U.S. v. Austin, 04-10576.

• Decision Date: 02 August 2005
• Docket Number: No. 04-10576.,04-10576.
• Citation: 416 F.3d 1016
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Benjamin AUSTIN; Felipe Cisneros; Lorena Cisneros; Luis Cisneros; Paul Eppinger; Raymond Llamas; Angel Rivera; Richard Trujillo, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1016

416 F.3d 1016

UNITED STATES of America, Plaintiff-Appellee, v. Benjamin AUSTIN; Felipe Cisneros; Lorena Cisneros; Luis Cisneros; Paul Eppinger; Raymond Llamas; Angel Rivera; Richard Trujillo, Defendants-Appellants.

No. 04-10576.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 12, 2005.

Filed August 2, 2005.

COPYRIGHT MATERIAL OMITTED

Mark Fine (argued), Billy R. Blackburn (briefed), Albuquerque, NM, for the defendants-appellants.

Steven C. Yarbrough, Assistant United States Attorney, Phoenix, AZ, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona, Roslyn O. Silver, District Judge, Presiding. D.C. No. CR-03-00730-ROS.

Before: HUG, FERGUSON, and RYMER, Circuit Judges.

FERGUSON, Circuit Judge:

Defendants-Appellants Benjamin Austin, Felipe Cisneros, Lorena Cisneros, Luis Cisneros, Paul Eppinger, Raymond Llamas, Angel Rivera, and Richard Trujillo (collectively, "Defendants") appeal the District Court's interlocutory order permitting disclosure of communications that occurred outside the presence of counsel between at least one of them and co-defendant Armando Alvarado ("Alvarado"), who withdrew from a joint defense agreement ("JDA") to cooperate with the Government. We hold that the District Court's order is not immediately appealable under the collateral order doctrine, the Perlman rule, or as a writ of mandamus and, therefore, dismiss Defendants' appeal for lack of jurisdiction.

I. BACKGROUND

The United States charged co-defendants in this case with, among other crimes, conspiracy to commit murder, murder, and offenses under the Racketeer Influenced and Corrupt Organizations Act. Shortly after being indicted in the District of New Mexico in November 2002, co-defendants entered into a written JDA. The district court approved the JDA and allowed co-defendants to conduct joint defense meetings. The Government later dismissed the New Mexico indictment when it indicted co-defendants on similar charges in the District of Arizona in July 2003. Upon transferring to Arizona, co-defendants signed an identical JDA, from which Alvarado eventually withdrew to cooperate with the Government.

On May 26, 2004, the Government moved to strike or clarify certain JDA provisions that could keep Alvarado from discussing statements that co-defendants made in jail after signing the New Mexico JDA. Alvarado had been housed in the same jail pod as Defendants Felipe Cisneros, Luis Cisneros, Paul Eppinger, Raymond Llamas, and Angel Rivera while detained in New Mexico from January to November 2003. Alvarado's attorney had expressed concern to the Government that the JDA could prevent Alvarado from disclosing any of the co-defendants' statements, regardless of whether they occurred outside of an attorney's presence or not in preparation for a joint defense.

The District Court ruled on August 6, 2004 "that statements made during discussions between inmates in their cells with no lawyers present are not covered as confidential communications under the joint defense privilege." As a result, the Court decided not to examine, strike, or clarify any of the JDA's provisions in response to the Government's motion.

Upon Defendants' motion for reconsideration, the District Court reviewed Alvarado's ex parte submissions in camera to determine if the joint defense privilege protected their disclosure. In its October 5, 2004 order, the Court explained that courts have generally held that the joint defense privilege does not cover conversations among defendants made outside counsel's presence. The Court also found that, even assuming that the joint defense privilege could protect these inmate-to-inmate conversations, the joint defense privilege did not protect the discussions in question because they were not made at an attorney's behest or for the purpose of seeking legal advice or communicating confidential work product.

