United States v. Cisneros ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v. No. 04-10576
BENJAMIN AUSTIN; FELIPE CISNEROS;  D.C. No.
CR-03-00730-ROS
LORENA CISNEROS; LUIS CISNEROS;
PAUL EPPINGER; RAYMOND LLAMAS; OPINION
ANGEL RIVERA; RICHARD TRUJILLO,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted
April 12, 2005—San Francisco, California
Filed August 2, 2005
Before: Procter Hug, Jr., Warren J. Ferguson, and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Ferguson
9007
9010 UNITED STATES v. AUSTIN
COUNSEL
Mark Fine (argued), Albuquerque, New Mexico; Billy R.
Blackburn (briefed), Albuquerque, New Mexico, for the
defendants-appellants.
Steven C. Yarbrough, Assistant United States Attorney, Phoe-
nix, Arizona, for the plaintiff-appellee.
UNITED STATES v. AUSTIN 9011
OPINION
FERGUSON, Circuit Judge:
Defendants-Appellants Benjamin Austin, Felipe Cisneros,
Lorena Cisneros, Luis Cisneros, Paul Eppinger, Raymond
Llamas, Angel Rivera, and Richard Trujillo (collectively,
“Defendants”) appeal the District Court’s interlocutory order
permitting disclosure of communications that occurred out-
side the presence of counsel between at least one of them and
co-defendant Armando Alvarado (“Alvarado”), who withdrew
from a joint defense agreement (“JDA”) to cooperate with the
Government. We hold that the District Court’s order is not
immediately appealable under the collateral order doctrine,
the Perlman rule, or as a writ of mandamus and, therefore,
dismiss Defendants’ appeal for lack of jurisdiction.
I. BACKGROUND
The United States charged co-defendants in this case with,
among other crimes, conspiracy to commit murder, murder,
and offenses under the Racketeer Influenced and Corrupt
Organizations Act. Shortly after being indicted in the District
of New Mexico in November 2002, co-defendants entered
into a written JDA. The district court approved the JDA and
allowed co-defendants to conduct joint defense meetings. The
Government later dismissed the New Mexico indictment
when it indicted co-defendants on similar charges in the Dis-
trict of Arizona in July 2003. Upon transferring to Arizona,
co-defendants signed an identical JDA, from which Alvarado
eventually withdrew to cooperate with the Government.
On May 26, 2004, the Government moved to strike or clar-
ify certain JDA provisions that could keep Alvarado from dis-
cussing statements that co-defendants made in jail after
signing the New Mexico JDA. Alvarado had been housed in
the same jail pod as Defendants Felipe Cisneros, Luis Cisne-
ros, Paul Eppinger, Raymond Llamas, and Angel Rivera
9012 UNITED STATES v. AUSTIN
while detained in New Mexico from January to November
2003. Alvarado’s attorney had expressed concern to the Gov-
ernment that the JDA could prevent Alvarado from disclosing
any of the co-defendants’ statements, regardless of whether
they occurred outside of an attorney’s presence or not in prep-
aration for a joint defense.
The District Court ruled on August 6, 2004 “that statements
made during discussions between inmates in their cells with
no lawyers present are not covered as confidential communi-
cations under the joint defense privilege.” As a result, the
Court decided not to examine, strike, or clarify any of the
JDA’s provisions in response to the Government’s motion.
Upon Defendants’ motion for reconsideration, the District
Court reviewed Alvarado’s ex parte submissions in camera to
determine if the joint defense privilege protected their disclo-
sure. In its October 5, 2004 order, the Court explained that
courts have generally held that the joint defense privilege
does not cover conversations among defendants made outside
counsel’s presence. The Court also found that, even assuming
that the joint defense privilege could protect these inmate-to-
inmate conversations, the joint defense privilege did not pro-
tect the discussions in question because they were not made
at an attorney’s behest or for the purpose of seeking legal
advice or communicating confidential work product.
