In re Grand Jury Proceedings, 081810 FED10, 09-2062

Docket Nº:09-2062, 09-2068, 09-2209, 09-2228
Opinion Judge:EBEL, Circuit Judge.
Judge Panel:Before GORSUCH, EBEL, and HOLMES, Circuit Judges.
Case Date:August 18, 2010
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit


Nos. 09-2062, 09-2068, 09-2209, 09-2228

United States Court of Appeals, Tenth Circuit

August 18, 2010


The Court previously issued under seal two opinions regarding the discovery and use of material before a Grand Jury in re: 09-2062/09-2068 and 09-2209/09-2228. The Grand Jury at issue in those cases has now been discharged without returning any indictment against the subject of the investigation.

The Court believes that publication of these two opinions, in redacted form, is necessary to advance the law on certain issues discussed in those opinions. However, the Court is also mindful of the need to protect the privacy of the subject of the investigation and the secrecy of Grand Jury proceedings. Such protections are particularly acute in this case where no indictment was returned by the Grand Jury.

The subject of the Grand Jury has filed an objection to the publication of these two opinions. Alternatively, the subject of the investigation has suggested redactions in the opinions, and reported that those suggested redactions were agreeable to the United States Attorney.

Having considered the parties' positions and the competing and sometimes conflicting interests implicated, it is the judgment of the Court that:

(1) The subject's request that these opinions not be published is DENIED.

(2) The request for appropriate redactions is GRANTED as reflected in the opinions hereby being published.

(3) As redacted, the two opinions in re: Grand Jury Proceedings Nos. 09-2062/09-2068 (on the first appeal) and 09-2209/09-2228 (on the second appeal) are attached to this order. We ORDER that the opinions be published, and direct the Clerk to take appropriate steps in that regard.

Submitted on the briefs[*]


Before GORSUCH, EBEL, and HOLMES, Circuit Judges.

EBEL, Circuit Judge.

These appeals stem from a grand jury investigation into misrepresentations allegedly made by Appellee {on federal forms}.1 The Government issued two subpoenas duces tecum to Appellee's {employee ("Employee")} who had assisted Appellee in completing the {two} forms. The subpoenas requested documents and records "regarding [{Employee}'s] involvement in completing {the forms} for [Appellee]." (Jt. App. at 99, 11.) Although Appellee moved to quash the subpoenas on various grounds, only his relevancy objections are pertinent to this appeal. The district court definitively resolved these matters {in Order 2}, when it ordered, after conducting an in camera review to assess relevancy, that certain categories of relevant documents be produced and quashing the subpoena as to irrelevant documents. The Government then filed a motion for reconsideration that was definitively resolved {in Order 3}. In a subsequent order{, } {Order 4, } the district court, over the Government's objections, authorized Appellee to redact irrelevant information from some of the subpoenaed documents that were otherwise relevant to the Government's investigation. The Government appeals from these orders.

In appeal No. 09-2209, the Government challenges the district court's relevancy determinations that it finally resolved in {Order 3}, arguing first that Appellee lacks prudential standing to raise relevancy objections against the subpoena issued to {Employee}. With respect to the merits of the objections, the Government asserts that the district court abused its discretion by engaging in an in camera review of specific documents included in the categories of materials subpoenaed to assess their relevancy and in denying production of certain other requested material. Because prudential standing is discretionary, we decline to address the Government's prudential standing challenge. On the merits, we conclude that the district court failed to apply the correct legal standard for relevancy, and therefore abused its discretion as to its relevancy determinations in granting, in part, the motion to quash. Thus, we reverse the district court's orders related to relevancy.

In the Government's second appeal, No. 09-2228, the Government challenges {Order 4} solely on the grounds that the district court abused its discretion in authorizing redactions of personal family information in otherwise relevant subpoenaed documents. Because the district court again failed to apply the correct relevancy standard, we also reverse {Order 4}.


As mentioned above, these appeals stem from two grand jury subpoenas issued to {Employee} requesting that {Employee} produce documents {Employee} prepared for Appellee in the process of {completing federal forms}. Although the two subpoenas were issued to {Employee} at different times and are not identical, the district court's orders at issue here apply to both subpoenas, and the differences in the subpoenas are not material to these appeals. Thus, for the sake of clarity, we will treat both together.

