United States v. Griffin ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-50299
Plaintiff-Appellee,
v.  D.C. No.
CR-02-00938-GHK
ROBERT LEE GRIFFIN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Argued and Submitted
September 15, 2005—Pasadena, California
Filed March 16, 2006
Before: Susan P. Graber, M. Margaret McKeown, and
William A. Fletcher, Circuit Judges.
Opinion by Judge William A. Fletcher
2729
UNITED STATES v. GRIFFIN 2731
COUNSEL
Joseph Francis Walsh, Los Angeles, California, Michael M.
Crain, Santa Monica, California, for the appellant.
Stephen G. Wolfe, Gregory W. Jessner, and Joey Blanche,
Office of the U.S. Attorney, Los Angeles, California, for the
appellee.
2732 UNITED STATES v. GRIFFIN
OPINION
W. FLETCHER, Circuit Judge:
Robert Lee Griffin appeals the district court’s order requir-
ing a special master to deliver to the government redacted let-
ters written by Griffin to Pamela Griffin, who is both his wife
and his attorney, while Griffin was incarcerated in California
state prison. The letters were seized during a search of Pamela
Griffin’s residence pursuant to a valid search warrant. A spe-
cial master redacted those portions of the letters protected by
the attorney-client privilege and the work-product doctrine.
The district court ordered that the redacted letters be turned
over to the prosecution.
Griffin moved in the district court to prevent the special
master from turning over the redacted letters, contending that
they are protected marital communications. After the district
court denied the motion, Griffin brought an interlocutory
appeal in this court. He contends that we have jurisdiction to
review the district court’s order on several bases, including
the collateral order doctrine and the so-called Perlman rule.
We hold that we have jurisdiction, and we affirm.
I. Background
Robert Lee Griffin has been indicted in federal district
court on one count of conspiracy to conduct and participate in
the affairs of the Aryan Brotherhood prison gang’s racketeer-
ing enterprise, in violation of 18 U.S.C. § 1962, and two
counts of participating in the violent crime of murder in aid
of the racketeering enterprise, in violation of 18 U.S.C.
§ 1959(a)(1). Among other things, the indictment alleges that
Griffin is one of the leaders of the prison gang and that he has
ordered or approved the murders of seven, and the attempted
murders of two more, named individuals.
Six boxes of documents were seized by law enforcement
officials during a valid search of the residence of Griffin’s
UNITED STATES v. GRIFFIN 2733
wife/attorney. The documents include numerous letters writ-
ten by Griffin while he was incarcerated in California state
prison. These letters were sent in envelopes marked “Confi-
dential” and were addressed to Pamela Griffin as an “Attor-
ney at Law.” The magistrate judge appointed a special master
to review the letters. The special master redacted all letters
and portions of letters protected by the attorney-client privi-
lege and the work-product doctrine. The special master then
prepared to turn over to the government those letters and por-
tions of letters not covered by either the attorney-client privi-
lege or the work-product doctrine.
Griffin moved to prevent these redacted materials from
being turned over to the government. He did not object to the
special master’s conclusion that they were not protected by
the attorney-client privilege or the work-product doctrine.
Rather, he contended that they were protected by the marital
communications privilege. The special master recommended
that the motion be denied. She concluded that Griffin had vio-
lated prison regulations by including non-legal, personal com-
munications in letters designated as confidential attorney-
client correspondence. The district court denied Griffin’s
motion, but on the different ground that the marital communi-
cations privilege “generally” extends “only to the use of mari-
tal communications as evidence in judicial or grand jury
proceedings.” Griffin appealed the district court’s order deny-
ing his motion and directing that the redacted letters be turned
over to the office of the United States Attorney. The order has
been stayed, and Griffin has remained incarcerated on an
unrelated state court conviction, during the pendency of this
appeal.
II. Discussion
A. Jurisdiction
This court generally has jurisdiction to review only “ap-
peals from all final decisions of the district courts.” 28 U.S.C.
2734 UNITED STATES v. GRIFFIN
§ 1291. The Supreme Court has cautioned that “the delays
and disruptions attendant upon intermediate appeal are espe-
cially inimical to the effective and fair administration of the
criminal law.” DiBella v. United States, 369 U.S. 121, 126
(1962). The district court’s pretrial order is not a final deci-
sion under § 1291 because it does not “end[ ] the litigation on
the merits and leave[ ] nothing for the court to do but execute
the judgment.” Van Cauwenberghe v. Biard, 486 U.S. 517,
521 (1988) (internal quotation marks omitted). However, we
hold that the order is immediately appealable under either the
collateral order doctrine or the Perlman rule.
