USA v. John Melton

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12549
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN DAVID MELTON,
a.k.a. David Melton,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:20-cr-00081-RSB-BKE-4
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2 Opinion of the Court 23-12549
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Before J ILL PRYOR , B RANCH, and L AGOA , Circuit Judges.
PER CURIAM:
John David Melton appeals from the district court’s order
denying his motion to dismiss the indictment based on challenges
to a standing order regarding grand jury procedures utilized during
the COVID-19 pandemic. In his motion, Melton argued that the
standing order violated his Fifth Amendment right to a grand jury
and Federal Rule of Criminal Procedure 6 because it did not ensure
grand jury secrecy, improperly permitted videoconferencing, and
resulted in less than a quorum of the grand jurors being present in
the same room. The government moves to dismiss this appeal for
lack of jurisdiction, arguing that the district court’s order is not ap-
pealable under the collateral order doctrine.
We conclude that the district court’s order is neither final
nor immediately appealable. See 28 U.S.C. § 1291. The order is not
final because Melton has yet to be convicted or sentenced. See
Flanagan v. United States, 465 U.S. 259, 263 (1984). And it is not ap-
pealable under the collateral order doctrine because it does not in-
volve a right not to be tried, which means it can be effectively re-
viewed on appeal from a final judgment. See United States v. Shal-
houb, 855 F.3d 1255, 1260 (11th Cir. 2017); Midland Asphalt Corp. v.
United States, 489 U.S. 794, 800, 802 (1989) (stating that, to be effec-
tively unreviewable on appeal from a final judgment, an order
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23-12549 Opinion of the Court 3
must deprive a defendant not of the right not to be convicted, but
of the right “not to be tried at all”).
To the extent Melton argued that the standing order failed
to ensure grand jury secrecy, that alleged violation does not impli-
cate a right not to be tried because it is not “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.” See Midland Asphalt
Corp., 489 U.S. at 802. Additionally, we recently held that to the
extent the same standing order at issue here violated Rule 6, that
violation is not a “fundamental error” that “change[s] the basic na-
ture of [the] grand jury or fatally infect[s] [the] indictment.” See
United States v. Graham, 80 F.4th 1314, 1317-18 (11th Cir. 2023).
The district court’s order is therefore not appealable at this
time, under the collateral order doctrine or otherwise. The gov-
ernment’s motion to dismiss is GRANTED and this appeal is
DISMISSED.
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