                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                               Nos. 10-3974 & 11-1006
                                    ___________

                          UNITED STATES OF AMERICA,
                                             Appellant at No. 10-3974

                                           v.

                                 JOSEPH W. NAGLE
                                    ___________


                     IN RE: UNITED STATES OF AMERICA,
                                               Petitioner at No. 11-1066
                           _______________________

                   On Appeal from the United States District Court
                        for the Middle District of Pennsylvania;
               On Petition for a Writ of Prohibition or Mandamus to the
          United States District Court for the Middle District of Pennsylvania
                          D.C. Criminal No. 09-cr-00384-001
                              (Honorable Sylvia H. Rambo)
                                   ______________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   May 26, 2011

       Before: McKEE, Chief Judge, SCIRICA and RENDELL, Circuit Judges.

                               (Filed : August 17, 2011)

                                 _________________

                             OPINION OF THE COURT
                                _________________

SCIRICA, Circuit Judge.
      Joseph W. Nagle was charged with defrauding the United States Department of

Transportation (USDOT) by falsely portraying his business, Schuylkill Products, Inc.

(SPI), as subcontracting work to a Disadvantaged Business Enterprise (DBE). The

District Court granted Nagle’s motion to compel his uncle and co-owner, Ernest G. Fink,

Jr., to testify and conferred judicial immunity upon Fink’s testimony. The government

immediately appealed the court’s immunity order and filed a Petition for Writ of

Prohibition or Mandamus to prohibit the court from enforcing its order conferring judicial

immunity on Fink. We will dismiss the government’s interlocutory appeal for lack of

jurisdiction and deny the government’s Petition.

                                            I.

      For about thirty years, Fink and his brother-in-law, Gordon Nagle, were co-owners

of SPI, a closely held company that manufactured concrete beams primarily used for

highway construction. Between 1984 and 2002, Gordon’s son, Joseph, held various

managerial positions within the company. When Gordon Nagle died in 2004, Joseph

became CEO, President, director, and majority-owner of SPI, owning just over half of

SPI shares. Fink had worked for SPI since 1970. By 2004, he was Vice President and

COO of SPI and owned the remaining shares of the company. In 2009, Nagle and Fink

sold SPI to Northeast Prestressed Products, LLC. SPI no longer operates.

      Federal statutes and regulations require USDOT to ensure at least 10% of funds

authorized for various construction projects be expended with DBEs. See Surface

Transportation Assistance Act of 1982, Pub. L. No. 97-424, § 105(f), 96 Stat. 2097

                                            2
(1983). 1 DBE funds may be awarded (1) directly to DBEs; (2) to general contractors who

subcontract work directly to DBEs; or (3) to general contractors who subcontract work to

companies who, in turn, subcontract work to DBEs. SPI was not certified as a DBE.

       The government alleges Fink (between 1992 and 2008) and Nagle (between 2004

and 2008), along with co-conspirators, set up a front company, the Marikina Construction

Corporation (MCC), that “did not perform a commercially useful function.” Fink and

Nagle had MCC certified as a DBE to which SPI “subcontracted” work. They then

represented SPI as a vehicle by which general contractors subcontracting work to SPI

could obtain federal funds earmarked for projects involving DBE subcontractors. By

representing the front company as a DBE that could earn general contractors millions of

dollars in DBE credits, the government alleges Fink and Nagle “fraudulently obtain[ed]”

subcontracting work for SPI on hundreds of projects.

       In a thirty-two count indictment, Nagle and Fink were charged with (1) conspiracy

to defraud USDOT in the implementation, execution, and administration of its DBE

program and to commit wire and mail fraud in violation of 18 U.S.C. § 371; (2) wire

fraud in violation of 18 U.S.C. § 1343; (3) mail fraud in violation of 18 U.S.C. § 1341;

(4) conspiracy to commit unlawful monetary transactions in violation of 18 U.S.C. §



1
  49 C.F.R. § 26.5 defines a DBE as “a for-profit small business concern—(1) That is at
least 51 percent owned by one or more individuals who are both socially and
economically disadvantaged or, in the case of a corporation, in which 51 percent of the
stock is owned by one or more such individuals; and (2) Whose management and daily
business operations are controlled by one or more of the socially and economically
disadvantaged individuals who own it.” For purposes of this regulation, “socially and
                                             3
1956(h); (5) engaging in monetary transactions in criminally derived property of a value

greater than $10,000, in violation of 18 U.S.C. § 1957; and (6) asset forfeiture under 18

U.S.C. §§ 981(a)(1)(C) and 982, and 28 U.S.C. § 2461. Fink pleaded guilty to conspiracy

to defraud USDOT, and the government dismissed the remaining charges against him.

       Nagle contends Fink excluded him from the day-to-day operation of the company,

and that he did not learn of any conspiracy until late 2007. At trial, Nagle wanted to call

Fink to testify that Nagle “was unwanted, unwelcomed, and excluded” in SPI’s

operations, did not knowingly join any conspiracy being perpetrated by Fink and co-

conspirators, and even tried to end any fraudulent activities and fire employees engaging

in illegal behavior. Nagle subpoenaed Fink, and Fink replied he would invoke his Fifth

Amendment privilege against self-incrimination rather than testify. The government

denied Nagle’s request that Fink be conferred “use immunity” under 18 U.S.C. § 6002,

on the grounds it did not know what Fink would say and did not want to grant him an

“immunity bath” for any crimes he may have committed.

