federal officials.

But the facts alleged here -- affirmative acts of deception and 

violations of several state policies -- are largely sui generis. 

Moreover, 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' motions to dismiss based on this Tenth Amendment, anti-
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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' claim 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 their 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 right 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 with respect to the defendants' due-process claims, 

we have concluded in the civil context that if a party's "dueprocess 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 Cir. 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.
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D.

Finally, to the extent that Judge Joseph and Deputy 

MacGregor merely allege that the indictment fails to state an 

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 effectively, and, if necessary, corrected if and when a 

final judgment results." Abney, 431 U.S. at 663.5

III.

Given the strictures of the collateral order doctrine as 

applied in criminal cases, we find ourselves without jurisdiction 

to review before final judgment 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.