Defendants ask that we reverse the District Court’s order
on appeal. In particular, they contend that the District Court
erred in accepting Alvarado’s ex parte submissions as true
without providing Defendants with access to the communica-
tions at issue and, thereby, depriving them of a fair opportu-
nity to assert specific privilege claims as required by United
States v. Martin, 278 F.3d 988 (9th Cir. 2002). In Martin, we
held that “[a] party claiming the [attorney-client] privilege
must identify specific communications and the grounds sup-
porting the privilege as to each piece of evidence over which
privilege is asserted.” Id. at 1000 (citing United States v.
UNITED STATES v. AUSTIN 9013
Osborn, 561 F.2d 1334, 1339 (9th Cir. 1977)). Thus, on
appeal, Defendants seek to obtain access to the communica-
tions at issue. Only with this information in hand, Defendants
argue, can they identify with specificity those conversations
that the joint defense privilege potentially protects. They con-
cede the possibility, however, that none of the communica-
tions in dispute might be protected.
II. JURISDICTION
Generally, we have jurisdiction to review only “appeals
from all final decisions of the district courts . . .” 28 U.S.C.
§ 1291. Since this case involves a pretrial order, the order is
not a final decision appealable under 28 U.S.C. § 1291. See
Van Cauwenberghe v. Biard, 486 U.S. 517, 521-22 (1988)
(stating that a decision is not final for appeal purposes “until
there has been a decision by the district court that ‘ends the
litigation on the merits and leaves nothing for the court to do
but execute the judgment’ ”) (quotation omitted). Defendants
contend, nevertheless, that we have jurisdiction to review the
order under three alternative bases: 1) the collateral order doc-
trine, 2) the Perlman rule, or 3) as a writ of mandamus. None
of these grounds provide this Court with jurisdiction.
A. Collateral Order Doctrine
[1] A small class of orders is final for purposes of 28
U.S.C. § 1291 under the collateral order doctrine set forth in
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546
(1949). The collateral order doctrine is actually considered “a
narrow exception to[,]” United States v. Bird, 359 F.3d 1185,
1188 (9th Cir. 2004), or a “practical construction of[,]” Digi-
tal Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867
(1994) (citing Cohen, 337 U.S. at 546), the final judgment
rule that treats orders by the district court that “finally deter-
mine claims of right separable from, and collateral to, rights
asserted in the action, too important to be denied review and
too independent of the cause itself to require that appellate
9014 UNITED STATES v. AUSTIN
consideration be deferred until the whole case is adjudicated.”
Cohen, 337 U.S. at 546.
In the criminal context, specifically, the Supreme Court has
interpreted the collateral order doctrine “with the utmost
strictness” as a result of “the compelling interest in prompt tri-
als[.]” Flanagan v. United States, 465 U.S. 259, 265 (1984).
“Piecemeal appeals encourage delay, which ‘is fatal to the
vindication of the criminal law.’ ” United States v. Lewis, 368
F.3d 1102, 1104 (9th Cir. 2004), cert. denied, 125 S. Ct. 901
(2005) (quoting United States v. McDonald, 435 U.S. 850,
853-54 (1978)). In fact, “delay may prejudice the prosecu-
tion’s ability to prove its case, increase the cost to society of
maintaining those defendants subject to pretrial detention, and
prolong the period during which defendants released on bail
may commit other crimes.” McDonald, 435 U.S. at 862 (cit-
ing Dickey v. Florida, 398 U.S. 30, 42 (1970) (Brennan, J.,
concurring)). Thus, we interpret the collateral order doctrine
strictly in this case.
[2] For the District Court’s order to fall under the collateral
order doctrine, it must “[1] conclusively determine the dis-
puted question, [2] resolve an important issue completely sep-
arate from the merits of the action, and [3] be effectively
unreviewable on appeal from a final judgment.” Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468-69 (1978) (footnote
and citations omitted). Should the order fail to meet any one
of these requirements, it is not appealable under the collateral
order doctrine. Gulfstream Aerospace Corp. v. Mayacamas
Corp., 485 U.S. 271, 276 (1988).
1.
