United States v. Doe Co. (In re Grand Jury Investigation)

• Decision Date: 27 July 2020
• Docket Number: No. 19-10187,No. 19-10261,19-10187,19-10261
• Parties: IN RE GRAND JURY INVESTIGATION, USAO No. 2018R01761 (Grand Jury Subpoenas To Pat Roe), UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DOE COMPANY, Defendant-Appellant, v. PAT ROE; JOHN DOE, Movants. IN RE GRAND JURY INVESTIGATION, USAO No. 2018R01761 (Grand Jury Subpoenas To Pat Roe), UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DOE COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

IN RE GRAND JURY INVESTIGATION,
USAO No. 2018R01761 (Grand Jury Subpoenas To Pat Roe),

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DOE COMPANY, Defendant-Appellant,
v.
PAT ROE; JOHN DOE, Movants.

IN RE GRAND JURY INVESTIGATION,
USAO No. 2018R01761 (Grand Jury Subpoenas To Pat Roe),

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DOE COMPANY, Defendant-Appellant.

No. 19-10187
No. 19-10261

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted: November 14, 2019
July 27, 2020

FOR PUBLICATION

D.C. No. 3:19-xr-90017-CRB-1

OPINION

Page 2

Appeal from the United States District Court for the Northern District of California
Charles R. Breyer, District Judge, Presiding

Argued and Submitted November 14, 2019 San Francisco, California

Before: Kim McLane Wardlaw, William A. Fletcher, and Richard Linn,^* Circuit Judges.

Opinion by Judge W. Fletcher

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SUMMARY^**

Grand Jury Subpoenas

In two appeals arising from a federal grand jury investigation into the acquisition of one company by another, the panel (1) dismissed for lack of appellate jurisdiction the Doe Company's appeal seeking review of the district court's order enforcing Doe Company partner Pat Roe's compliance with a grand jury subpoena, and (2) affirmed the district court's orders enforcing the Doe Company's compliance with a grand jury subpoena and holding the Doe Company in contempt for failure to produce the subpoenaed documents in its possession.

Dismissing for lack of jurisdiction the Doe Company's interlocutory appeal from the enforcement order against Roe, the panel clarified that under Perlman v. United States, 247 U.S. 7 (1918), this court may entertain interlocutory appeals from orders enforcing grand jury subpoenas only when they require production of materials that are claimed to be privileged or otherwise legally protected from disclosure. Because the Doe Company made no such claim, this court lacks jurisdiction under Perlman. The panel noted that the Doe Company has not sought a writ of mandamus and that review is unavailable under the general collateral order doctrine.

The panel affirmed the district court's orders denying the Doe Company's motions to quash a grand jury subpoena and

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holding the Doe Company, which is based outside of the United States, in contempt. The panel held that, taken together, the district court's findings adequately support its determination that it had in personam jurisdiction over the Doe Company. The panel also held that it was fair, reasonable and just to imply that an individual—who was identified as the General Counsel for a firm in which the Doe Company retained a significant ownership interest and who stated that he could accept service for the Doe Company—had authority to receive, at a United States address, service on behalf of the Doe Company.

COUNSEL

Richard M. Strassberg (argued), James D. Gatta, and Elizabeth S. David, Goodwin Procter LLP, New York, New York; Andrew Kim, Goodwin Procter LLP, Washington, D.C.; for Defendant-Appellant.

Adam A. Reeves (argued), William Frentzen, and Robert S. Leach, Assistant United States Attorneys; Merry Jean Chan, Chief, Appellate Section, Criminal Division; David L. Anderson, United States Attorney; United States Attorney's Office, San Francisco, California; for Plaintiff-Appellee.

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OPINION

W. FLETCHER, Circuit Judge:

A federal grand jury has been investigating the acquisition of one company by another. The acquired company, through its officers and shareholders, is alleged to have provided fraudulently misleading information about its true value, leading the acquiring company to pay a substantially inflated price. The grand jury has so far issued two indictments. The grand jury issued subpoenas to a third company, Doe Company ("the Company"), and to Pat Roe, a former officer at the acquired company and a current partner at the Company. The Company moved to quash the subpoenas.¹

The district court denied the Company's motion to quash and ordered compliance by both the Company and by Pat Roe. The Company has appealed that order (No. 19-10187). The district court then ordered the Company and Roe to show cause why they were not in contempt. Roe responded by agreeing to produce the documents in Roe's possession. The Company declined to produce the documents in its possession, and the district court held the Company in contempt. The Company has also appealed that order (No. 19-10261). We consolidated the Company's appeals and stayed the district court's enforcement order against Roe.

We conclude that we lack appellate jurisdiction to review the district court's enforcement order directed to Roe. We dismiss that part of the appeal. We have jurisdiction to review the district court's enforcement orders directed to the

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Company and holding the Company in contempt. We affirm those orders.

I. Standard of Review

We review a district court's denial of a motion to quash a grand jury subpoena and its order of contempt sanctions for an abuse of discretion. In re Grand Jury Subpoena, No. 16-03-217, 875 F.3d 1179, 1183 (9th Cir. 2017). Underlying factual findings are reviewed for clear error. Id. "In reviewing decisions of the district court, we may affirm on any basis supported by the record . . . ." In re Frontier Props., Inc., 979 F.2d 1358, 1364 (9th Cir. 1992); see also Schweiker v. Hogan, 457 U.S. 569, 585 n.24 (1982).

II. Enforcement Order Against Pat Roe

The Company seeks to bring an interlocutory appeal from the part of the district court's enforcement order that is directed to Pat Roe. For the reasons that follow, we do not have appellate jurisdiction.

We generally have jurisdiction to review only "appeals from all final decisions of the district courts." 28 U.S.C. § 1291. Pretrial discovery orders, including denials of motions to quash grand jury subpoenas, are not final decisions under § 1291. United States v. Ryan, 402 U.S. 530, 532-33 (1971). Absent certification by the district court, a party seeking review must either seek mandamus, or disobey the order and then appeal the resulting contempt citation. See, e.g., Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 110-12 (2009) (no appellate jurisdiction over a pretrial discovery order seeking information claimed to be protected by the attorney-client privilege); In re Grand Jury Subpoena

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Issued to Bailin ("Bailin"), 51 F.3d 203, 205 (9th Cir. 1995) (no appellate jurisdiction over denial of motion to quash a subpoena until person subpoenaed refuses to comply and is held in contempt).

The finality requirement is not a mere...