United States v. Carter ( 2021 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 4, 2021
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 20-3042
KARL CARTER,
Defendant.
--------------------------------------
FEDERAL PUBLIC DEFENDER,
Movant - Appellee.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:16-CR-20032-JAR-2)
_________________________________
William A. Glaser, Attorney, U.S. Department of Justice, Washington,
D.C. (Stephen R. McAllister, United States Attorney, District of Kansas;
Steven D. Clymer, Special United States Attorney, Brian A. Benczkowski,
Assistant Attorney General; Brian C. Babbitt, Acting Assistant Attorney
General; and Robert A. Zink, Acting Deputy Assistant Attorney General
with him on the briefs), on behalf of the Plaintiff-Appellant.
Melody Brannon, Federal Public Defender (Paige A. Nichols, Assistant
Federal Public Defender with her on the briefs), Kansas Federal Public
Defender, Topeka, Kansas, on behalf of the Movant-Appellee.
_______________________
Before TYMKOVICH, BALDOCK, and BACHARACH, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
This appeal grew out of United States v. Black, et al., which involved
allegations of drug crimes committed at a detention facility. In the course
of this prosecution, the United States Attorney’s Office in Kansas (USAO)
obtained video and phone call recordings from the detention facility. Some
of the recordings involved attorney-client communications between
detainees and their attorneys.
After learning that the USAO had these recordings, the Federal
Public Defender (FPD) intervened for the defendants in Black, who had
been housed at the detention facility. After intervening, the FPD moved for
return of the recordings containing attorney-client communications,
invoking Rule 41(g) of the Federal Rules of Criminal Procedure. This
motion spurred the district court to order an investigation into the USAO
and its possession of the recordings.
When the investigation ended, the district court
 dismissed the indictment against the last remaining defendant
in Black (Mr. Karl Carter) and
 ordered the USAO to provide the FPD with all of the
recordings of attorney-client communications in the USAO’s
possession.
In the course of these rulings, however, the district court made statements
adverse to the USAO and found contempt based partly on a failure to
preserve evidence.
2
The investigation led over a hundred prisoners to file post-conviction
motions, challenging their convictions or sentences based on alleged Sixth
Amendment violations stemming from intrusions into attorney-client
conversations.
The USAO doesn’t question the dismissal of Mr. Carter’s indictment
or the order to furnish the FPD with the recordings. Instead, the USAO
argues that the investigation was unlawful, the district court made
erroneous statements and findings about possible violations of the Sixth
Amendment, the district court clearly erred in its contempt findings, and
the district judge erred by stating that she would reassign herself to the
post-conviction cases.
We dismiss the appeal for lack of jurisdiction and prudential
ripeness.
I. The district court made adverse statements and findings that
could potentially be applied in the 100+ post-conviction cases.
The district court appointed a Special Master, who conducted the
investigation in three phases. In Phase I, he investigated whether
recordings of attorney-client communications could be separated from
other recordings. Having found separation feasible, the Special Master set
out in Phase II to identify the recordings that had captured attorney-client
communications. The probe intensified in Phase III as the Special Master
3
addressed the USAO’s role in obtaining and possibly using recordings of
attorney-client conversations.
As Phase III continued, the USAO sought a writ of mandamus, urging
us to halt the investigation as unlawful. Petition for a Writ of Mandamus,
In re United States, No. 18-3007 (10th Cir. Jan. 16, 2018). We narrowed
the scope of the investigation to the parties prosecuted in Black and “other
parties . . . who [had] filed Rule 41(g) motions in that proceeding,” but
otherwise allowed Phase III to continue. Order, In re United States,
No. 18-3007 (10th Cir. Feb. 26, 2018). The investigation culminated in an
order, where the district judge commented on possible violations of the
Sixth Amendment, found the USAO in contempt, and stated that she would
reassign herself to the related post-conviction cases. Joint App’x vol. 5,
at 1153–54, 1157.
These comments reflected three general statements about possible
violations of the Sixth Amendment:
1. The USAO had engaged in a “pattern of misconduct” by
possessing, retaining, and possibly using recordings of
attorney-client communications. Id. at 1155; see also id.
at 1150.
2. Many detainees had not waived the attorney-client privilege.
Id. at 1139.
3. Intrusion into privileged communications could justify a
remedy without a showing of prejudice. Id. at 1124.
