United States v. Punn

• Citation: 737 F.3d 1
• Decision Date: 06 December 2013
• Docket Number: Docket No. 13–2780–cr.
• Parties: UNITED STATES of America, Appellee, v. Rakesh K. PUNN, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

737 F.3d 1

UNITED STATES of America, Appellee,

v.Rakesh K. PUNN, Defendant–Appellant.

Docket No. 13–2780–cr.

United States Court of Appeals,Second Circuit.

Argued: Oct. 3, 2013.

Decided: Dec. 6, 2013.

Michael K. Bachrach, Law Office of Michael K. Bachrach, New York, N.Y. (Steve Zissou, Elizabeth E. Macedonio, Bayside, NY, on the brief), for Defendant–Appellant.

Allen L. Bode (David C. James, Assistant United States Attorney, on the brief), Assistant United States Attorney, for Loretta E. Lynch, United States Attorney, Eastern District of New York, New York, NY, for Appellee.

Before: POOLER, LYNCH, and DRONEY, Circuit Judges.

GERARD E. LYNCH, Circuit Judge:

This appeal requires us to decide whether an order denying a motion to quash grand jury subpoenas directed at third parties on the ground that the subpoenas were issued for the sole or dominant purpose of preparing for the movant's trial on a pending indictment is an immediately appealable order under 28 U.S.C. § 1291. Although this Court has addressed this issue on a number of occasions, our case law does not reflect a uniform approach to addressing that question, or a consistent answer. We conclude that such orders are not immediately appealable.

BACKGROUND

Appellant Rakesh Punn is a licensed medical doctor whose practice included pediatric care. He is also the father of two adult children, Sippy and Jesse Punn. In July 2010, Sippy and Jesse Punn provided the Nassau District Attorney's Office with information suggesting their father's possible commission of crimes including unlawful surveillance, child pornography, and health care fraud. Both gave sworn statements to local law enforcement officers, and Sippy Punn testified twice before Nassau County grand juries. Neither of the children spoke to federal investigators or testified before a federal grand jury at that time.

On January 4, 2012, a grand jury in the Eastern District of New York indicted Punn on seven counts of sexual exploitation of children, in violation of 18 U.S.C. § 2251(a) & (e), and twenty-nine counts of health care fraud, in violation of 18 U.S.C. § 1347. The indictment alleges that Punn created sexually explicit images and videos of patients and submitted fraudulent insurance claims for medical procedures and office consultations which were conducted not for medically accepted purposes, but solely for the purpose of sexual gratification. The case was assigned to Judge Joanna Seybert and is currently in its pretrial phase.

On March 4, 2013, Punn filed pretrial motions seeking, among other things, to suppress evidence derived from the search of Punn's home. On May 6, two days before the original deadline for the government's response to Punn's pretrial motions, Jesse and Sippy Punn were served with subpoenas to testify on May 9 before a federal grand jury investigating their father. On May 9, Punn moved in his case to quash those subpoenas, on the ground that they were issued for the improper purpose of assisting the government in preparing for Punn's trial on the pending indictment, including the government's response to Punn's pretrial motions.¹ On July 16, after full briefing, the district court denied Punn's motion to quash, holding that Punn lacked standing to raise constitutional issues of privilege on behalf of his adult children, and that his motion on his own behalf failed on the merits because he had failed to offer evidence overcoming the presumption that grand jury subpoenas are issued for proper purposes. Punn moved for reconsideration, which was also denied. This appeal followed.

DISCUSSION

Punn asks this Court to hold that he has standing to challenge the grand jury subpoenas served on his adult children, and that the subpoenas should have been quashed because they were issued for the improper purpose of allowing the government to prepare its case for trial on an already pending indictment, by gathering evidence and interviewing potential defense witnesses. Prior to addressing either of these issues, however, we must decide whether we have jurisdiction to hear an appeal from an order denying a motion to quash grand jury subpoenas directed at third parties on the ground that the subpoenas were issued for the improper purpose of trial preparation. Because we conclude that such orders are not immediately appealable, and thus that we lack jurisdiction to hear Punn's appeal, we dismiss the appeal without reaching the merits of Punn's contentions.²

