No Pretrial Appeal for Massachusetts Judge Who Allegedly Helped an Arrestee Evade Immigration Officials

Start at U.S. v. JosephThe First Circuit (Judge William Kayatta and Judges Sandra Lynch, Rogeriee Thompson) decided that the matter was a no contest.

The defendants declare that they believe the charges against the government as presented in the indictment. These claims outline the following account of events.A.S. was the name given by the parties to the arrest of A.S., an undocumented alien immigrant on April 2, 2018.

On April 2, 2018, Judge Joseph presided over the arraignment of an undocumented immigrant referred to by the parties as A.S. {[which stands for ‘alien subject’}. A.S. had been fingerprinted upon his arrest by police in 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. 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.

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-over- the-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. Both defendants moved to dismiss these charges. Judge Joseph argued that the doctrine of judicial immunity shields her from criminal 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….

As a general rule, federal courts of appeal may exercise appellate jurisdiction only over final decisions. “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.'”

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.”


The collateral order doctrine is a narrow exception, which the Supreme Court “ha[s] interpreted … ‘with the utmost strictness’ in criminal cases.” A collateral order is one that “concludes the question in dispute”, (2) resolves an important issue entirely apart from the merits of the action and (3) does not allow for appeals from final judgements.

For our purposes, we need only train our attention on the third requirement—that the order in question cannot effectively be reviewed at the end of the case. To date, the Supreme Court has identified four kinds of orders that meet this requirement and can be used as collateral orders in criminal cases: Orders denying motions for bail reduction; Orders denying motions dismissing an indictment on double Jeopardy Grounds; Orders denying a motion dismiss an Indictment Under Constitution’s Speech or Debate Clauses; And orders permitting involuntary medical treatment to make a defendant competent to stand trial.

Each of these cases is exemplary. [the]Third requirement satisfied, because protected rights, such as freedom from excessive bail and a guarantee that the defendant will not be tried, protection against forced medication, would have been lost if they were not reaffirmed before final judgement was entered. A post-judgment appeal is therefore impossible.

So in this case, we ask whether either defendant asserts a right that would effectively be lost by proceeding to trial….

Judge Joseph has a primary reason to challenge the indictment. She claims she is an ex-state district judge and therefore immune from the federal prosecution of the conduct that was alleged in her indictment. According to Judge Joseph, this immunity shields her from not only prosecution but also conviction. If her immunity defense is not defended after the trial, she argues, she may lose some of that protection.


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…. [S]You are so kind!

The right must not “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]Any Speech, Debate or Speech in any House. [the Senators and Representatives]shall not be interrogated in any other place ‘).” 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…. “[A]ny

If a legal rule is not followed, it can give rise to the ‘right to not be tried’. …. The Court did not allow interlocutory appeals of “rights not tried” to be limited to statutes or Constitutions that explicitly state them. This allowed the Court to avoid interpreting an exception as if it were a rule. The Supreme Court’s “interpret” practice, in which the defense must rely on a specific statutory or constitutional grant immunity from trial, aligns this requirement with its own.[ing]Collateral order exception “with the greatest strictness” in criminal cases …

Judge Joseph … invokes the Supreme Court’s holding in Mitchell v. ForsythThe denial of any substantial claim to absolute immunity can be appealed before final judgement. However MitchellIt was a civil case, so the criminal rules did not apply. Midland AsphaltFour years later, the decision was made. MitchellThis criminal case is governed by the following: Judge Joseph can’t get interlocutory review for her judicial immunity defense, unless she can prove that her claim right to not be tried was explicitly grounded in the Constitution or a statute. She cannot prove that she can, but she admits she does not have any. Instead, she relies solely upon the common law. 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….

Interlocutory review is supported only by defendants’ assertion that the Tenth Amendment to US Constitution bar their prosecution. According to the Tenth Amendment, “The power not granted to the United States Constitution nor made prohibited to it by it to them to be prosecuted” is reserved for the States or the people. The Supreme Court has held that the amendment was not allowed to be used by the federal government to command state legislative and executive officials in order to carry out federal policies.

The defendants claim that their prosecution is a tool of “impermissible commandeering—an attempt to require state officers to help enforce federal immigration law.” … [But t]He indictment doesn’t allege Judge Joseph or Deputy MacGregor simply declined to enforce federal immigration laws. It claims that the defendants “affirmatively interfered” with federal officials trying to enforce federal law. We are therefore not persuaded that defendants’ Tenth Amendment theory “completely separate” from the facts of the allegations against them. The defendants’ Tenth Amendment theory doesn’t satisfy. Midland Asphalt‘s third prong….

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  federal immigration law. This defense is possible at trial. Any loss will be reviewed upon appeal.

It is true that Judge Joseph and Assistant MacGregor will have to face both the high costs of trial, and the intense anxiety associated with their participation in a federal case. We must acknowledge that all criminal defendants are subject to these adverse consequences. These adverse consequences cannot be used to justify interlocutory appeals unless they are permitted in most motions for dismissal in criminal cases.

The amici also recognize the concomitant twist to the commandering argument: That this prosecution will discourage other judges from refusing federal officials assistance, is something we acknowledge. But the facts alleged here—affirmative acts of deception and violations of several state policies—are largely sui generis. Additionally, anyone who is in a similar position to defendants may be chill by an overreaching or broad indictment. Interlocutory review would allow for many appeals of motions to dismiss. A result like this would directly contradict to Midland AsphaltInsistence by prosecutors that collateral order exceptions be strictly read in criminal cases.

For all of these reasons, the pretrial denial of the defendants’ motions to dismiss based on this Tenth Amendment, anti-commandeering defense falls short of satisfying the strict requirements for interlocutory review in a criminal case….

The theory that the indictment failed to state an offence is also not a subject of interlocutory appeal, even though Judge Joseph and Deputy MacGregor simply claim it. 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.”