The district court also cited the USAO for contempt for
4
 intentionally violating a “duty to preserve evidence
surrounding [its] practice of requesting and obtaining audio and
video recordings” of attorney-client communications,
 violating clawback orders, and
 violating an order to cooperate with the Special Master,
including failing to cooperate with his production requests.
Id. at 1102–06, 1108–09, 1111–13. Despite these findings, the district
court did not impose any sanctions.
The government urges vacatur of the order in Black based on the
potential effect on the 100+ post-conviction cases.
II. The district court’s adverse statements and contempt findings
don’t trigger jurisdiction or create a prudentially ripe dispute.
The USAO partially prevailed in district court by avoiding sanctions,
and the FPD partially prevailed by obtaining an order requiring return of
the recordings and dismissal of Mr. Carter’s indictment. But the USAO did
not object to these rulings or appeal them. The USAO instead asks us only
to vacate the district court’s adverse statements and contempt findings on
the ground that they could bolster the 100+ post-conviction claims.
A. The USAO has not shown a live case or controversy.
As the appellant, the USAO must “establish[] our appellate
jurisdiction.” United States v. Solco I, LLC, 962 F.3d 1244, 1249 (10th Cir.
2020) (quoting Estate of Ceballos v. Husk, 919 F.3d 1204, 1224 (10th Cir.
2019)). Appellate jurisdiction generally exists only if the appellant was
“aggrieved” by the district court’s judgment or order. Jarvis v.
5
Nobel/Sysco Food Servs. Co., 985 F.2d 1419, 1425 (10th Cir. 1993)
(quoting Deposit Guar. Nat. Bank, Jackson, Miss. v. Roper, 445 U.S. 326,
334 (1980)).
Prevailing parties are usually not considered “aggrieved.” But
sometimes a prevailing party can appeal “from an adverse ruling collateral
to the judgment on the merits . . . so long as that party retains a stake in
the appeal satisfying the requirements of Art[icle] III.” Id. (quoting Roper,
445 U.S. at 333–34). A stake can arise from collateral rulings when three
elements exist: (1) the prevailing party has suffered an “injury in fact,”
(2) the collateral ruling caused the injury, and (3) the injury is redressable.
Camreta v. Greene, 563 U.S. 692, 701 (2011).
The injury in fact must be “actual or imminent, not ‘conjectural’ or
‘hypothetical.’” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)
(quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).
The USAO urges a stake in this appeal through injury from the
district court’s statements and findings by causing (1) issue preclusion and
(2) adverse effects in the post-conviction cases. We disagree.
1. Appellate relief would not affect the future application of
issue preclusion.
If a successful appeal would affect “the future application of issue
preclusion, . . . the personal stake requirement of Article III [would be]
met.” Jarvis v. Nobel/Sysco Food Servs. Co., 985 F.2d 1419, 1425 (10th
6
Cir. 1993) (citing Roper, 445 U.S. at 335–36, & Elec. Fittings Corp. v.
Thomas & Betts Co., 307 U.S. 241 (1939)). 1 The USAO thus urges an
injury in fact based on the possibility that the district court’s statements
and findings could affect the 100+ post-conviction cases.
Issue preclusion would not apply against the USAO. See United
States v. Mendoza, 464 U.S. 154, 162 (1984) (“nonmutual offensive
collateral estoppel simply does not apply against the government in such a
way as to preclude relitigation of issues”). The USAO nonetheless argues
that the district court said that it intended to incorporate the statements and
contempt findings in the post-conviction rulings. For example, the district
court stated:
[T]he Court can narrow the inquiries required in each related
§ 2255 case because these petitioners all seek similar relief for
similar types of intrusions . . . . These issues include, inter
alia: (1) the elements required to prove a per se violation of the
Sixth Amendment under Tenth Circuit law; (2) whether
soundless video recordings constitute protected attorney-client
communications; (3) whether the “preamble language” that
played [before] . . . telephone calls constituted a waiver of the
attorney-client privilege; and (4) whether the government had a
legitimate law enforcement purpose when it procured the
recordings at issue in this case . . . . Likewise, the USAO’s
delay and obfuscation in the Special Master’s investigation will
weigh in fashioning an appropriate remedy into the § 2255
cases.
1
As the USAO points out, Jarvis also concluded that an appellant had
standing because “avoiding a state court suit would substantially reduce
[its] future litigation costs.” Jarvis, 985 F.2d at 1425. But the USAO has
not argued that appellate relief would reduce its future litigation costs.
7
Joint App’x vol. 5, at 976–77.