I. Appellate Jurisdiction

In general, a party “is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994). Consistent with this background principle, 28 U.S.C. § 1291 permits the Courts of Appeals to hear “appeals from all final decisions of the district courts of the United States ... except where a direct review may be had in the Supreme Court.” 28 U.S.C. § 1291. The typical appeal under § 1291 is an appeal from an order that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 497, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989) (internal quotation marks omitted). Less commonly, § 1291 also permits appeals from orders that are not final in the traditional sense. Specifically, the collateral order doctrine, a practical construction of § 1291, permits an immediate appeal from a “narrow class of decisions that do not terminate the litigation, but must, in the interest of achieving a healthy legal system,nonetheless be treated as final.” Digital Equip. Corp., 511 U.S. at 867, 114 S.Ct. 1992 (internal quotation marks and citation omitted).

To fall within the scope of the collateral order doctrine, an order 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.” Van Cauwenberghe v. Biard, 486 U.S. 517, 522, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988) (internal quotation marks omitted). An order is “effectively unreviewable” where “the order at issue involves an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.” Lauro Lines s.r.l., 490 U.S. at 498–99, 109 S.Ct. 1976 (internal quotation marks omitted). In contrast, the fact that a ruling “may burden litigants in ways that are only imperfectly reparable by appellate reversal of a final district court judgment” is not sufficient. Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (internal quotation marks omitted). The determination of whether appellate jurisdiction exists focuses on “the entire category to which a claim belongs” rather than the individual claim at issue. Id. (internal quotation marks omitted). “As long as the class of claims, taken as a whole, can be adequately vindicated by other means, the chance that the litigation at hand might be speeded, or a particular injustice averted, does not provide a basis for jurisdiction under § 1291.” Id. (internal quotation marks and alteration omitted).

In general, an order denying a motion to quash a grand jury subpoena is not a final decision and is not immediately appealable under § 1291. In re Grand Jury Subpoena for New York State Income Tax Records, 607 F.2d 566, 569 (2d Cir.1979). “To obtain appellate review, the subpoenaed person ordinarily must defy the district court's enforcement order, be held in contempt, and then appeal the contempt order, which is regarded as final under § 1291.” In re Air Crash at Belle Harbor, 490 F.3d 99, 104 (2d Cir.2007) (internal quotation marks omitted). In some instances, however, the obligation to submit to contempt is excused because “the purposes underlying the finality rule require a different result.” Id. at 105 (internal quotation marks omitted).

One such instance, the “Perlman Exception,” takes its name from the Supreme Court decision describing it, Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918). See also In re Air Crash at Belle Harbor, 490 F.3d at 105 (describing the “Perlman Exception” to the contempt requirement). In Perlman, the defendant had previously been a witness in a patent infringement suit. In connection with his testimony in that case, certain exhibits that he owned were offered into evidence. Following the resolution of the patent suit, the court impounded the exhibits and later issued an order to show cause why the exhibits should not be produced to the government for use in connection with a grand jury investigation of Perlman. Perlman sought an order restraining the government from using the exhibits. He argued, among other things, that production of the exhibits to the government would make him a “compulsory witness against himself” in violation of the Fifth Amendment. Perlman, 247 U.S. at 13, 38 S.Ct. 417. In the Supreme Court, the government argued that the district court's denial of Perlman's request was “not final as to Perlman but interlocutory in a proceeding not yet brought” and therefore not immediately reviewable. Id. The Supreme Court rejected this argument,finding that to hold otherwise would leave Perlman “powerless to avert the mischief of the order.” Id.

The Perlman decision has “come to stand for the principle that the holder of an asserted privilege may immediately appeal the enforcement of a subpoena when the subpoena is directed at another person who does not object to providing the testimony or documents at issue.” In re Air Crash at Belle Harbor, 490 F.3d at 106;see also In re Grand Jury Subpoena Dated Jan. 30, 1986 to Bronx Democratic Party, 784 F.2d 116, 118 (2nd Cir.1986) (“There is an exception to [the contempt] rule, first enunciated in Perlman v. United States, ...