U.S. v. Griffin

• Decision Date: 16 March 2006
• Docket Number: No. 05-50299.,05-50299.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee GRIFFIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

440 F.3d 1138

UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee GRIFFIN, Defendant-Appellant.

No. 05-50299.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 15, 2005.

Filed March 16, 2006.

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Joseph F. Walsh, Los Angeles, CA, Michael M. Crain, Santa Monica, CA, for the appellant.

Stephen G. Wolfe, Gregory W. Jessner, and Joey Blanche, Office of the U.S. Attorney, Los Angeles, CA, for the appellee.

Appeal from the United States District Court for the Central District of California; George H. King, District Judge, Presiding. D.C. No. CR-02-00938-GHK.

Before SUSAN P. GRABER, M. MARGARET McKEOWN, and W. FLETCHER, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge.

Robert Lee Griffin appeals the district court's order requiring a special master to deliver to the government redacted letters written by Griffin to Pamela Griffin, who is both his wife and his attorney, while Griffin was incarcerated in California state prison. The letters were seized during a search of Pamela Griffin's residence pursuant to a valid search warrant. A special master redacted those portions of the letters protected by the attorney-client privilege and the work-product doctrine. The district court ordered that the redacted letters be turned over to the prosecution.

Griffin moved in the district court to prevent the special master from turning over the redacted letters, contending that they are protected marital communications. After the district court denied the motion, Griffin brought an interlocutory appeal in this court. He contends that we have jurisdiction to review the district court's order on several bases, including the collateral order doctrine and the so-called Perlman rule. We hold that we have jurisdiction, and we affirm.

I. Background

Robert Lee Griffin has been indicted in federal district court on one count of conspiracy to conduct and participate in the affairs of the Aryan Brotherhood prison gang's racketeering enterprise, in violation of 18 U.S.C. § 1962, and two counts of participating in the violent crime of murder in aid of the racketeering enterprise, in violation of 18 U.S.C. § 1959(a)(1). Among other things, the indictment alleges that Griffin is one of the leaders of the prison gang and that he has ordered or approved the murders of seven, and the attempted murders of two more, named individuals.

Six boxes of documents were seized by law enforcement officials during a valid search of the residence of Griffin's wife/attorney. The documents include numerous letters written by Griffin while he was incarcerated in California state prison. These letters were sent in envelopes marked "Confidential" and were addressed to Pamela Griffin as an "Attorney at Law." The magistrate judge appointed a special master to review the letters. The special master redacted all letters and portions of letters protected by the attorney-client privilege and the work-product doctrine. The special master then prepared to turn over to the government those letters and portions of letters not covered by either the attorney-client privilege or the work-product doctrine.

Griffin moved to prevent these redacted materials from being turned over to the government. He did not object to the special master's conclusion that they were not protected by the attorney-client privilege or the work-product doctrine. Rather, he contended that they were protected by the marital communications privilege. The special master recommended that the motion be denied. She concluded that Griffin had violated prison regulations by including non-legal, personal communications in letters designated as confidential attorney-client correspondence. The district court denied Griffin's motion, but on the different ground that the marital communications privilege "generally" extends "only to the use of marital communications as evidence in judicial or grand jury proceedings." Griffin appealed the district court's order denying his motion and directing that the redacted letters be turned over to the office of the United States Attorney. The order has been stayed, and Griffin has remained incarcerated on an unrelated state court conviction, during the pendency of this appeal.

II. Discussion

A. Jurisdiction

This court generally has jurisdiction to review only "appeals from all final decisions of the district courts." 28 U.S.C. § 1291. The Supreme Court has cautioned that "the delays and disruptions attendant upon intermediate appeal are especially inimical to the effective and fair administration of the criminal law." DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). The district court's pretrial order is not a final decision under § 1291 because it does not "end[ ] the litigation on the merits and leave[ ] nothing for the court to do but execute the judgment." Van Cauwenberghe v. Biard, 486 U.S. 517, 521, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988) (internal quotation marks omitted). However, we hold that the order is immediately appealable under either the collateral order doctrine or the Perlman rule.