But the district court isn’t bound by its statements of intent. See
Camreta, 563 U.S. at 709 n.7 (stating that a district judge’s determinations
do not bind even herself). And to the extent that the district court does rely
on the statements and findings in the post-conviction rulings, the USAO
can appeal those rulings.
Statements about potential violations of the Sixth Amendment. The
district court’s statements about potential Sixth Amendment violations are
neither binding in the post-conviction cases nor final determinations. The
district court did not conclude that the USAO had violated the Sixth
Amendment rights of any individual. In fact, the district court repeatedly
cautioned that it was not making a final determination on a possible
violation of the Sixth Amendment:
 “Because both the attorney-client privilege and the Sixth
Amendment are personal to the defendant, any generalized
application of the limited record before the Court [in Black] to
establish blanket Sixth Amendment violations would be both
inappropriate and premature.” Joint App’x vol. 5, at 1133.
 “These rulings are not conclusions of law on the merits of
petitioners’ individual claims.” Id. “[P]articularized findings must be made with respect to each
claimant asserting the attorney-client privilege, which requires
review of the recordings and a minimal threshold showing by
the § 2255 litigants on the applicability of the privilege to their
individual case.” Id. at 1134.
8
 “[T]he ultimate conclusion about whether a particular detainee
waived the attorney-client privilege must be decided on a case-
by-case basis . . . .” Id. at 1139.
 “[T]he government may be able to demonstrate facts in
individual cases that a detainee knowingly and intelligently
waived the right to confidential attorney-client communications
. . . .” Id. at 1145.
 “[D]etermining whether the USAO became ‘privy to’ particular
recordings is not possible on this record. Ultimately, in the
context of individual § 2255 actions, the Court will consider
the USAO’s explanation or assessment of the circumstances
surrounding its access to and review of the particular
recordings.” Id. at 1147.
 “[The Court] withholds ruling on whether there was any other
legitimate law-enforcement purpose [justifying the USAO’s
possession of attorney-client calls] with respect to particular
litigants.” Id. at 1148–49.
 “[T]he Court does not make particularized findings of Sixth
Amendment violations on this record . . . .” Id. at 1155.
 “Over 100 § 2255 litigants continue to serve their sentence
. . . . [T]he Court cannot make a broad Sixth Amendment
violation determination nor grant the sweeping remedy the FPD
seeks on this record [for all those litigants] . . . .” Id. at 1156.
These cautionary comments were consistent with the remainder of the
order in Black, for the district court never concluded that anyone had
suffered a violation of the Sixth Amendment. To the contrary, the court
stressed that it would decide in the post-conviction cases whether
particular inmates had suffered a violation of the Sixth Amendment.
In the post-conviction cases themselves, the district court has
reiterated the importance of individually determining any possible Sixth
9
Amendment violations. Two examples reflect the importance of
individualized determinations:
1. The district court recently stated: “Although many common
issues overlap in the individual Sixth Amendment claims, the
Court stressed [in Black] that particularized findings must be
made with respect to each § 2255 claimant.” In re CCA
Recordings 2255 Litig. v. United States, 19-cv-2491-JAR-JPO,
2021 WL 150989, at *1 (D. Kan. Jan. 18, 2021) (Robinson,
C.J.), ECF No. 730, clarified on recons. (D. Kan. Mar. 3,
2021), ECF No. 784.
2. The district court has also observed that many of the post-
conviction cases will turn on individualized considerations:
“The Court will soon issue orders in individual cases either
dismissing claims . . . or granting an evidentiary hearing on
claims, all consistent with the particularized approach the
parties must take going forward. While numerous global
procedural and discovery issues have been addressed by the
Court over the last several years, ultimately ‘habeas relief
sought must be considered on an individual basis.’” Id. at *26
(quoting Wang v. Reno, 862 F. Supp. 801, 811 (E.D.N.Y.
1994)). 2
The results in the post-conviction cases reflect the non-binding
nature of the district court’s statements in Black. Since the making of those
statements, the district court has stated its intent to dismiss
 12 of the post-conviction cases in their entirety,
 22 of the post-conviction cases challenging convictions,
2
In the post-conviction cases, the court gave two reasons for revisiting
its analysis of the Sixth Amendment. First, “the parties’ arguments ha[d]
evolved” after the court ruled in Black. Second, the government had argued
that the statements in Black did not control in the post-conviction cases. In
re CCA Recordings 2255 Litig. v. United States, 19-cv-2491-JAR-JPO,
2021 WL 150989, at *3–*9 (D. Kan. Jan. 18, 2021) (Robinson, C.J.), ECF
No. 731.