[3] We first consider if the District Court’s order is “tenta-
tive, informal or incomplete” because “[s]o long as the matter
remains open, unfinished or inconclusive, there may be no
intrusion by appeal.” Cohen, 337 U.S. at 546. The District
Court conclusively decided “that statements made during dis-
UNITED STATES v. AUSTIN 9015
cussions between inmates in their cells with no lawyers pres-
ent are not covered as confidential communications under the
joint defense privilege.” In so doing, it acknowledged that the
issue had been fully developed through extensive briefing and
oral argument, and that no further briefing, argument, or ex
parte hearings with Alvarado or a privilege log were neces-
sary. The first requirement is satisfied.
2.
To meet the second requirement, Defendants must show
that appellate review will “resolve an important issue com-
pletely separate from the merits of the action[.]” Coopers &
Lybrand, 437 U.S. at 468. Resolution of the issue, therefore,
must “not simply [be] a ‘step toward final disposition of the
merits of the case (which would) be merged in final judg-
ment[.]’ ” Abney v. United States, 431 U.S. 651, 658 (1977)
(quoting Cohen, 337 U.S. at 546). For instance, we have held
as unreviewable under the collateral order doctrine a district
court’s denial of a defendant’s motion to dismiss an indict-
ment on the basis of a “fair warning” defense because the
“fair warning claim involve[d] questions inextricably inter-
twined with the question of [defendant’s] alleged guilt.”
Lewis, 368 F.3d at 1106. The evidence that defendant sought
to introduce in support of his fair warning defense, in fact,
“[went] to the heart of his criminal liability.” Id.
[4] Here, the Government concedes that the second require-
ment’s separability prong is satisfied. Defendants’ privilege
claim is independent of their criminal liability; they make no
challenge whatsoever to the merits of the charges against
them. Moreover, the effect of the District Court’s order is
independent because it does not require a showing of preju-
dice to the defense as a necessary element that can be ade-
quately reviewed only after the conclusion of the co-
defendants’ trials. See Flanagan, 465 U.S. at 268-69 (explain-
ing how an order disqualifying counsel, like a denial of a
motion to dismiss on speedy trial grounds, is final but not
9016 UNITED STATES v. AUSTIN
independent of the issues to be tried because the effect of
either decision cannot be appropriately considered until the
trial is complete).
[5] As a separate inquiry, we consider whether Defendants’
privilege claim is “important in Cohen’s sense, as being
weightier than the societal interests advanced by the ordinary
operation of final judgment principles.” Digital Equip. Corp.,
511 U.S. at 879 (internal quotations omitted). This Circuit has
suggested that breaches in confidentiality arising from an
attorney-client relationship present an important issue under
Cohen. See Bittaker v. Woodford, 331 F.3d 715, 718 (9th Cir.
2003), cert. denied, 540 U.S. 1013 (2003). The D.C. Circuit,
relying in part on Upjohn Co. v. United States, 449 U.S. 383,
389 (1981), where the Supreme Court explained that the pur-
pose of the attorney-client privilege “is to encourage full and
frank communication between attorneys and their clients and
thereby promote broader public interests in the observance of
law and administration of justice[,]” has explicitly found that
the attorney-client privilege is an “important issue” under
Cohen. See In re England, 375 F.3d 1169, 1175-76 (D.C. Cir.
2004), cert. denied, 125 S. Ct. 1343 (2005); see also In re
Sealed Case (Medical Records), 381 F.3d 1205, 1209-10
(D.C. Cir. 2004) (comparing the federal psychotherapist privi-
lege to the attorney-client privilege and identifying the former
as “important” under Cohen).
[6] We find that the joint defense privilege also raises an
“important issue” under Cohen because “[it] is an extension
of the attorney-client privilege.” United States v. Henke, 222
F.3d 633, 637 (9th Cir. 2000); see Waller v. Financial Corp.
of America, 828 F.2d 579, 583 n. 7 (9th Cir. 1987). The joint
defense privilege, in fact, protects not only the confidentiality
of communications passing from a party to his or her attorney
but also “from one party to the attorney for another party
where a joint defense effort or strategy has been decided upon
and undertaken by the parties and their respective counsel.”
United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989)
UNITED STATES v. AUSTIN 9017
(citation omitted); see Henke, 222 F.3d at 637 (“A joint
defense agreement establishes an implied attorney-client rela-
tionship with the co-defendant . . .”). As such, the issue before
us is an important issue separate from the merits of the action.
3.
