Grand Jury Proceedings Klayman, In re

Citation760 F.2d 1490
Decision Date06 May 1985
Docket NumberNo. 84-6359,84-6359
PartiesIn re GRAND JURY PROCEEDINGS Kenneth KLAYMAN, Witness. Philip A. DEMASSA, Intervenor and Real Party In Interest, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Thomas A. Johnston, Law Offices of Barry Tarlow, Los Angeles, Cal., for appellant.

Herbert B. Hoffman, San Diego, Cal., for appellee.

Appeal from the United States District Court for the Southern District of California.

Before GOODWIN, WALLACE, and REINHARDT, Circuit Judges.

WALLACE, Circuit Judge:

DeMassa appeals the district court's order that promised to hold Klayman in contempt if Klayman continued to refuse to answer certain questions during the grand jury investigation of DeMassa. DeMassa subsequently moved to dismiss the appeal on the ground that the controversy is now moot. We have jurisdiction under 28 U.S.C. Sec. 1291. We agree that the controversy is moot and do not reach the merits.

I

In connection with a grand jury investigation of DeMassa, the government called Klayman, an attorney, to testify. Klayman refused to answer certain questions relating to a real estate transaction involving DeMassa, asserting that his answers were protected by the attorney-client privilege. The government filed a motion for an order to show cause why Klayman should not be held in contempt of court for refusing to answer these questions. DeMassa filed a motion to intervene as the real party in interest for the purpose of asserting the attorney-client privilege. At the hearing to show cause, the district court granted DeMassa's motion to intervene and ordered Klayman to make an in camera submission of his answers to the contested questions. After reviewing Klayman's answers, the district judge issued an order promising to hold Klayman in contempt if he continued to refuse to answer the questions, reasoning that the attorney-client privilege did not cover them.

DeMassa filed an immediate notice of appeal from this order. A few days later, the grand jury returned a superseding indictment against DeMassa and, shortly thereafter, the grand jury was dismissed. DeMassa then filed a motion to dismiss this appeal on the ground that, because the district court can no longer require Klayman to answer the contested questions before the grand jury, the controversy is moot.

II

Our authority under article III of the Constitution is limited to actual cases and controversies. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2796, 49 L.Ed.2d 683 (1976). The controversy in this case died when the order threatening contempt expired with the dismissal of the grand jury. This ordinarily would defeat jurisdiction. See id.

The Supreme Court has recognized an exception to this ordinary rule, however, when the underlying dispute between the parties is capable (1) of repetition and (2) of evading review. See, e.g., id., citing Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). Here, the government has stated unequivocally that it intends to call Klayman as a witness at DeMassa's trial and will ask the same questions Klayman refused to answer during the grand jury proceedings. Klayman has stated that if this happens he will again assert the privilege. Thus, the underlying dispute is capable of repetition among these parties.

But although the dispute may arise again, it is not likely to escape review, as the parties can file pretrial motions in limine and may also seek timely reviews from the appropriate adverse determinations. Thus, the exception to the live controversy limitation on our power is inapplicable. To hold otherwise would result in the exception swallowing the rule, in total disregard of article III.

Our decision in Bursey v. United States, 466 F.2d...

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6 cases
  • Sample v. Johnson
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 25, 1985
    ...... The Court recognized that questions involved in ICC proceedings are frequently repetitive, but that the agency's orders are often of short ... from reporting on confessions during "sensational" trial); In Re Grand Jury Proceedings Klayman, 760 F.2d 1490, 1492 (9th Cir.1985) (government ......
  • Grand Jury Proceedings, In re
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 12, 1998
    ...remedy is a post-indictment motion in limine to suppress the use of the evidence or testimony at trial. See In re Grand Jury Proceedings (Klayman), 760 F.2d at 1491-92 ("[A]lthough the dispute may arise again, it is not likely to escape review, as the parties can file pretrial motions in li......
  • USA v. KRANE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 29, 2010
    ...that there is no longer a justiciable controversy at issue, and we dismiss the appeal as moot. See In re Grand Jury Proceedings Klayman, 760 F.2d 1490, 1491 (9th Cir.1985) (“We have jurisdiction under 28 U.S.C. § 1291. We agree that the controversy is moot and do not reach the merits.”). I ......
  • U.S. v. Richey
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 5, 1989
    ...to a new probationary term that did not include the offending condition. Accordingly, this issue is moot. In re Grand Jury Proceedings Klayman, 760 F.2d 1490, 1491 (9th Cir.1985). This court may only consider the issue if the issue is capable of repetition and of evading review. Nebraska Pr......
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