Unpublished Disposition, 852 F.2d 1291 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 1291 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.ROSENDIN ELECTRIC, INC., Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.C.V.E., INC., Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Louis M. ROSENDIN, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.William O. SCHAFHIRT, Defendant-Appellant.

Nos. 87-1115, 87-1117, 87-1118 and 87-1120.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 11, 1988.Decided July 20, 1988.

Before PREGERSON, BOOCHEVER, and BEEZER, Circuit Judges.


The defendants appeal from the district court's order denying their motion to dismiss the indictment. We have jurisdiction under the collateral order exception to the final judgment rule. See United States v. Benjamin, 812 F.2d 548, 551-53 (9th Cir. 1987); United States v. Dederich, 825 F.2d 1317, 1319-21 (9th Cir. 1987).1 

We review for abuse of discretion a district court's denial of a motion to dismiss an indictment. United States v. Gonzalez, 800 F.2d 895, 899 (9th Cir. 1986). A district court may not dismiss an indictment unless the defendants make a showing of prejudice. Bank of Nova Scotia v. United States, --- S. Ct. ----, 56 U.S.L.W. 4714, 4715, 4718 (U.S. June 22, 1988). If the asserted grand jury irregularities could not have affected the grand jury's decision to return the indictment, there is no prejudice. Id. at 4716. The defendants have failed to demonstrate how the asserted grand jury irregularities in this case could have affected the grand jury's decision to issue the indictment. Because the defendants failed to show the requisite prejudice, the district court did not abuse its discretion in denying the motion to dismiss the indictment.

Nor did the district court abuse its discretion in refusing to allow questioning during the evidentiary hearing regarding Kwong's participation in a prior related investigation. See United States v. Wencke, 604 F.2d 607, 611 (9th Cir. 1979) (per curiam) (the mere fact that "a government attorney involved in a civil investigative phase is appointed Special Assistant United States Attorney in subsequent grand jury proceedings.... does not require disqualification.")



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


We note that the Supreme Court has granted certiorari in United States v. Midland Asphalt Corp., 840 F.2d 1040 (2d Cir.), cert. granted, --- S. Ct. ----, 56 U.S.L.W. 3879 (June 27, 1988). Midland Asphalt Corp. involves the issue whether an order denying a motion to dismiss an indictment for alleged violations of Fed. R. Crim. P. 6 is an appealable interlocutory order. See 56 U.S.L.W. 3873 (June 27, 1988). In view of our resolution of this case, we do not believe that it would be fair to the parties to withhold our decision pending the outcome of Midland Asphalt Corp