[7] The most contentious issue involves the third require-
ment. The District Court’s order is unreviewable if it “in-
volve[s] an important right which would be ‘lost, probably
irreparably,’ if review had to await final judgment[.]” Abney,
431 U.S. at 658 (quoting Cohen, 337 U.S. at 546). The “right”
at stake in this appeal is ambiguous at best. Defendants claim
that they have a right not to have Alvarado divulge privileged
communications that occurred between them outside coun-
sel’s presence. Yet they cannot point to any specific privi-
leged communications for this Court to review. Defendants
contend, instead, that the District Court erred by not providing
them with access to the communications at issue. Effectively,
the right at stake is the right to access the communications in
dispute for the purpose of determining if the joint defense
privilege protects their disclosure. We look to Supreme Court
precedent, as well as this Circuit’s precedent, to determine if
Defendants’ interest in obtaining this information constitutes
an “important right” warranting immediate review of the Dis-
trict Court’s order.
In Flanagan, the Supreme Court explained that “[it] has
found only three types of pretrial orders in criminal prosecu-
tions to meet the requirements [of the collateral order excep-
tion]. Each type involves ‘an asserted right the legal and
practical value of which would be destroyed if it were not vin-
dicated before trial.’ ” 465 U.S. at 265-66 (internal citation
and quotation omitted). These “important rights” include the
right to pretrial bail, Stack v. Boyle, 342 U.S. 1, 4 (1951)
(explaining that an order denying a motion to reduce fixed
bail as excessive under the Eighth Amendment becomes moot
if review awaits final judgment); the right not to be placed in
9018 UNITED STATES v. AUSTIN
double jeopardy, Abney, 431 U.S. at 660 (stating that “the
rights conferred on a criminal accused by the Double Jeop-
ardy Clause would be significantly undermined if appellate
review of double jeopardy claims were postponed until after
conviction and sentence”); and the right to avoid exposure to
questioning as a Member of Congress on the ground that it
violates the Speech or Debate Clause of the Constitution, Hel-
stoski v. Meanor, 442 U.S. 500, 508 (1979) (concluding that
“if a Member ‘is to avoid exposure to [being questioned for
acts done in either House] and thereby enjoy the full protec-
tion of the Clause, his . . . challenge to the indictment must
be reviewable before . . . exposure [to trial] occurs’ ”) (alter-
ations in original) (quoting and analogizing to Abney, 431
U.S. at 662).
In Flanagan, specifically, the Court found that the order at
issue, an order disqualifying a law firm from its multiple rep-
resentation of four petitioners, was not analogous to any of
the three types of interlocutory orders that the Court had pre-
viously found immediately appealable because the order did
not entail “a right not to be tried.” 465 U.S. at 267. Different
from an order involving a double jeopardy or speech and
debate clause right, “[a]n appellate court’s reversal of a dis-
qualification order would not result in dismissal of the prose-
cution. The prosecution would continue, though only after
long delay.” Id. at 269.
In this Circuit, we have interpreted Supreme Court prece-
dent as limiting review of interlocutory appeals in criminal
cases “to instances . . . where there are statutory or constitu-
tional guarantees against the defendants standing trial.”
United States v. Hickey, 367 F.3d 888, 896 (9th Cir. 2004),
amended by 400 F.3d 658 (9th Cir. 2005). In Hickey, for
example, we held that the collateral order doctrine did not
apply to defendant’s interlocutory appeal because defendant
had failed to make a colorable claim that his constitutional
right against double jeopardy had been violated. Id. at 892. In
United States v. Brandon P., we further held that an immedi-
UNITED STATES v. AUSTIN 9019
ate appeal was unnecessary to vindicate a juvenile’s speedy
trial right because the effect of the delay, not the juvenile’s
treatment, could not be judged until after trial. 387 F.3d 969,
974 (9th Cir. 2004), cert. denied, 125 S. Ct. 2936 (2005). We
concluded, however, that a commitment order under 18
U.S.C. § 4241(d), which involuntarily commits a criminal
defendant to the custody of the Attorney General when the
district court finds him or her incompetent to stand trial on
federal criminal charges, is immediately appealable because
“[it] deprives [a defendant] of his freedom,” and “nothing
could recover for the defendant the time lost during his con-
finement; probably no one could be held liable to him in dam-
ages for the loss of his liberty.” United States v. Friedman,
366 F.3d 975, 979-80 (9th Cir. 2004) (internal citation and
quotation omitted).
