United States of America v. Nicolette Alexander

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-3423
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UNITED STATES OF AMERICA
v.
NICOLETTE ALEXANDER,
Appellant
_____________
On Appeal from the District Court
of the Virgin Islands
(D.C. No. 1:16-cr-00021-009)
District Judge: Honorable Wilma A. Lewis
_____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 8, 2020
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Before: SMITH, Chief Judge, CHAGARES and MATEY,
Circuit Judges
(Filed: January 15, 2021)
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John K. Dema
Elise M. Keys
Law Offices of John K. Dema
1236 Strand Street
Suite 103
Christiansted, VI 00820
Counsel for Appellant
Gretchen C.F. Shappert, United States Attorney
Adam Sleeper, Assistant United States Attorney
Office of United States Attorney
5500 Veterans Drive
United States Courthouse, Suite 260
St. Thomas, VI 00802
Alphonso G. Andrews, Jr., Assistant United States Attorney
Office of United States Attorney
1108 King Street
Suite 201
Christiansted, VI 00820
Counsel for Appellee

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____________
OPINION OF THE COURT
____________
CHAGARES, Circuit Judge.
Appellant Nicolette Alexander filed this interlocutory
appeal from the District Court’s order denying various pretrial
motions to dismiss both the original and superseding
indictments against her on the ground that a victim of one of
the charged crimes served on the grand jury that returned the
original indictment. Because the District Court’s order is not
a “final decision[]” of the District Court, see 28 U.S.C. § 1291,
and is not a “collateral” order subject to immediate review
under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541,
546 (1949), we lack jurisdiction and will dismiss the appeal.
I.
On September 15, 2016 the Government charged
Alexander and nine co-defendants with conspiracy to defraud
the United States and theft of government property, in violation
of 18 U.S.C. § 286 and 18 U.S.C. § 641, respectively. Nine of
the ten defendants, including Alexander, were also charged
with aggravated identity theft in violation of 18 U.S.C. §
1028A(a)(1). The indictment described a scheme whereby
Alexander and her co-defendants filed false tax returns using
stolen identities to obtain illegal tax refunds.
One of the grand jurors was an alleged victim of this
scheme. This juror’s full name was listed in the original
indictment as a victim of co-defendant Thema Liverpool, and

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was also contained in an exhibit presented by the Government
during the grand jury proceedings. Moreover, an IRS agent
investigating the scheme had interviewed the alleged victim
approximately eight months before the grand jury was
convened. Nevertheless, when the Government identified
Liverpool and the other defendants at the outset of the grand
jury proceedings and asked whether the jurors knew any of the
defendants, there were no positive responses. The alleged
victim went on to participate in the original grand jury’s
deliberations and voted along with the other 18 jurors to return
a true bill.
The Government learned of this alleged defect in the
original grand jury sometime between January and July of
2017, leading to “protracted ‘interoffice and interdepartmental
discussions regarding how to address the matter.’” Appendix
(“App.”) 11. In late September 2018, the Government
ultimately decided to file a superseding indictment, which was
returned by a new grand jury on October 5 — about a month
before trial was scheduled to begin. The superseding
indictment made only limited changes to the original
indictment: the full names of the victims were replaced with
their initials and minor alterations were made to the “to wit”
clauses in certain counts. The Government disclosed the grand
jury defect to three defendants who had already pleaded guilty
under the original indictment, advising them that if they did not
waive any challenge to the original indictment, they would be
included in the superseding indictment.
On October 12, 2018, after learning of the grand jury
defect the night before, co-defendant Joanne Benjamin filed an
emergency motion to dismiss both indictments, compel
production of certain grand jury materials, and stay all

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proceedings. Alexander filed her own motion to dismiss the
indictments several days later. Following a hearing on October
25, the District Court continued the trial and ordered
supplemental briefing on the issues raised by the defendants.
The court also ordered the Government to provide additional
information on how the grand jury defect was discovered and
addressed and to file certain grand jury materials under seal for
in camera review. Among other things, the moving parties
argued that the defect in the original grand jury violated the
Fifth Amendment’s Grand Jury Clause1 as well as Federal Rule
of Criminal Procedure 6(d).2 They likewise argued that the
superseding indictment was issued after the statute of
limitations expired, could not relate back to the defective
original indictment, and was therefore time-barred.
On October 5, 2019, the District Court denied the
motions to dismiss. In relevant part, the court assumed without
deciding that the defect in the original grand jury was not a
harmless error, but concluded that any resulting prejudice
1 The Grand Jury Clause provides in relevant part that
“[n]o person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury.” U.S. Const. amend. V.
2 Both subsections of Rule 6(d) are implicated in this
appeal. Rule 6(d)(1) provides: “The following persons may
be present while the grand jury is in session: attorneys for the
government, the witness being questioned, interpreters when
needed, and a court reporter or an operator of a recording
device.” Rule 6(d)(2) provides that “[n]o person other than the
jurors, and any interpreter needed to assist a hearing-impaired
or speech-impaired juror, may be present while the grand jury
is deliberating or voting.”

