United States v. David L. Harris

ORDER

This is an appeal from the denial of a motion to dismiss an indictment for violation of Fed.R.Crim.P. 6(e)(2). We have held that such an order is reviewable prior to final judgment under the collateral order doctrine when the claimed violation is aimed at the grand jury’s charging process. United States v. Benjamin, 812 F.2d 548 (9th Cir.1987). See also United States v. Dederich, 825 F.2d 1317 (9th Cir.1987).

Before appellant’s opening brief was due, the government filed a motion for summary affirmance, or in the alternative to expedite the appeal. The government’s motion for summary affirmance is based upon its own memorandum and an excerpt of record which it has prepared. This court has not yet seen the issues which the appellant wishes to raise in the form in which the appellant wishes us to review them.

Ninth Circuit Rules 27-3 and 27-4 permit motions for summary affirmance in criminal interlocutory appeals to be handled on an expedited basis. Our summary procedure is borrowed from Supreme Court practice; we have made it clear that motions to affirm should be made “only after the appellant’s brief is on file and only where ... the insubstantiality of the questions…