       Nagle then filed a motion to compel Fink’s compliance with the subpoena. On

October 4, 2010, the District Court granted Nagle’s motion and ordered Fink’s

“testimony [to] be given under the protection of judicial immunity from prosecution.”

The government immediately filed an interlocutory appeal regarding the immunity order,

and the court stayed Nagle’s trial pending resolution of the appeal. On December 30,




economically disadvantaged” individuals may include a variety of racial and ethnic
minorities, as well as women. See 15 U.S.C. § 637(d).
                                             4
2010, the government filed a Petition for Writ of Prohibition or Mandamus that would

prohibit the court from enforcing its order conferring judicial immunity on Fink. 2, 3

                                              II.

       Nagle contends we do not have jurisdiction over the government’s interlocutory

appeal. We do not usually have jurisdiction over interlocutory appeals because 28 U.S.C.

§ 1291 limits our jurisdiction to “final decisions of the district court[]” that “end[] the

litigation on the merits and leave[] nothing for the court to do but execute judgment.”

Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275 (1988) (internal

quotations marks omitted). Moreover, the government does not argue any statute has

conferred jurisdiction upon this court to hear this particular appeal. Rather, the

government relies upon the collateral order doctrine. This doctrine

       considers as final judgments, even though they do not end the litigation on
       the merits, decisions which 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. To fall within
       the limited class of final collateral orders, an 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.




2
  While Writs of Prohibition and Writs of Mandamus are “somewhat different,” United
States v. Santtini, 963 F.2d 585, 593 (3d Cir. 1992), “modern courts have shown little
concern for the technical and historical difference between the two writs,” id. (internal
quotation marks omitted). Therefore, the government “need not precisely state which writ
[it] seeks.” Id.
3
  On February 17, 2011, this Court ordered the government’s appeal referred to the panel
hearing the government’s Petition.
                                               5
Midland Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989) (citations and internal

quotation marks omitted). We interpret the collateral order doctrine “with the utmost

strictness in criminal cases,” id. at 799, “because of the need to effectively and efficiently

conclude criminal proceedings, without piecemeal interruptions,” United States v.

Williams, 413 F.3d 347, 355 (3d Cir. 2005) (internal quotation marks omitted).

       Nagle contends the court’s immunity order did not “resolve an . . . issue

completely separate from the merits.” We confronted a similar issue in United States v.

Santtini, 963 F.2d 585 (3d Cir. 1992). In that case, the district court ordered law

enforcement agents to refrain from arresting a co-conspirator if he arrived at a deposition

sought by defendants. We concluded we did not have jurisdiction to hear the

government’s interlocutory appeal of the court’s order because “the propriety of an order

which rests on a decision that a witness is central to the defense is not one which is

completely separate from the underlying merits of the case.” 963 F.2d at 592 (internal

quotation marks omitted).

       The government attempts to distinguish Santtini on the ground that the protected

individual in that case claimed an ability to exonerate the defendants. Not only does Fink

not wish to testify, but no one knows the content of his testimony, nor whether it will

exculpate Nagle. However, we did not find in Santtini that the protected individual’s

testimony would exonerate the defendants. Rather, there—as is the case here—the district

court ordered immunity because it concluded the protected individual’s testimony was



                                              6
central to the defense. This decision is not “completely separate from the merits of the

action,” and is not subject to interlocutory appeal.

                                             III.

       The government also filed a Petition for Writ of Prohibition or Mandamus that

would prohibit the District Court from enforcing its order conferring immunity pursuant

to its inherent authority. The federal appellate courts have power under the All Writs Act,

28 U.S.C. § 1651, to issue these writs “in exceptional cases where the traditional bases

for jurisdiction do not apply.” In re Pasquarello, 16 F.3d 525, 528 (3d Cir. 1994). For

these writs to issue, the government must show “a right to the writ that is clear and

indisputable,” In re Briscoe, 448 F.3d 201, 212 (3d Cir. 2006) (internal quotation marks

omitted), by demonstrating the district court committed a “clear abuse of discretion” or a

“clear error of law,” United States v. Wexler, 31 F.3d 117, 128 (3d Cir. 1994) (internal

quotation marks omitted). Moreover, “appeals by the Government in criminal cases are

something unusual, exceptional, not favored, at least in part because they always threaten

to offend the policies behind the double-jeopardy prohibition. . . . Mandamus . . . may

never be employed as a substitute for appeal in derogation of these clear policies.” Will v.

United States, 389 U.S. 90, 96-97 (1967).

       In relying on the standard set forth in Government of the Virgin Islands v. Smith,

615 F.2d 964, 969-74 (3d Cir. 1980), to determine it possessed inherent authority to

confer judicial immunity upon Fink, the District Court neither committed clear legal error

nor clearly abused its discretion. Because the government cannot satisfy its burden of

                                              7
demonstrating a “clear and indisputable” right to either writ, such extraordinary relief is

not appropriate in these circumstances.

                                            IV.

       For the foregoing reasons, we will dismiss the government’s interlocutory appeal

and deny its Petition for Writ of Prohibition or Mandamus.




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