The controversy here started when Appellee moved to quash the subpoenas on grounds of attorney-client privilege, work-product doctrine, and relevancy. Without waiting for a response from the Government, the district court, {REDACTED}, issued {Order 1} addressing Appellee's motions to quash. Pertinent to the appeals at issue here, this order required {Employee} to produce certain subpoenaed documents so it could review them in camera to determine if they were relevant to the subject matter of the grand jury investigation. Because these proceedings are sealed, the order was not transmitted electronically and the Government did not receive the order until {two days after it was filed}. During this delay, the Government, {REDACTED}, timely filed its response to Appellee's motions to quash, challenging Appellee's standing to make relevancy objections and also refuting the merits of those objections. Immediately upon receiving the district court's order, the Government filed a "motion for reconsideration, " requesting only that the district court reconsider {Order 1} in light of the Government's timely filed response.

The district court did so and revised {Order 1} in light of the Government's response. After entertaining a number of other motions and considering the subpoenaed documents in camera, the district court issued a tentative order {REDACTED}, and {subsequently} issued its definitive order on these matters {in Order 2}, requiring Appellee to produce more documents than it had required in {Order 1}.

A few days later, {REDACTED}, the Government filed a second motion for reconsideration. In addition to other matters, this motion again challenged Appellee's standing to make relevancy objections as well as the merits of those objections, but this time the Government provided the district court with new information regarding the scope of the grand jury investigation. The district court again entertained this motion for reconsideration. After issuing orders tentatively resolving these matters {REDACTED}, the district court heard arguments {REDACTED} that addressed both the standing and relevancy issues pertinent to the appeals at issue here. Finally, {in Order 3}, the district court issued an order definitively resolving the Government's second motion for reconsideration and revising its prior orders as necessary to accommodate for the increased scope of the grand jury investigation. The Government's first appeal, No. 09-2209, is from {Order 3}.

The squabbling over the subpoenas to {Employee}, however, continued even after {Order 3}. Some of the documents the court ordered {Employee} to produce under {Order 3} were produced with redactions of the personal information of Appellee's {family members}. The Government sought to compel production of these materials "without any unauthorized redactions." (Jt. App. at 252.) The district court reviewed unredacted versions of the documents in camera, and {in Order 4} authoriz{ed} the redactions of some family information, but require{ed} the removal of redactions of other information.2


In appeal No. 09-2209, the district court granted the Government an extension of time for good cause under Federal Rule of Appellate Procedure 4(b)(4) that extended the time for filing the notice of appeal from {Order 3} until {approximately two months after the filing of that order}. The Government filed its notice of appeal {six days before that deadline}. Although there is a dispute about the timeliness of this appeal, for reasons discussed below, we conclude the appeal was timely.

In appeal No. 09-2228, the Government also timely filed its notice of appeal. The Government filed its notice of appeal from {Order 4} on the same day the district court entered that order.

I. Jurisdiction

We have jurisdiction under 18 U.S.C. § 3731 to review a governmental appeal from a final order granting, in full or in part, a motion to quash a grand jury subpoena. See Company X v. United States (In re Grand Jury Proceedings), 835 F.2d 237, 238 (10th Cir. 1987) (per curiam). There are two disputes, however, related to the timeliness of the Government's first appeal, No. 09-2209: (1) whether the {Order 2} or {Order 3} was the final order subject to appeal, and (2) if {Order 3} was the appealable final order, whether, in an appeal taken under 18 U.S.C. § 3731, the district court can grant an extension of time for filing a notice of appeal under Appellate Rule 4(b)(4), as it did here, that would allow the Government to file its appeal beyond the statutory thirty-day time limit contained in 18 U.S.C. § 3731. We address each issue in turn, and we conclude that appeal No. 09-2209 was timely filed.

A. Whether the time for filing a notice of appeal in appeal No. 09-2209 is measured from {Order 2} or {Order 3}

The Government and Appellee dispute whether {Order 2} or {Order 3} finally resolved the standing and relevancy issues raised in appeal No. 09-2209. 3 Appellee asserts that the Government's first motion for reconsideration, which merely...

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