In re Search of Elec. Commc'ns

• Citation: 802 F.3d 516
• Decision Date: 02 September 2015
• Docket Number: No. 14–3752.,14–3752.
• Parties: In the Matter of the SEARCH OF ELECTRONIC COMMUNICATIONS (Both Sent and Received) IN THE ACCOUNT OF CHAKAFATTAH@GMAIL.COM AT INTERNET SERVICE PROVIDER GOOGLE, INC. Chaka Fattah, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

802 F.3d 516

In the Matter of the SEARCH OF ELECTRONIC COMMUNICATIONS (Both Sent and Received) IN THE ACCOUNT OF CHAKAFATTAH@GMAIL.COM AT INTERNET SERVICE PROVIDER GOOGLE, INC. Chaka Fattah, Appellant.

No. 14–3752.

United States Court of Appeals, Third Circuit.

Argued: Jan. 12, 2015.

Opinion Filed: Sept. 2, 2015.

Luther E. Weaver III, Esq., Argued, Weaver & Associates, P.C., Philadelphia, PA, Attorneys for Appellant.

Kerry W. Kircher, Esq., Argued, United States House of Representatives, Washington, D.C., Amicus Attorney Appellant Bipartisan Legal Advisory Group of the United States House of Representatives.

Donald E. Wieand, Jr., Esq., Stevens & Lee, Bethlehem, PA, Amicus Attorney Appellant Google Inc.

Zane David Memeger, Esq., Jack Smith, Esq., Robert A. Zauzmer, Esq., Argued, Eric L. Gibson, Esq., Paul L. Gray, Esq., United States Attorney's Office for the Eastern District of Pennsylvania, Philadelphia, PA, Attorneys for Appellees.

Before: AMBRO, FUENTES, and ROTH, Circuit Judges.

OPINION OF THE COURT

FUENTES, Circuit Judge.

This case implicates the Speech or Debate Clause of the United States Constitution.¹ The Government obtained a search warrant to search the email account of Chaka Fattah, a United States Congressman. Fattah, along with the “Bipartisan Legal Advisory Group of the United States House of Representatives” (as amicus curiae ), challenged the unexecuted search warrant in the District Court primarily on Speech or Debate Clause grounds. Fattah now appeals the District Court's order denying his motion to invalidate the unexecuted search warrant. Because an unexecuted search warrant is not separate from the merits of the case and is reviewable on appeal, if a defendant is convicted, it does not qualify for review under the collateral order doctrine. Therefore, we lack jurisdiction to review this unexecuted search warrant and we dismiss Fattah's claims under the Speech or Debate Clause.

I. Factual and Procedural Background

A. The Search Warrant

Fattah is the subject of a federal grand jury investigation pending in the Eastern District of Pennsylvania.² The Department of Justice, the United States Attorney's Office for the Eastern District of Pennsylvania, the Federal Bureau of Investigation, and the Internal Revenue Service are leading the investigation, which centers on whether Fattah violated federal criminal laws relating to fraud, extortion, and bribery.

Fattah maintains an email account hosted by Google, Inc., known as “Gmail.” Google acts as a repository, collecting emails sent and received by Gmail account holders like Fattah. Fattah uses this Gmail account for personal matters, but he also uses it for official business relating to his congressional duties.³ For example, Fattah asserts that he uses his Gmail account to “communicat[e] with members of Congress regarding legislative matters”; to email “the schedule and agendas for House Committee meetings and related congressional sessions”; and to communicate “with [his] staff regarding legislative matters and discussions and documents directly relating to proposed legislative matters.”⁴ Likewise, Fattah claims that he uses his Gmail account to engage in privileged attorney-client communications with his legal counsel.

In February 2014, the Government served Fattah with a grand jury subpoena seeking various documents, including electronic data from his Gmail account. In response, Fattah turned over some emails but objected to others on the bases of the Speech or Debate Clause, overbreadth, and relevance. Several months later, a magistrate judge issued a search warrant authorizing the FBI to search Fattah's Gmail account. The warrant sought essentially the same information as the grand jury subpoena. Specifically, the search warrant requested: “For the period of January 1, 2008, through the present, concerning Google account [ChakaFattah@gmail.com], all items which constitute evidence of a criminal violation of 18 U.S.C. §§ 1343, 1344, 1951, and 201.”⁵

Pursuant to Google policy, Fattah received an email from Google on June 18, 2014, stating that it had received a search warrant from the Government seeking electronic data from his account. Google explained that it would withhold the documents for seven calendar days, allowing Fattah time to object to the request in a court of competent jurisdiction. Fattah filed a motion to intervene and to quash the search warrant in the Eastern District of Pennsylvania, arguing that the warrant's execution would violate the attorney-client privilege and work-product doctrine, the Fourth Amendment, and the Speech or Debate Clause.

