Tenth Circuit Declines Appellate Jurisdiction to Review District Court’s Findings in Investigation of a U.S. Attorney’s Office

In United States v. Carter, No. 20-3042 (10th Cir. May 4, 2021), the Tenth Circuit holds that it lacks jurisdiction to review a district court’s investigation of recordings of attorney-client communications at a federal detention center, obtained by the United States Attorney’s Office in Kansas (USAO).

“After learning that the USAO had these recordings, the Federal Public Defender (FPD) intervened for the defendants in [United States v.] Black, who had been housed at the detention facility. After intervening, the FPD moved for return of the recordings containing attorney-client communications, invoking Rule 41(g) of the Federal Rules of Criminal Procedure. This motion spurred the district court to order an investigation into the USAO and its possession of the recordings.”

The district court appointed a special master who, in Phases I and II of the investigation, culled the problematic recordings. In Phase III, the investigation focused on “the USAO’s role in obtaining and possibly using recordings of attorney-client conversations.” Based on the investigation, the district court dismissed one indictment in Black and ordered production of the recordings to the court. “The investigation led over a hundred prisoners to file post-conviction motions, challenging their convictions or sentences based on alleged Sixth Amendment violations stemming from intrusions into attorney-client conversations.”

The USAO sought a writ of mandamus to halt Phase III of the investigation in 2018, which was substantially denied. The investigation eventually “culminated in an order, where the district judge commented on possible violations of the Sixth Amendment, found the USAO in contempt, and stated that she would reassign herself to the related post-conviction cases.” The district court found a “pattern of misconduct” and cited the USAO for contempt. The USAO again sought to appeal, but solely to vacate the district court’s findings.

The Tenth Circuit dismisses the appeal. The panel holds that because the USAO appealed only the judge’s findings, and not the substantive orders to dismiss the indictment and return the recordings, there was no live case or controversy to review.

“The USAO urges a stake in this appeal through injury from the district court’s statements and findings by causing (1) issue preclusion and (2) adverse effects in the post-conviction cases,” but the panel rejects both arguments. Concerning issue preclusion for the lower court’s findings, nonmutual offensive collateral estoppel cannot apply against the government. (If the district court did attempt to apply its filings in the post-conviction stage, the panel holds, the USAO could appeal those rulings.) Moreover, the findings of contempt were not binding on the post-conviction cases.

The panel also holds that the district court’s comments and contempt findings were never made part of an appealable judgment. “The Black judgment did not contain a final determination as to a violation of the Sixth Amendment or reassignment of the post-conviction cases.” Because the findings and other statements were not part of the judgment, the USAO lacked standing to appeal them.

It then holds that even if it had appellate jurisdiction “the appeal would remain prudentially unripe . . . . The USAO requests ‘blanket’ protection from us to prevent the use of certain statements and findings when the district court rules in the post-conviction cases. Consideration of this request is premature until the court rules in those cases. The USAO may ultimately prevail in those cases; and if the USAO doesn’t prevail, it can appeal the post-conviction rulings with a more fully developed record.”

Finally, the panel holds that any remaining challenges to the lawfulness of the Phase III investigation are moot. “[W]e could not grant effectual relief because Phase III is over. In that phase, the USAO produced some evidence and refused to produce other evidence; witnesses testified and were questioned. Nothing we say will change what took place in Phase III. Given our inability to affect the scope of an investigation that has finished, the USAO can no longer challenge the lawfulness of Phase III.”

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