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could be cured through the issuance of a valid superseding
indictment returned by an untainted grand jury. The court then
concluded that the superseding indictment in this case was not
time-barred, was therefore “valid,” and thus cured any error in
the original grand jury proceedings.3 Alexander timely
appealed from the order denying the motions to dismiss.
II.
The District Court had jurisdiction under 18 U.S.C. §
3231 and 48 U.S.C. § 1612(a). Our jurisdiction is disputed.
We have an independent obligation to ascertain whether we
have jurisdiction, and our “review” of this threshold question
is plenary. See United States v. Wright, 776 F.3d 134, 139 (3d
Cir. 2015).
Typically, the statutory basis for our jurisdiction over
appeals taken by criminal defendants is 28 U.S.C. § 1291,
which permits the courts of appeals to review the “final
decisions” of federal district courts. Wright, 776 F.3d at 140.
In criminal cases, “[t]his ‘final judgment’ rule ordinarily
‘prohibits appellate review until conviction and imposition of
sentence.’” Id. (quoting Flanagan v. United States, 465 U.S.
259, 263 (1984)). Alexander has not been convicted or
sentenced, and the interlocutory order she appeals from is
concededly not a final judgment.
Nevertheless, Alexander argues we have jurisdiction
over her appeal under the collateral order doctrine, an
3 In this Court, the Government has advised “that it will
not proceed to trial on the original indictment,” and will instead
proceed only on the superseding indictment. Gov’t Br. 8.

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exception to the final judgment rule that permits interlocutory
review by this Court in a narrow range of situations. See
Cohen, 337 U.S. at 545-47. To be eligible for immediate
appellate review under the collateral order doctrine, a district
court order 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.” Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468 (1978).
Alexander’s briefing largely focuses on the third
condition of the collateral order doctrine, that the order in
question be “effectively unreviewable.” She makes two
arguments that the District Court’s order will be unreviewable
following conviction. First, she notes that insofar as the grand
jury defect here violated Federal Rule of Criminal Procedure
6(d), the Supreme Court has held that a guilty verdict at trial
renders any Rule 6(d) violation harmless. See United States v.
Mechanik, 475 U.S. 66, 70 (1986). Alexander argues that
because her motion will necessarily be disposed of one way or
another by a jury verdict — denied if she is convicted, mooted
if she is acquitted — it will be “effectively unreviewable”
following final judgment. See id. at 81 n.1 (Marshall, J.,
dissenting) (suggesting that as a result of the Mechanik
decision, the denial of a Rule 6(d) motion “could conceivably”
satisfy the collateral order doctrine). Second, Alexander
argues that the Grand Jury Clause provides her a right not to be
tried except pursuant to an indictment, and that a “right not to
be tried” satisfies the collateral order doctrine’s “effectively
unreviewable” requirement. She asserts that the grand jury
defect here is so fundamental “as to render the original grand
jury and its indictment void” and, in effect, not an indictment.
Alexander Br. 17. We consider these arguments in turn.

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A.
In Mechanik, the defendants learned during trial that
two Government witnesses had appeared and testified together
before the grand jury. 475 U.S. at 67-68. They argued that this
tandem testimony violated Federal Rule of Criminal Procedure
6(d) and moved to dismiss the indictment on this basis. Id. at
68. The trial judge reserved decision on the motion to dismiss
until the conclusion of trial. Id.
The Supreme Court assumed that this simultaneous
testimony violated Rule 6(d) and that any prejudice arising
therefrom would have justified dismissing at least some
portion of the indictment had the issue been raised prior to trial.
Id. at 69-70. The Court held, however, that the petit jury’s
guilty verdict rendered “any error in the grand jury proceeding
connected with the charging decision . . . harmless beyond a
reasonable doubt.” Id. at 70. The Court reasoned that Rule
6(d) “protects against the danger that a defendant will be
required to defend against a charge for which there is no
probable cause to believe him guilty,” id. — that is, that the
presence of unauthorized individuals before the grand jury will
lead the grand jury to make charging decisions unsupported by
probable cause. But as the Court observed, “the petit jury’s
subsequent guilty verdict means not only that there was
probable cause to believe that the defendants were guilty as
charged, but also that they are in fact guilty as charged beyond
a reasonable doubt.” Id. Because the trial outcome showed
that there was probable cause to believe the defendants were
guilty, any error in the grand jury’s charging decision was
harmless. Id.