1. Collateral Order Doctrine
[1] In Cohen v. Beneficial Industrial Loan Corp., 337 U.S.
541, 546-47 (1949), the Supreme Court held that a “small
class” of pretrial decisions are appealable collateral orders.
Under Cohen, an interlocutory decision is appealable as a
“collateral order” when it “(1) conclusively determine[s] the
disputed question, (2) resolve[s] an important issue com-
pletely separate from the merits of the action, and (3) is effec-
tively unreviewable on appeal from a final judgment.” Sell v.
United States, 539 U.S. 166, 176 (2003) (internal quotation
marks omitted). Courts interpret the collateral order doctrine
strictly in criminal cases because of “the compelling interest
in prompt trials[.]” United States v. Austin, 416 F.3d 1016,
1020 (9th Cir. 2005) (quoting Flanagan v. United States, 465
U.S. 259, 265 (1984)) (alteration in original). We conclude
that Griffin’s appeal satisfies the collateral order doctrine.
[2] First, the district court’s order “conclusively deter-
mine[s] the disputed question” whether the government is
entitled to read the communications between Griffin and his
wife for which the privilege had been claimed. Further, the
issue of privilege has been “fully developed” in two rounds of
briefing before the special master and the district court. Aus-
tin, 416 F.3d at 1020. Although the district court’s order
leaves open the possibility of Griffin’s raising an evidentiary
UNITED STATES v. GRIFFIN 2735
objection in future judicial proceedings, the disputed question
before us is whether the government may read the letters. It
is not whether it may use them as evidence in a judicial pro-
ceeding. Griffin has therefore satisfied the first Cohen
requirement.
[3] Second, appellate review would resolve an important
issue “completely separate from the merits of the action.” We
have held that claims of attorney-client and joint defense priv-
ilege qualify as “important” issues under Cohen. Id. at 1021.
The marital communications privilege is designed to “pro-
tect[ ] . . . marital confidences, regarded as so essential to the
preservation of the marriage relationship as to outweigh the
disadvantages to the administration of justice which the privi-
lege entails.” Wolfle v. United States, 291 U.S. 7, 14 (1934).
Griffin’s privilege claim does not involve “considerations
enmeshed in the merits of the dispute” and would not “affect
. . . or be affected by” the decision on the merits in his crimi-
nal trial. Midland Asphalt Corp. v. United States, 489 U.S.
794, 800 (1989) (internal quotation marks and emphasis omit-
ted).
Griffin’s “privilege claim is independent of . . . criminal
liability” because he does not challenge the merits of the
charges against him in this appeal. Austin, 416 F.3d at 1021.
In addition, Griffin’s claim that the marital communications
privilege precludes the disclosure of his letters “does not
require a showing of prejudice to the defense as a necessary
element that can be adequately reviewed only after the con-
clusion” of his criminal trial. Id. (holding that no showing of
prejudice is required in review of district court order finding
joint defense privilege inapplicable to certain conversations).
Griffin thus has satisfied Cohen’s second requirement.
[4] Third, if we decline to hear Griffin’s appeal at this time,
and if he is correct in his assertion of privilege, by the time
of trial he will have suffered “the very harm that he seeks to
avoid,” Sell, 539 U.S. at 176-77, namely erroneous disclosure
2736 UNITED STATES v. GRIFFIN
of privileged material. The Supreme Court has stated that “re-
versal of the conviction and . . . the provision of a new trial
free of prejudicial error normally are adequate means of vin-
dicating the constitutional rights of the accused.” United
States v. Hollywood Motor Car Co., 458 U.S. 263, 268 (1982)
(per curiam). Collateral orders are therefore limited to those
situations where the right asserted is “one that must be upheld
prior to trial if it is to be enjoyed at all,” id. at 270, or “when
the practical effect of the order will be irreparable by any sub-
sequent appeal.” DiBella, 369 U.S. at 126.
[5] We have previously invoked the collateral order doc-
trine to review pretrial orders that conclusively resolved
important issues involving claims of privilege in habeas cor-
pus cases. In Bittaker v. Woodford, 331 F.3d 715, 717 (9th
Cir. 2003) (en banc), the district court had entered an interloc-
utory protective order holding that a habeas petitioner who
had brought an ineffective assistance of counsel claim had not
thereby waived his attorney-client privilege in the event his
petition was successful and he was later brought to trial in
state court on the same criminal charges. We held that we had
jurisdiction to review that order. Id. at 717-18; see also
Osband v. Woodford, 290 F.3d 1036, 1039-41 (9th Cir. 2002);
Wharton v. Calderon, 127 F.3d 1201, 1203-04 (9th Cir.
