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 2016-08

United States v. Randy Beltramea , 831 F.3d 1022 ( 2016 )


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  •                  United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-3199
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Randy Beltramea
lllllllllllllllllllll Defendant
Federal Public Defender
lllllllllllllllllllllInterested party - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
____________
Submitted: February 9, 2016
Filed: August 5, 2016
____________
Before SMITH and COLLOTON, Circuit Judges, and ERICKSON,1 District
Judge.
____________
SMITH, Circuit Judge.
1
The Honorable Ralph R. Erickson, Chief Judge, United States District Court
for the District of North Dakota, sitting by designation.
The Federal Public Defender (FPD) appeals an order of the district court2
compelling Terry McAtee, an Assistant Federal Public Defender, to reveal
communications that he had with his client, Randy Beltramea. We dismiss the appeal
for lack of jurisdiction.
McAtee represented Beltramea, who had been indicted for fraud. With
McAtee's assistance, Beltramea entered into a plea agreement with the government.
Subsequently, the government learned that Beltramea violated the terms of that
agreement. The government indicted Beltramea for obstruction of justice on that
basis. With the assistance of new counsel from outside the FPD's office, Beltramea
pleaded guilty to the obstruction charges. The government then subpoenaed McAtee
to testify at Beltramea's sentencing hearing regarding the facts of the breach. The FPD
moved to quash McAtee's subpoena, but the district court denied the motion. The
proceedings below are still pending. Nevertheless, the FPD has immediately appealed
the district court's ruling. Beltramea has not joined this appeal even though he filed
a memo in the district court that supported the FPD's motion.
The FPD and the government assert that we have jurisdiction pursuant to
Perlman v. United States,
    247 U.S. 7 
    (1918). Nevertheless, we have a "special
obligation" to satisfy ourselves that we actually possess the authority to decide this
case. Bender v. Williamsport Area Sch. Dist.,
    475 U.S. 534
    , 541 (1986).
The Supreme Court has long held that a party subject to an order of production
must refuse and be held in contempt before seeking appellate review. United States
v. Ryan,
    402 U.S. 530
    , 532–33 (1971); see also In re Grand Jury Proceedings
(Malone),
    655 F.2d 882
    , 884 (8th Cir. 1981). However, immediate review is available
2
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
-2-
"in the limited class of cases where denial of immediate review would render
impossible any review whatsoever of an individual's claims."
    Ryan, 402 U.S. at 533
    .
Perlman is one example.
    Id. But the 
    Perlman exception applies when the appellant
seeks to quash a subpoena directed to a disinterested third-party custodian of
information over which the appellant has asserted a privilege. Id.; see also Church of
Scientology of Cal. v. United States,
    506 U.S. 9
    , 18 n.11 (1992). The exception is
limited to an appeal by the privilege holder. In re Grand Jury,
    705 F.3d 133
    , 144 (3d
Cir. 2012). It does not swallow the general rule, which dictates that the target of the
subpoena—the third-party custodian—can appeal only after he has been held in
contempt.
    Id. In this 
    case, the FPD, on behalf of McAtee, moved the district court to quash
the subpoena and then immediately appealed the district court's denial. McAtee—the
target of the subpoena—has yet to refuse compliance.3 And the district court has not
held him in contempt, a final judgment that McAtee has the right to appeal.
Accordingly, subsequent appellate review is not impossible. We therefore dismiss this
appeal for lack of jurisdiction.4
______________________________
3
We recognize that McAtee's resistance to the district court's order of
production arises out of his honorable adherence to the ethical obligations of our
profession. See Schwimmer v. United States,
    232 F.2d 855
    , 863 (8th Cir. 1956).
4
Because Beltramea—the privilege holder and a party to the matter below—has
not appealed, we need not decide whether we would have had jurisdiction if he had
joined this appeal. See Mohawk Indus., Inc. v. Carpenter,
    558 U.S. 100
    , 107–13
(2009) (considering the collateral order doctrine and observing that "postjudgment
appeals generally suffice to protect the rights of litigants and ensure the vitality of the
attorney-client privilege").
-3-