United States v. Carter

995 F.3d 1222

UNITED STATES of America, Plaintiff - Appellant,

v.Karl CARTER, Defendant.

Federal Public Defender, Movant - Appellee.

No. 20-3042

United States Court of Appeals, Tenth Circuit.

FILED May 4, 2021

William A. Glaser, Attorney, U.S. Department of Justice, Washington, D.C. (Stephen R. McAllister, United States Attorney, District of Kansas; Steven D. Clymer, Special United States Attorney, Brian A. Benczkowski, Assistant Attorney General; Brian C. Babbitt, Acting Assistant Attorney General; and Robert A. Zink, Acting Deputy Assistant Attorney General with him on the briefs), on behalf of the Plaintiff-Appellant.

Melody Brannon, Federal Public Defender (Paige A. Nichols, Assistant Federal Public Defender with her on the briefs), Kansas Federal Public Defender, Topeka, Kansas, on behalf of the Movant-Appellee.

Before TYMKOVICH, BALDOCK, and BACHARACH, Circuit Judges.

BACHARACH, Circuit Judge.

This appeal grew out of United States v. Black, et al. , which involved allegations of drug crimes committed at a detention facility. In the course of this prosecution, the United States Attorney's Office in Kansas (USAO) obtained video and phone call recordings from the detention facility. Some of the recordings involved attorney-client communications between detainees and their attorneys.

After learning that the USAO had these recordings, the Federal Public Defender (FPD) intervened for the defendants in 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.

When the investigation ended, the district court

• dismissed the indictment against the last remaining defendant in Black (Mr. Karl Carter) and

• ordered the USAO to provide the FPD with all of the recordings of attorney-client communications in the USAO's possession.

In the course of these rulings, however, the district court made statements adverse to the USAO and found contempt based partly on a failure to preserve evidence.

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 doesn't question the dismissal of Mr. Carter's indictment or the order to furnish the FPD with the recordings. Instead, the USAO argues that the investigation was unlawful, the district court made erroneous statements and findings about possible violations of the Sixth Amendment, the district court clearly erred in its contempt findings, and the district judge erred by stating that she would reassign herself to the post-conviction cases.

We dismiss the appeal for lack of jurisdiction and prudential ripeness.

I. The district court made adverse statements and findings that could potentially be applied in the 100+ post-conviction cases.

The district court appointed a Special Master, who conducted the investigation in three phases. In Phase I, he investigated whether recordings of attorney-client communications could be separated from other recordings. Having found separation feasible, the Special Master set out in Phase II to identify the recordings that had captured attorney-client communications. The probe intensified in Phase III as the Special Master addressed the USAO's role in obtaining and possibly using recordings of attorney-client conversations.

As Phase III continued, the USAO sought a writ of mandamus, urging us to halt the investigation as unlawful. Petition for a Writ of Mandamus, In re United States , No. 18-3007 (10th Cir. Jan. 16, 2018). We narrowed the scope of the investigation to the parties prosecuted in Black and "other parties ... who [had] filed Rule 41(g) motions in that proceeding," but otherwise allowed Phase III to continue. Order, In re United States , No. 18-3007 (10th Cir. Feb. 26, 2018). The investigation 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. Joint App'x vol. 5, at 1153–54, 1157.

These comments reflected three general statements about possible violations of the Sixth Amendment:

1. The USAO had engaged in a "pattern of misconduct" by possessing, retaining, and possibly using recordings of attorney-client communications. Id. at 1155; see also id. at 1150.

2. Many detainees had not waived the attorney-client privilege. Id. at 1139.

3. Intrusion into privileged communications could justify a remedy without a showing of prejudice. Id. at 1124.

The district court also cited the USAO for contempt for

• intentionally violating a "duty to preserve evidence surrounding [its] practice of requesting and obtaining audio and video recordings" of attorney-client communications,

• violating clawback orders, and

• violating an order to cooperate with the Special Master, including failing to cooperate with his production requests.

Id. at 1102–06, 1108–09, 1111–13. Despite these findings, the district court did not impose any sanctions.