10
 29 of the post-conviction cases challenging sentences, and
 4 of the post-conviction cases to the extent that they are based
on video recordings.
In re CCA Recordings 2255 Litig., No. 19-cv-2491-JAR-JPO (D. Kan.
Mar. 10, 2021), ECF No. 793. And the court has actually dismissed 33 of
the post-conviction cases. (Eighteen of the dismissals were voluntary;
fifteen were involuntary.) See id., ECF Nos. 46, 157–70, 319, 526, 566
(voluntary dismissals); ECF Nos. 606–07, 627, 801, 807–08, 811, 821–22,
825–27, 874, 884–85 (involuntary dismissals).
Contempt findings. The district court’s findings of contempt are not
binding in any of the post-conviction cases. The USAO argues that the
district court may impose adverse inferences or other sanctions in the post-
conviction cases. But the record contains no evidence of any sanctions
imposed in the post-conviction cases as a result of the contempt findings in
Black.
The USAO has pointed to three recent post-conviction rulings that
rely on a finding of contempt:
1. a discovery order (February 2020),
2. an order as to an adverse inference (October 2020), and
3. an order rejecting a defense of procedural default (January
2021).
11
First, the USAO points out that the district court authorized
discovery in a post-conviction case, relying on the court’s findings in
Black. In re CCA Recordings 2255 Litig. v. United States, 19-cv-2491-
JAR-JPO, slip op. at 2–5 (D. Kan. Feb. 24, 2020) (Robinson, C.J), ECF
No. 79. But the USAO can appeal this decision in the post-conviction case.
Second, the USAO points out that in a recent post-conviction order,
the district court said that it “intend[ed] to take as established petitioners’
claim that before each petitioner entered a plea, was convicted, or was
sentenced, each member of the prosecution team became ‘privy to’ each
recording” of allegedly privileged communications. In re CCA Recordings
2255 Litig., 19-cv-2491-JAR-JPO, slip op. at 13 (D. Kan. Oct. 15, 2020),
ECF No. 587. But the court relied on a refusal to comply with an order in a
post-conviction case, not in Black. Id. at 1; see also Oral Argument
at 21:20–21:45 (the USAO’s acknowledgment that this statement was not
based on the order in Black).
Finally, the USAO points out that in a post-conviction case, the
district court recently rejected the USAO’s defense of procedural default,
concluding that the petitioner could avoid a procedural default because the
“factual basis for Petitioner’s Sixth Amendment claim [had not been]
reasonably available to him at the time of his direct appeal, due in large
part to the government’s strategy of delay, denial, and deflection in the
Black case and its handling of attorney-client recordings.” In re CCA
12
Recordings 2255 Litig., 19-cv-2491-JAR-JPO, slip. op. at 15–16 & n.69
(D. Kan. Jan 18, 2021) (Robinson C.J.), ECF No. 732 (citing the order in
Black). But the USAO can appeal this decision through the post-conviction
case.
Intent to reassign the post-conviction cases. The district judge also
said that she intended to reassign herself to the post-conviction cases. But
this statement of intent in Black is not binding in the post-conviction
cases; and the USAO can challenge the reassignments in the post-
conviction cases, where the reassignments take place—not in Black, where
the district judge simply said what she intended to do in the post-
conviction cases.
* * *
None of the district court’s statements or findings are binding in the
post-conviction cases. See Camreta v. Greene, 563 U.S. 692, 709 n.7
(2011). So the USAO has not shown that this appeal would affect issue
preclusion under Jarvis v. Nobel/Sysco Food Servs. Co., 985 F.2d 1419(10th Cir. 1993).
2. The challenged statements and contempt findings are
neither part of the judgment nor necessary for it.
The USAO also argues that a stake in the appeal can arise if the
ruling would adversely affect future litigation. For this argument, the
13
USAO relies on Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S.
241 (1939).
Electrical Fittings involved a suit for patent infringement. Id. at 241.
The district court dismissed the suit for failure to prove infringement.
Despite the dismissal, the district court concluded that the patent was
valid. Id. at 242.