Defendants ask that we reverse the District Court's order on appeal. In particular, they contend that the District Court erred in accepting Alvarado's ex parte submissions as true without providing Defendants with access to the communications at issue and, thereby, depriving them of a fair opportunity to assert specific privilege claims as required by United States v. Martin, 278 F.3d 988 (9th Cir.2002). In Martin, we held that "[a] party claiming the [attorney-client] privilege must identify specific communications and the grounds supporting the privilege as to each piece of evidence over which privilege is asserted." Id. at 1000 (citing United States v. Osborn, 561 F.2d 1334, 1339 (9th Cir.1977)). Thus, on appeal, Defendants seek to obtain access to the communications at issue. Only with this information in hand, Defendants argue, can they identify with specificity those conversations that the joint defense privilege potentially protects. They concede the possibility, however, that none of the communications in dispute might be protected.

II. JURISDICTION

Generally, we have jurisdiction to review only "appeals from all final decisions of the district courts . . ." 28 U.S.C. § 1291. Since this case involves a pretrial order, the order is not a final decision appealable under 28 U.S.C. § 1291. See Van Cauwenberghe v. Biard, 486 U.S. 517, 521-22, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988) (stating that a decision is not final for appeal purposes "until there has been a decision by the district court that `ends the litigation on the merits and leaves nothing for the court to do but execute the judgment'") (quotation omitted). Defendants contend, nevertheless, that we have jurisdiction to review the order under three alternative bases: 1) the collateral order doctrine, 2) the Perlman rule, or 3) as a writ of mandamus. None of these grounds provide this Court with jurisdiction.

A. Collateral Order Doctrine

A small class of orders is final for purposes of 28 U.S.C. § 1291 under the collateral order doctrine set forth in Cohen v Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The collateral order doctrine is actually considered "a narrow exception to[,]" United States v. Bird, 359 F.3d 1185, 1188 (9th Cir.2004), or a "practical construction of[,]" Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (citing Cohen, 337 U.S. at 546, 69 S.Ct. 1221), the final judgment rule that treats orders by the district court that "finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen, 337 U.S. at 546, 69 S.Ct. 1221.

In the criminal context, specifically, the Supreme Court has interpreted the collateral order doctrine "with the utmost strictness" as a result of "the compelling interest in prompt trials[.]" Flanagan v. United States, 465 U.S. 259, 265, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). "Piecemeal appeals encourage delay, which `is fatal to the vindication of the criminal law.'" United States v. Lewis, 368 F.3d 1102, 1104 (9th Cir.2004), cert. denied, ___ U.S. ___, 125 S.Ct. 901, 160 L.Ed.2d 775 (2005) (quoting United States v. MacDonald, 435 U.S. 850, 853-54, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978)). In fact, "delay may prejudice the prosecution's ability to prove its case, increase the cost to society of maintaining those defendants subject to pretrial detention, and prolong the period during which defendants released on bail may commit other crimes." MacDonald, 435 U.S. at 862, 98 S.Ct. 1547 (citing Dickey v. Florida, 398 U.S. 30, 42, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) (Brennan, J., concurring)). Thus, we interpret the collateral order doctrine strictly in this case.

For the District Court's order to fall under the collateral order doctrine, it must "[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468-69, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (footnote and citations omitted). Should the order fail to meet any one of these requirements, it is not appealable under the collateral order doctrine. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988).

1.

We first consider if the District Court's order is "tentative, informal or incomplete" because "[s]o long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal." Cohen, 337 U.S. at 546, 69 S.Ct. 1221. The District Court conclusively decided "that statements made during discussions between inmates in their cells with no lawyers present are not covered as confidential communications under the joint defense privilege." In so doing, it acknowledged that the issue had been fully developed through extensive briefing and oral argument, and that no further briefing, argument, or ex parte hearings with Alvarado or a privilege log were necessary. The first requirement is satisfied.

2.

To meet the second requirement, Defendants must show that appellate review will "resolve an important issue completely separate from the merits of the action[.]" Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. 2454. Resolution of the issue, therefore, must "not simply [be] a `step toward final disposition of the merits of the case (which would) be merged in final judgment[.]'" Abney v. United States, 431 U.S. 651, 658, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (quoting Cohen, 337 U.S. at 546, 69 S.Ct. 1221). For instance, we have held as unreviewable under the collateral order doctrine a district court's denial of a defendant's motion to dismiss an indictment on the basis of a "fair warning" defense because the "fair warning claim involve[d] questions...