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Alexander may well be correct that, under Mechanik,
the pre-trial denial of a Rule 6(d) motion is effectively
unreviewable after trial. This Court has held that violations of
the grand jury secrecy provisions in Rule 6(e)4 are not
immediately appealable. In so doing, we have repeatedly
distinguished between violations of Rule 6(d) and Rule 6(e),
on the assumption that the former are not reviewable following
trial. See United States v. Johns, 858 F.2d 154, 157-59 (3d Cir.
1988) (holding that denial of a motion to dismiss based on Rule
6(e) violations was not immediately appealable under
Mechanik because “the distinction between assertions of error
that concern Rule 6(d) and assertions of error that concern Rule
6(e) . . . does suggest a different outcome in the determination
of interlocutory review”); see also United States v. Fisher, 871
F.2d 444, 448 (3d Cir. 1989) (“[W]here the grand jury abuse
charged involves claimed violations of a defendant’s right to
fundamental fairness, as distinct from mere technical
violations such as a 6(d) violation, such issues . . . survive the
final judgment and are reviewable on appeal from a final
judgment.”).
If Alexander is correct, however, then her appeal fails
to satisfy the second condition of the collateral order doctrine:
the requirement that the disputed order “resolve an important
issue completely separate from the merits.” Coopers &
Lybrand, 437 U.S. at 468. This conclusion is compelled by the
Supreme Court’s decision in Midland Asphalt Corp. v. United
States, 489 U.S. 794 (1989). In Midland, the Court held that
4 The secrecy provisions of Rule 6(e) are voluminous.
In short, they obligate participants in grand jury proceedings
not to disclose anything occurring before the grand jury to
anyone else, save for certain enumerated exceptions.

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an order denying a motion to dismiss an indictment for
violations of Rule 6(e)’s secrecy provisions does not satisfy the
collateral order doctrine. Id. at 799. The defendant there
argued that, under Mechanik, Rule 6(e) violations were
“effectively unreviewable” following trial. If this were true,
the Court reasoned, it would be because Rule 6(e) and Rule
6(d) have the same purpose: to protect defendants from being
charged without probable cause, a danger which “has
demonstrably been avoided whenever there is a guilty verdict
at trial.” Id. at 800. The Court then observed that if Rule 6(e)
violations are mooted by guilty verdicts because the Rule’s
purpose is to prevent indictment without probable cause, it
follows that orders denying motions to dismiss premised on
violations of Rule 6(e) “cannot be said to ‘resolve an important
issue completely separate from the merits of the action,’ but
rather involve ‘considerations enmeshed in the merits of the
dispute,’ and would ‘affect . . . or be affected by’ the decision
on the merits of the case.” Id. (citations omitted).
The same must be true of Rule 6(d). Under Midland, a
Rule 6(d) violation is not an issue “completely separate from
the merits” for the same reason that a conviction renders a Rule
6(d) violation harmless beyond a reasonable doubt: both the
grand jury’s decision to indict and the petit jury’s decision to
convict turn on the sufficiency of the evidence, an issue
“enmeshed in the merits.” Id. Insofar as Alexander challenges
the denial of her Rule 6(d) motion, then, her appeal does not
satisfy the second condition of the collateral order doctrine.
B.
Alexander is correct that deprivation of a right not to be
tried satisfies the third condition of the collateral order doctrine

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and that the Grand Jury Clause “does indeed confer a right not
to be tried . . . when there is no grand jury indictment.” Id. at
800-02.5 But not every error in grand jury proceedings
implicates this right not to be tried. Rather, “[o]nly a defect so
fundamental that it causes the grand jury no longer to be a
grand jury, or the indictment no longer to be an indictment,
gives rise to the constitutional right not to be tried.” Id. at 802.
We have previously observed that since Midland, very
few federal appellate decisions have identified grand-jury
errors that supported interlocutory jurisdiction. Wright, 776
F.3d at 145. In Wright, we followed the Court of Appeals for
the Tenth Circuit, which “in a thorough treatment of the
subject, limit[ed] jurisdiction under Midland [] to review of
‘technical challenge[s] to the existence of an indictment,’ such
as where the defendant may have been indicted by an
insufficient number of grand jurors.” Id. (quoting United
States v. Tucker, 745 F.3d 1054, 1069 (10th Cir. 2014)). In
Tucker, the Court of Appeals for the Tenth Circuit contrasted
such a technical challenge, which was immediately reviewable,
with “a substantive challenge to an indictment’s legal
propriety,” which was not. 745 F.3d at 1069. In Wright, we
similarly concluded that an alleged constructive amendment of
5 In Alexander’s case, there are two grand jury
indictments. The superseding indictment was returned without
any alleged errors in the grand jury proceedings. Although
Alexander argues that the District Court erred in rejecting her
argument that the superseding indictment was returned outside
the statute of limitations, we have observed that “denials of
motions to dismiss on statute of limitations grounds fail to
fulfill in large part the three Cohen criteria.” United States v.
Levine, 658 F.2d 113, 129 (3d Cir. 1981).