The government urges vacatur of the order in Black based on the potential effect on the 100+ post-conviction cases.

II. The district court's adverse statements and contempt findings don't trigger jurisdiction or create a prudentially ripe dispute.

The USAO partially prevailed in district court by avoiding sanctions, and the FPD partially prevailed by obtaining an order requiring return of the recordings and dismissal of Mr. Carter's indictment. But the USAO did not object to these rulings or appeal them. The USAO instead asks us only to vacate the district court's adverse statements and contempt findings on the ground that they could bolster the 100+ post-conviction claims.

A. The USAO has not shown a live case or controversy.

As the appellant, the USAO must "establish[ ] our appellate jurisdiction." United States v. Solco I, LLC , 962 F.3d 1244, 1249 (10th Cir. 2020) (quoting Estate of Ceballos v. Husk , 919 F.3d 1204, 1224 (10th Cir. 2019) ). Appellate jurisdiction generally exists only if the appellant was "aggrieved" by the district court's judgment or order. Jarvis v. Nobel/Sysco Food Servs. Co. , 985 F.2d 1419, 1425 (10th Cir. 1993) (quoting Deposit Guar. Nat. Bank, Jackson, Miss. v. Roper , 445 U.S. 326, 334, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980) ).

Prevailing parties are usually not considered "aggrieved." But sometimes a prevailing party can appeal "from an adverse ruling collateral to the judgment on the merits ... so long as that party retains a stake in the appeal satisfying the requirements of Art[icle] III." Id. (quoting Roper , 445 U.S. at 333–34, 100 S.Ct. 1166 ). A stake can arise from collateral rulings when three elements exist: (1) the prevailing party has suffered an "injury in fact," (2) the collateral ruling caused the injury, and (3) the injury is redressable. Camreta v. Greene , 563 U.S. 692, 701, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011).

The injury in fact must be "actual or imminent, not ‘conjectural’ or ‘hypothetical.’ " Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Whitmore v. Arkansas , 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) ).

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. We disagree.

1. Appellate relief would not affect the future application of issue preclusion.

If a successful appeal would affect "the future application of issue preclusion, ... the personal stake requirement of Article III [would be] met." Jarvis v. Nobel/Sysco Food Servs. Co., 985 F.2d 1419, 1425 (10th Cir. 1993) (citing Roper , 445 U.S. at 335–36, 100 S.Ct. 1166, & Elec. Fittings Corp. v. Thomas & Betts Co ., 307 U.S. 241, 59 S.Ct. 860, 83 L.Ed. 1263 (1939) ).¹ The USAO thus urges an injury in fact based on the possibility that the district court's statements and findings could affect the 100+ post-conviction cases.

Issue preclusion would not apply against the USAO. See United States v. Mendoza , 464 U.S. 154, 162, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984) ("nonmutual offensive collateral estoppel simply does not apply against the government in such a way as to preclude relitigation of issues"). The USAO nonetheless argues that the district court said that it intended to incorporate the statements and contempt findings in the post-conviction rulings. For example, the district court stated:

[T]he Court can narrow the inquiries required in each related § 2255 case because these petitioners all seek similar relief for similar types of intrusions .... These issues include, inter alia: (1) the elements required to prove a per se violation of the Sixth Amendment under Tenth Circuit law; (2) whether soundless video recordings constitute protected attorney-client communications; (3) whether the "preamble language" that played [before] ... telephone calls constituted a waiver of the attorney-client privilege; and (4) whether the government had a legitimate law enforcement purpose when it procured the recordings at issue in this case .... Likewise, the USAO's delay and obfuscation in the Special Master's investigation will weigh in fashioning an appropriate remedy into the § 2255 cases.

Joint App'x vol. 5, at 976–77.

But the district court isn't bound by its statements of intent. See Camreta , 563 U.S. at 709 n.7, 131 S.Ct. 2020 (stating that a district judge's determinations do not bind even herself). And to the extent that the district court does rely on the statements and findings in the post-conviction rulings, the USAO can appeal those rulings.

Statements about potential violations of the Sixth Amendment. The district court's...