1997). In this case, as in Bittaker, the defendant has raised
“specific privilege claims,” and there exists a “real possibility
. . . that privileged information would be irreparably leaked”
to the government if it turns out that the district court erred.
Austin, 416 F.3d at 1023 (describing Bittaker). As in Bittaker,
Griffin has shown a “real possibility” that he will be irrepara-
bly harmed by the disclosure of these letters pursuant to the
district court’s order. Griffin has therefore satisfied the third
and final Cohen requirement.
2. The Perlman Rule
[6] The Supreme Court’s decision in Perlman v. United
States, 247 U.S. 7 (1918), provides an alternative jurisdic-
UNITED STATES v. GRIFFIN 2737
tional basis for reviewing the district court’s interlocutory
order. In Perlman, the Supreme Court held that it had jurisdic-
tion to review a district court order permitting the United
States Attorney to obtain Perlman’s personal documents,
which had been deposited with the clerk of the court. Id. at
13. The Court rejected the government’s contention that the
order was not a final decision for purposes of appeal. It held
that Perlman, who “was powerless to avert the mischief of the
order,” should not be required to “accept its incidence and
seek a remedy at some other time and in some other way.” Id.
We have interpreted Perlman to mean that a discovery order
directed at a “disinterested third-party custodian of privileged
documents” is immediately appealable because “the third
party, presumably lacking a sufficient stake in the proceeding,
would most likely produce the documents rather than submit
to a contempt citation.” Austin, 416 F.3d at 1024; see also
United States v. Amlani, 169 F.3d 1189, 1192 (9th Cir. 1999)
(same); United States v. Doe (In re Grand Jury Proceedings
Grand Jury No 97-11-8), 162 F.3d 554, 555 n.2 (9th Cir.
1998) (same).
[7] The district court order in this case is directed at the
special master, a disinterested third-party custodian of alleg-
edly privileged documents. The special master, who has no
personal stake in the proceedings, cannot be expected to flout
the district court’s order and risk a contempt citation to facili-
tate an immediate appeal for Griffin’s benefit. Therefore, in
the alternative, we hold that we may review the district
court’s interlocutory order under the Perlman rule.
B. Standard of Review
Griffin appeals a legal determination of the district court.
We review de novo the district court’s legal conclusions.
United States v. Montgomery, 384 F.3d 1050, 1056 (9th Cir.
2004).
2738 UNITED STATES v. GRIFFIN
C. Marital Communications Privilege
[8] Federal Rule of Evidence 501 provides that, except as
otherwise required by the Constitution, federal statute, or
Supreme Court rule, “the privilege of a witness . . . shall be
governed by the principles of the common law as they may
be interpreted by the courts of the United States in the light
of reason and experience.” Fed. R. Evid. 501. Partly based on
Rule 501, federal courts recognize a marital communications
privilege that exists to “protect[ ] the integrity of marriages
and ensur[e] that spouses freely communicate with one anoth-
er.” United States v. White, 974 F.2d 1135, 1138 (9th Cir.
1992). The privilege covers (1) “only . . . words or acts
intended as communication to the other spouse,” (2) “only
those communications made during a valid marriage,” and (3)
“only . . . those marital communications which are confiden-
tial.” United States v. Marashi, 913 F.2d 724, 729-30 (9th Cir.
1990). At least one federal court has recognized a marital
communications privilege that extends beyond the evidentiary
compass of Rule 501. See SEC v. Lavin, 111 F.3d 921 (D.C.
Cir. 1997).
There are two marital privileges recognized by the federal
common law. The first, usually called the “adverse spousal
testimony” privilege, allows a spouse to refuse to testify
adversely to his or her spouse. Trammel v. United States, 445
U.S. 40, 53 (1980); Lavin, 111 F.3d at 925. The second, usu-
ally called the “marital communications” privilege, protects
from disclosure private communications between spouses.
Blau v. United States, 340 U.S. 332, 333 (1951); Wolfle, 291
U.S. at 13; Lavin, 111 F.3d at 925. It is the second that is at
issue in this case.
