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No. 20-3042. United States v. Carter.

D.Kan. Judge Bacharach. Investigation into US Attorney’s Office—Sixth Amendment—Jurisdiction—Issue Preclusion—Prudential Ripeness—Mootness.

May 3, 2021


During a prosecution involving allegations of drug crimes at a detention facility, the US Attorney’s Office (USAO) obtained video and phone call recordings from the facility, some of which involved attorney-client communications between detainees and their attorneys. After learning that the USAO had the recordings, the Federal Public Defender (FPD) intervened for defendants in that case (United States v. Black) and moved for return of the recordings containing attorney-client communications. As a result of this motion, the district court ordered an investigation into the USAO. The investigation culminated in an order in which the district judge commented on possible Sixth Amendment violations, found the USAO in contempt, and stated that she would reassign herself to the related postconviction cases. The district court then dismissed the indictment against the last remaining defendant and ordered the USAO to provide the FPD with all attorney-client communications in its possession. The court declined to award sanctions against the USAO. The investigation prompted over 100 prisoners to file postconviction motions challenging their convictions or sentences based on alleged Sixth Amendment violations stemming from intrusions into attorney-client conversations.

On appeal, the Tenth Circuit first analyzed whether it had jurisdiction and whether the USAO’s claims were ripe. Appellate jurisdiction generally exists only if the appellant was aggrieved by the district court’s judgment or order. Here, the USAO did not challenge the dismissal of defendant’s indictment or the order compelling production of the recordings, and it partially prevailed in the district court by avoiding sanctions. A prevailing party can appeal from an adverse ruling collateral to the merits judgment if it retains a stake in the appeal, which can arise from collateral rulings when (1) the prevailing party has suffered an “injury in fact,” (2) the collateral ruling caused the injury, and (3) the injury is redressable. The USAO maintained it was injured because the court’s statements and findings caused issue preclusion and adverse effects in the postconviction cases. However, none of the district court’s statements or findings are binding in the postconviction cases or necessary to the Black judgment, so the USAO did not show that the appeal would lead to issue preclusion. Accordingly, the feared injury was not actual or imminent, and the Tenth Circuit lacks appellate jurisdiction.

Further, even if the Tenth Circuit had jurisdiction, the appeal would remain prudentially unripe because the parties can freely litigate all of the disputed issues in the postconviction cases.

Lastly, the USAO challenged the district court’s authorization of Phase III of the investigation. However, even if jurisdiction otherwise existed, this challenge is moot because Phase III is over.

The appeal was dismissed for lack of jurisdiction and prudential ripeness.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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