The defendants appealed the ruling on the validity of the patent; and
the appellate court dismissed, reasoning that the judgment “would not
bind” subsequent courts. Id. The Supreme Court reversed. The Court did
not address the validity of the patent, observing instead that “the
adjudication” of the patent’s validity would stand as one of the issues
being decided. Id. On this basis, the Court concluded that the appellate
court had jurisdiction “not for the purpose of passing on the merits, but to
direct the reformation of the decree.” Id.; see Deposit Guar. Nat. Bank,
Jackson, Miss. v. Roper, 445 U.S. 326, 335–36 n.7 (1980) (interpreting
Electrical Fittings to allow prevailing parties to appeal because “there had
been an adverse decision on a litigated issue, they continued to assert an
interest in the outcome of that issue, and for policy reasons this Court
considered the procedural question of sufficient importance to allow an
appeal”). Despite ordering reformation of the decree, the Supreme Court
observed that a prevailing party cannot appeal to obtain review of
14
“findings he deems erroneous which are not necessary” for the judgment.
Elec. Fittings, 307 U.S. at 242.
Here, the USAO is seeking appellate review of statements and
contempt findings that are neither part of the Black judgment nor necessary
for it. An example is the finding on contempt. This finding was not
mentioned in the judgment or necessary for the disposition, which included
no sanctions. The same is true of the district judge’s statements about
potential violations of the Sixth Amendment and intent to reassign herself
to the post-conviction cases. The Black judgment did not contain a final
determination as to a violation of the Sixth Amendment or reassignment of
the post-conviction cases.
* * *
The district court’s findings and statements were not part of or
necessary to the Black judgment. So Electrical Fittings does not support
the USAO’s standing to appeal these findings or statements. See United
States v. Fletcher ex rel. Fletcher, 805 F.3d 596, 605 (5th Cir. 2015)
(concluding that Electrical Fittings did not support an appeal of rulings
not appearing on the face of the judgment); United States v. Good
Samaritan Church, 29 F.3d 487, 489 (9th Cir. 1994) (same); In re DES
Litig., 7 F.3d 20, 25 (2d Cir. 1993) (same).
15
3. We lack jurisdiction because the USAO has not shown a live
case or controversy.
As a prevailing party, the USAO had to show a stake constituting a
live case or controversy. Jarvis v. Nobel/Sysco Food Servs. Co., 985 F.2d
1419, 1425 (10th Cir. 1993). The USAO argued that it had a stake in the
appeal because the district court’s statements and contempt findings
triggered issue preclusion and affected future rulings in the post-conviction
cases.
We reject both arguments because the district court’s statements and
findings are not (1) binding in the post-conviction cases or (2) part of or
necessary to the Black judgment. So the feared injury—application of these
statements and contempt findings in the post-conviction cases—is not
actual or imminent. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992). Given the absence of an injury in fact, we lack jurisdiction over the
appeal.
B. The district court’s adverse statements and contempt
findings don’t create a prudentially ripe dispute.
Even if we had jurisdiction, the appeal would remain prudentially
unripe. See United States v. Cabral, 926 F.3d 687, 693 (10th Cir. 2019)
(stating that even if an appeal presents a case or controversy, a court may
16
decline to reach the merits on the ground that the dispute lacks prudential
ripeness).
“The purpose of the ripeness doctrine is to prevent the premature
adjudication of abstract claims.” Texas Brine Co. and Occidental Chem.
Corp., 879 F.3d 1224, 1229 (10th Cir. 2018). To determine whether an
appeal is prudentially ripe, we balance “the fitness of the issue for judicial
review” against “the hardship to the parties from withholding review.” Id.(quoting United States v. Bennett, 823 F.3d 1316, 1326 (10th Cir. 2016)).
To determine fitness for review, we consider “whether determination
of the merits turns upon strictly legal issues or requires facts that may not
yet be sufficiently developed.” Id. (emphasis omitted) (quoting Bennett,
823 F.3d at 1326). The USAO is challenging statements about the Sixth
Amendment, but these statements lack any legal effect unless the district
court applies them in the post-conviction cases. And the district court has
repeatedly stated that each post-conviction case will be decided based on
its individual facts. The same is true with the district court’s contempt
findings. The district court did not impose any sanctions in Black, and any
future sanction would require development of a factual record as to the
proceedings in a particular prisoner’s case and the appropriate remedy.
To determine hardship to the parties, we consider “whether
withholding review [would] place the parties in a direct and immediate
dilemma.” Id. at 1230 (internal quotation marks omitted). No such dilemma
17
exists here. The parties can freely litigate all of the disputed issues in the
post-conviction cases.
The Court addressed a similar combination of circumstances in Texas
Brine Co. and Occidental Chemical Corp., 879 F.3d 1224 (10th Cir. 2018).