B. The District Court Opinion

The District Court granted Fattah's motion to intervene but denied his motion to quash the search warrant. The Court held that the execution of the warrant would not imperil the attorney-client privilege or the protection afforded by the work-product doctrine because the Government had suggested adequate review procedures, which entailed the use of a “taint team” to review for privileged documents.

Fattah argued that the warrant and affidavit did not make out probable cause and that the warrant was general and overbroad. The Court disagreed and additionally noted the odd procedural posture of the case, observing that Fattah “ha[d] cited no reported decision” supporting his contention that he may raise a Fourth Amendment challenge to a warrant prior to its execution.⁶ The Court explained that the proper remedy for an improvident search warrant is a suppression hearing.

Likewise, the District Court rejected Fattah's argument that the warrant would violate the Speech or Debate Clause. The Court reiterated this Circuit's standard that the Speech or Debate Clause secures a privilege of non-use, rather than of non-disclosure. The Court explained that “even if [Fattah's] private emails include a number of privileged documents, the mere disclosure of those documents [would] not impugn the Speech or Debate Clause.”⁷

In the alternative to quashing the search warrant, the House requested that the Court modify the warrant and allow Fattah access to the requested records. Denying the House's request, the Court opined that “creating special protections for a Congressman's private email account would encourage corrupt legislators and their aides to make incriminating communications through private emails, knowing that they will be disclosed only with the author's approval.”⁸

Fattah also fashioned his motion as a Federal Rule of Criminal Procedure 41(g) motion, a request for return of property. Fattah argued that the Government was in “constructive possession” of his property. The District Court denied this motion as well, explaining that because the Government has neither actual nor constructive possession, Rule 41(g) affords him no legitimate basis for relief.

Following the District Court's rulings, Fattah filed a notice of appeal to this Court from the District Court's order denying the motion to quash the unexecuted search warrant. On the same day, Fattah filed a motion to stay the order pending appeal. The District Court held a hearing on the motion to stay and subsequently denied the motion. Thereafter, we granted Fattah's motion for a status quo order and for a stay of the District Court's order pending appeal.

II. Discussion

Although Fattah presents several issues on appeal, we limit our discussion solely to jurisdiction and the proposed filtering procedures. Fattah proffers three bases for appellate jurisdiction: (1) the collateral order doctrine, (2) the Perlman doctrine, and (3) Federal Rule of Criminal Procedure 41(g). For the reasons that follow, we conclude that we lack jurisdiction to consider Fattah's Speech or Debate Clause claims, but take jurisdiction with respect to his claims regarding the filtering procedures.⁹

A. The Collateral Order Doctrine

Fattah first contends that under the collateral order doctrine, we have appellate jurisdiction. Under 28 U.S.C. § 1291, an immediate appeal may be taken from any final decision of the district court. “Although ‘final decisions' typically are ones that trigger the entry of judgment, they also include a small set of prejudgment orders that are ‘collateral to’ the merits of an action and ‘too important’ to be denied immediate review.”¹⁰ Under the collateral order doctrine, however, a prejudgment order is immediately appealable if it: (1) conclusively determines the disputed question; (2) resolves an important issue completely separate from the merits of the case; and (3) is effectively unreviewable on appeal from a final judgment.¹¹ A litigant must satisfy all three requirements to succeed under the collateral order doctrine. We narrowly construe this exception, taking into account that “a party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated.”¹²

Furthermore, the Supreme Court has noted that application of the collateral order doctrine involves a categorical inquiry and “[a]s long as the class of claims, taken as a whole, can be adequately vindicated by other means, the chance that the litigation at hand might be speeded, or a particular injustice averted, does not provide a basis for jurisdiction under § 1291.”¹³ The Court emphasized, “[t]he crucial question ... is not whether an interest is important in the abstract; it is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders.”¹⁴

Fattah appeals from the District Court's order denying a motion to quash an unexecuted search warrant on Speech or Debate Clause grounds. He relies on our decision in United States v. McDade where we held that we had jurisdiction to entertain an appeal regarding a motion to dismiss an indictment under the Speech or Debate Clause.¹⁵ Fattah cites to our language in McDade stating, “[w]e also have jurisdiction to review any...