1. Collateral Order Doctrine

In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), the Supreme Court held that a "small class" of pretrial decisions are appealable collateral orders. Under Cohen, an interlocutory decision is appealable as a "collateral order" when it "(1) conclusively determine[s] the disputed question, (2) resolve[s] an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment." Sell v. United States, 539 U.S. 166, 176, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003) (internal quotation marks omitted). Courts interpret the collateral order doctrine strictly in criminal cases because of "the compelling interest in prompt trials[.]" United States v. Austin, 416 F.3d 1016, 1020 (9th Cir. 2005) (quoting Flanagan v. United States, 465 U.S. 259, 265, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984)) (alteration in original). We conclude that Griffin's appeal satisfies the collateral order doctrine.

First, the district court's order "conclusively determine[s] the disputed question" whether the government is entitled to read the communications between Griffin and his wife for which the privilege had been claimed. Further, the issue of privilege has been "fully developed" in two rounds of briefing before the special master and the district court. Austin, 416 F.3d. at 1020. Although the district court's order leaves open the possibility of Griffin's raising an evidentiary objection in future judicial proceedings, the disputed question before us is whether the government may read the letters. It is not whether it may use them as evidence in a judicial proceeding. Griffin has therefore satisfied the first Cohen requirement.

Second, appellate review would resolve an important issue "completely separate from the merits of the action." We have held that claims of attorney-client and joint defense privilege qualify as "important" issues under Cohen. Id. at 1021. The marital communications privilege is designed to "protect[ ] . . . marital confidences, regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails." Wolfle v. United States, 291 U.S. 7, 14, 54 S.Ct. 279, 78 L.Ed. 617 (1934). Griffin's privilege claim does not involve "considerations enmeshed in the merits of the dispute" and would not "affect. . . or be affected by" the decision on the merits in his criminal trial. Midland Asphalt Corp. v. United States, 489 U.S. 794, 800, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989) (internal quotation marks and emphasis omitted).

Griffin's "privilege claim is independent of . . . criminal liability" because he does not challenge the merits of the charges against him in this appeal. Austin, 416 F.3d at 1021. In addition, Griffin's claim that the marital communications privilege precludes the disclosure of his letters "does not require a showing of prejudice to the defense as a necessary element that can be adequately reviewed only after the conclusion" of his criminal trial. Id. (holding that no showing of prejudice is required in review of district court order finding joint defense privilege inapplicable to certain conversations). Griffin thus has satisfied Cohen's second requirement.

Third, if we decline to hear Griffin's appeal at this time, and if he is correct in his assertion of privilege, by the time of trial he will have suffered "the very harm that he seeks to avoid," Sell, 539 U.S. at 176-77, 123 S.Ct. 2174, namely erroneous disclosure of privileged material. The Supreme Court has stated that "reversal of the conviction and . . . the provision of a new trial free of prejudicial error normally are adequate means of vindicating the constitutional rights of the accused." United States v. Hollywood Motor Car Co., 458 U.S. 263, 268, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982) (per curiam). Collateral orders are therefore limited to those situations where the right asserted is "one that must be upheld prior to trial if it is to be enjoyed at all," id. at 270, 102 S.Ct. 3081, or "when the practical effect of the order will be irreparable by any subsequent appeal." DiBella, 369 U.S. at 126, 82 S.Ct. 654.

We have previously invoked the collateral order doctrine to review pretrial orders that conclusively resolved important issues involving claims of privilege in habeas corpus cases. In Bittaker v. Woodford, 331 F.3d 715, 717 (9th Cir.2003) (en banc), the district court had entered an interlocutory protective order holding that a habeas petitioner who had brought an ineffective assistance of counsel claim had not thereby waived his attorney-client privilege in the event his petition was successful and he was later brought to trial in state court on the same criminal...