There Texas Brine appealed a production order, arguing that the requested
materials were privileged. 879 F.3d at 1228. But Texas Brine did not
produce a privilege log. Id. at 1229. Instead of grounding the privilege on
a particular document, Texas Brine urged a “blanket privilege.” Id. at
1230.
We concluded that both factors weighed against judicial review. On
the first factor, we stated that “[w]ithout the benefit of a privilege log or
inspection of documents, [the Court was] left with an insufficient factual
record.” Id. at 1230. On the second factor, we concluded that Texas Brine’s
concern was indirect and speculative: Once Texas Brine made a privilege
log, the possibility of a favorable ruling remained. Id. at 1231.
The same is true here. The USAO requests “blanket” protection from
us to prevent the use of certain statements and findings when the district
court rules in the post-conviction cases. Consideration of this request is
premature until the court rules in those cases. The USAO may ultimately
prevail in those cases; and if the USAO doesn’t prevail, it can appeal the
post-conviction rulings with a more fully developed record.
* * *
18
We review “judgments, not statements.” California v. Rooney, 483
U.S. 307, 311 (1987) (quoting Black v. Cutter Labs., 351 U.S. 292, 297
(1956)). The USAO does not challenge the final judgment or rulings in
Black. The USAO instead challenges statements and findings made along
the way to the judgment. “Our resources are not well spent superintending
each word a lower court utters en route to a final judgment in the
[appellant’s] favor.” Camreta v. Greene, 563 U.S. 692, 704 (2011).
The USAO fears that the district court will use these statements and
findings when ruling on the post-conviction cases. That possibility does
not create appellate jurisdiction or a prudentially ripe dispute:
There are . . . too many “ifs” . . . to make our review
appropriate at this stage. Even if everything the [USAO] fears
comes to bear, the [USAO] will still have the opportunity to
appeal such an order, and this Court will have the chance to
review it, with the knowledge that we are reviewing a [final]
judgment on the issue . . . .
Rooney, 483 U.S. at 312–13.
III. The USAO’s challenges to the lawfulness of the Phase III
investigation are moot.
Though the post-conviction cases are ongoing, Phase III is over. Yet
the USAO continues to challenge the district court’s authorization of
Phase III. 3
3
In its appeal briefs, the USAO argues that Phase III was unlawful
because it
 lacked a basis under Fed. R. Crim. P. 41(g),
19
Even if jurisdiction otherwise existed, these challenges would be
moot. Under Article III, a continuing “case-or-controversy” exists only if
the parties retain “a personal stake in the outcome” throughout the
litigation, including appellate review. United States v. Fisher, 805 F.3d
982, 989 (10th Cir. 2015). The matter otherwise becomes moot “when it is
impossible to grant any effectual relief.” Id. (quoting Chihuahuan
Grasslands All. v. Kempthorne, 545 F.3d 884, 891 (10th Cir. 2008)).
Even if Phase III were unlawful, we could not grant effectual relief
because Phase III is over. In that phase, the USAO produced some evidence
and refused to produce other evidence; witnesses testified and were
questioned. Nothing we say will change what took place in Phase III.
Given our inability to affect the scope of an investigation that has finished,
the USAO can no longer challenge the lawfulness of Phase III. See Binder,
 exceeded the district court’s inherent authority,
 lacked a factual basis, and
 violated the separation of powers.
At oral argument, members of the panel expressed concern that Phase III
had exceeded the scope of this Court’s mandamus order. Oral Argument
at 17:50–18:08, 46:40–49:08, 54:21–57:07; see also Order, In re United
States, No. 18-3007 (10th Cir. Feb. 26, 2018). But counsel for the USAO
stated that it was not challenging Phase III based on the scope of the
mandamus order. Oral Argument at 1:03:03–1:03:44. We thus do not
address whether Phase III deviated from our restrictions.
20
Robinson & Co. v. SEC, 748 F.2d 1415, 1418–19 (10th Cir. 1984)
(concluding that a challenge to an investigatory order had become moot
once the investigatory order terminated). We thus lack jurisdiction to
review the USAO’s challenges to the lawfulness of Phase III.
IV. Conclusion
We dismiss this appeal for lack of jurisdiction and prudential
ripeness. 4
4
Because we lack jurisdiction and the appeal is prudentially unripe,
we need not address the Federal Public Defender’s argument that the
district court hasn’t issued a final order. See 28 U.S.C. § 1291.
21