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an indictment was not a “technical or procedural violation that
would cause ‘the indictment no longer to be an indictment,’”
and held that a challenge to an alleged constructive amendment
was not immediately appealable. 776 F.3d at 145 (quoting
Midland, 489 U.S. at 802).
The grand jury defect Alexander challenges goes to the
legal propriety of the original indictment and is not “so
fundamental that it cause[d] the grand jury no longer to be a
grand jury, or the indictment no longer to be an indictment.”
Midland, 489 U.S. at 802. As discussed supra, the danger in
having unauthorized persons participate in grand jury
proceedings is that they will bias the jury and cause it to indict
without probable cause. To succeed on a challenge to such an
error, Alexander would likely have to show “that the violation
substantially influenced the grand jury’s decision to indict,” or
that there was “grave doubt” to that effect. Bank of N.S. v.
United States, 487 U.S. 250, 256 (1988). Alexander’s is a
substantive challenge implicating the merits of the
Government’s case. It is not a challenge to the technical
validity of the indictment, such as a challenge based on having
insufficient votes to indict, Tucker, 745 F.3d at 1068, or on the
grand jury’s having “served beyond the time it was validly
authorized to sit,” United States v. Gillespie, 666 F. Supp.
1137, 1137 (N.D. Ill. 1987).6
6 This Court has at times characterized violations of
Rule 6(d), which prohibits unauthorized persons from
participating in grand jury proceedings, as “technical.” See,
e.g., Fisher, 871 F.2d at 448; Johns, 858 F.2d at 159. Those
cases, however, did not concern whether the grand jury’s
activity was ultra vires, which is how this Court in Wright and

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In the absence of applicable authority that supports her
position, Alexander analogizes to cases where the bias or
personal interests of judges or petit jurors required new trials
to be granted or convictions to be reversed. She argues that
such cases compel the conclusion that “the conduct by the
Government here is so contrary to the fundamental concept of
justice as to render the original grand jury and its indictment
void.” Alexander Br. 17. We are not persuaded. While the
principle that “no man can be a judge in his own case,” id. at
18 (quoting In re Murchison, 349 U.S. 133, 136 (1955))
certainly resonates on the disturbing facts of this appeal, the
cases marshalled by Alexander do not support the conclusion
that the defect here was “so fundamental that it cause[d] the
grand jury no longer to be a grand jury.” Midland, 489 U.S. at
802. The cases have little relation to any right not to be tried.
Nor do they suggest that the proceedings in question were
“technically” invalid in the sense used by the Wright and
Tucker decisions — that is, ultra vires or with some other
constitutive defect. For example, in United States v. Poole,
450 F.2d 1082 (3d Cir. 1971) (cited at Alexander Br. 17), we
ordered a new trial where a defendant convicted of bank
robbery was not allowed to ask potential jurors — including a
bank teller and the spouse of a bank teller — if they or their
families had ever been victims of robbery. Id. at 1082-84. The
issue of potential juror bias in Poole was one of legal propriety,
not technical validity — one would not say that the original
trial in Poole “was not a trial” or was otherwise technically
invalid.
the Court of Appeals for the Tenth Circuit in Tucker used the
phrase “technical challenge.”

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Accordingly, Alexander’s claim does not implicate the
right not to be tried under the Grand Jury Clause. Any
surviving claims of grand jury error can be reviewed following
trial. Alexander’s argument thus fails on the third condition of
the collateral order doctrine.
* * * * *
The interlocutory order challenged by Alexander does
not “resolve an important issue completely separate from the
merits” and is not “effectively unreviewable on appeal from a
final judgment.” Coopers & Lybrand, 437 U.S. at 468. It is
thus not eligible for immediate appellate review under the
collateral order doctrine.
III.
For the foregoing reasons, we will dismiss Alexander’s
appeal for lack of jurisdiction.

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