Griffin contends that the marital communications privilege
is not merely a privilege protecting against the introduction of
evidence at trial or before the grand jury. He contends that it
is a broader privilege, protecting against disclosure of record-
ings or documents containing confidential marital communi-
UNITED STATES v. GRIFFIN 2739
cations to an adverse party during an investigation, whether
or not those recordings or documents are eventually intro-
duced into evidence. The primary decision supporting Grif-
fin’s argument is SEC v. Lavin, in which the D.C. Circuit
addressed an attempt by a married couple to quash a Securi-
ties and Exchange Commission’s (“SEC”) subpoena requiring
disclosure of tape recordings of conversations between them.
111 F.3d at 923. The SEC issued its subpoena as part of an
ongoing investigation of fraudulent sales practices. Id. The
conversations between an employee of a securities firm and
his wife had been recorded by the employer in the ordinary
course of business. Id. at 923-24. The D.C. Circuit held that
if the conversations had been confidential they were protected
by the marital communications privilege from compelled dis-
closure to the SEC during its investigation. Id. at 925, 933-34;
see also Kasza v. Browner, 133 F.3d 1159, 1176, 1179-80
(9th Cir. 1998) (Tashima, J., concurring) (“These privileges
[including the marital communication privilege] exist not
because we fear the impact that certain kinds of information
might have on a trial. Rather, we are motivated by a more
general social policy goal of keeping certain kinds of informa-
tion secret. Secret from the court. Secret from the jury. Secret
from the world.”); cf. Hugle v. United States (In re Grand
Jury Investigation of Hugle), 754 F.2d 863, 866 (9th Cir.
1985) (“The protective order sought by [Hugle] extended
beyond compelled grand jury testimony and included the
request that the Government and its investigators be enjoined
from interrogating the wife. The privilege relates only to testi-
mony in judicial or grand jury proceedings, and our opinion
is limited accordingly.”).
We will assume, without deciding, for purposes of our
opinion that Lavin correctly describes the scope of the marital
communications privilege. That is, we will assume that a
recording or document containing a confidential marital com-
munication is protected from disclosure to an adverse party
during an investigation. Nevertheless, we hold in the circum-
stances of this case that Griffin cannot claim the privilege.
2740 UNITED STATES v. GRIFFIN
It is common ground between the parties that if Griffin had
sent a letter to his wife not containing any privileged attorney-
client or work-product material, prison authorities would have
had the right to read the letter. There is no free-standing mari-
tal communications privilege, under either federal or state
law, allowing a California prisoner to send confidential letters
from prison to his or her spouse. The question in this case is
whether communications between Griffin and his wife that
are protected by neither the attorney-client nor the work-
product doctrine, and that would not be protected by the mari-
tal communications privilege standing alone, are protected by
the marital communications privilege merely because they are
placed in an envelope on which Griffin wrote “Attorney at
Law.” We think they are not.
[9] California law nowhere provides that an inmate may
correspond confidentially with his or her spouse. See Cal.
Penal Code § 2601(b). California regulations provide that out-
going nonconfidential mail may be read by prison authorities,
as follows:
All nonconfidential inmate mail is subject to being
read in its entirety or in part by designated employ-
ees of the facility before it is mailed for or delivered
to an inmate.
Cal. Code Regs. tit. 15, § 3138(a). The regulations further
provide that an inmate may not use confidential mail to pro-
tect nonconfidential correspondence from scrutiny:
(b) Confidential correspondence is a right guaran-
teed by law. Using the means of confidential corre-
spondence for personal non-business
correspondence, the transmission of contraband
items, or the smuggling of letters and other commu-
nications to be forwarded to persons not listed in
subsection (c) is an abuse of this right and such
UNITED STATES v. GRIFFIN 2741
proven abuse may be subject to disciplinary action
....
(c) Persons . . . with whom inmates may corre-
spond confidentially include:
...
(6) An attorney at law listed with a state
bar association.
Cal. Code Regs. tit. 15, § 3141(b), (c) (emphasis added).
[10] Griffin does not argue that the material he seeks to
protect under the marital communications privilege is some-
thing other than “personal non-business correspondence”
within the meaning of § 3141(b). Under these circumstances,
we hold that Griffin has no right to protect from disclosure to
the government as privileged marital communications those
portions of his letters to his wife/attorney that were improp-
erly included in the envelopes on which he wrote “Attorney
at Law.”
Conclusion
For the foregoing reasons, we hold that we have appellate
jurisdiction under both the collateral order doctrine and the
Perlman rule. We affirm the order of the district court requir-
ing the special master to deliver the redacted letters and por-
tions of letters from Griffin to his wife that are not protected
by either the attorney-client privilege or the work-product
doctrine.
AFFIRMED.