United States of America, Plaintiff-appellee, v. David R. Benjamin; Philip C. Bourdette; Miriam R.bourdette; Cecilia Jason Dederich; Dan L.garrett, Jr.; Elizabeth Missakian;sybil Schiff; Steven Simon;dan Sorkin,defendants-appellants.united States of America, Plaintiff-appellee, v. David R. Benjamin, Philip C. Bourdette, Miriam R. Bourdette,cecilia Jason Dederich; Dan L. Garrett, Jr.;elizabeth Missakian; Steven Simon, Dansorkin, Defendants-appellants, 879 F.2d 676 (9th Cir. 1989)

This appeal is the result of a Justice Department investigation of the Synanon Church. Nine codefendants are charged in a twenty-two count indictment with conspiracy, concealment of material facts, obstruction of justice and perjury. In United States v. Benjamin, 812 F.2d 548 (9th Cir. 1987) (Benjamin I), we held that all nine defendants were entitled to an interlocutory appeal from the district court's denial of their motion to dismiss the indictment for violation of a rule prohibiting disclosure of matter before a grand jury. In United States v. Dederich, 825 F.2d 1317 (9th Cir. 1987) (Benjamin II), we similarly held that eight of the codefendants were entitled to an interlocutory appeal from the district court's denial of a motion to dismiss the indictment due to prosecutorial misconduct. The merits of the case were reached in United States v. Benjamin, 852 F.2d 413 (9th Cir. 1988) (Benjamin III) .

The Supreme Court granted certiorari in Benjamin III, vacated the opinion of the merits panel and remanded for further consideration in light of Midland Asphalt Corp. v. United States, 489 U.S. ----, 109 S. Ct. 1494, 103 L. Ed. 2d 879 (1989). In Midland Asphalt, the Supreme Court explicitly rejected this court's decision in Benjamin I by holding that an order denying a motion to dismiss an indictment for an alleged violation of Fed. R. Crim. P. 6(e) is not an appealable collateral order. Id. at 109 S. Ct. at 1497. And this court recently held that an order denying a motion to dismiss an indictment on the basis of prosecutorial misconduct is similarly not an appealable collateral order. United States v. Schiff, 874 F.2d 705, 706 (9th Cir. 1989).

Accordingly, we hold that we lack jurisdiction over the appeal from the denial of the motions to dismiss the indictment considered in Benjamin III. We vacate our previous decisions in Benjamin I and Benjamin III. We also vacate that portion of our decision in Benjamin II that denied the motion to dismiss on appeal 86-1388.

APPEAL DISMISSED.