Here, Defendants rely almost exclusively on our decision in
Bittaker v. Woodford to contend that their alleged privilege
claim is effectively unreviewable on appeal from final judg-
ment. 331 F.3d 715 (9th Cir. 2003), cert. denied, 540 U.S.
1013 (2003). There, a habeas petitioner raised several
ineffective-assistance-of-counsel claims that required a
waiver of the attorney-client privilege. The district court
entered a protective order, however, precluding use of those
privileged materials for any purpose other than litigating the
habeas petition and barring the State from turning them over
to any other person or office. We ruled that we had jurisdic-
tion to review the State’s interlocutory appeal of the protec-
tive order because review after final judgment would come
too late. If we invalidated the protective order after final judg-
ment, we would not be able to correct Bittaker’s erroneous
disclosure of privileged materials because the cat would have
already been let out of the bag. Bittaker, in fact, “w[ould] suf-
fer serious prejudice during any retrial.” Id. at 718.
[8] This case is readily distinguishable from Bittaker. Bit-
taker involved a non-recurring issue about the validity of the
district court’s protective order. There was no question there
9020 UNITED STATES v. AUSTIN
that the materials at issue were privileged; the question was
whether the disclosure of those materials to prove ineffective
assistance of counsel could put petitioner at risk of having the
State use those materials to re-prosecute him. This case, how-
ever, involves a discovery/privilege-type ruling that is recur-
ring and could cause disruption and delay in the co-
defendants’ trials if immediately appealable. Unlike in Bit-
taker, Defendants have not raised any specific privilege
claims as required by Martin, 278 F.3d at 1000. Indeed, they
concede that the communications at issue might not even be
privileged. The real possibility that existed in Bittaker that
privileged information would be irreparably leaked to the
State simply does not exist in this case. Thus, we cannot
reverse and instruct the District Court to disclose the commu-
nications in question for the sole purpose of allowing Defen-
dants to pick and choose which communications raise suitable
privilege claims.
[9] Moreover, we cannot defy precedent to conclude that
Defendants’ nonexistent privilege claims involve an important
right the legal and practical value of which would be lost if
review had to await final judgment. Defendants’ asserted right
to first obtain information from Alvarado and then raise spe-
cific privilege claims certainly does not rise to the level of an
important right synonymous with a “right not to be tried.”
Flanagan, 465 U.S. at 267. In fact, like in Flanagan, Defen-
dants’ “claim ‘would be largely satisfied by an acquittal
resulting from the prosecution’s failure to carry its burden of
proof.’ ” Id. (quoting McDonald, 435 U.S. at 859) (citation
omitted). This last requirement is not satisfied, thereby leav-
ing this Court without jurisdiction to review the District
Court’s order under the collateral order doctrine.
B. Perlman Rule
[10] In Perlman v. United States, the Supreme Court cre-
ated an exception to the final judgment rule by treating a dis-
covery order (a subpoena) directed at a disinterested third-
UNITED STATES v. AUSTIN 9021
party custodian of privileged documents as immediately
appealable. 247 U.S. 7 (1918). The order was immediately
appealable because the third party, presumably lacking a suf-
ficient stake in the proceeding, would most likely produce the
documents rather than submit to a contempt citation. We dis-
agree with Defendants’ contention that the Perlman rule
applies in this case.
[11] The Perlman rule, indeed, does not provide an alterna-
tive jurisdictional basis to review the District Court’s order
for several reasons. First, there is no discovery order at issue
in this case; should Alvarado refuse to cooperate with the
Government, he faces no risk of being cited for contempt as
in Perlman. Second, Alvarado is not a disinterested third-
party custodian of privileged information; rather, he is an
interested party who wants to cooperate with the Government
to avoid a potential life sentence. Last, Defendants are not,
like Perlman, “powerless to avert the mischief of the order”
(id. at 13); if Defendants were parties to these communica-
tions, they should be able to assert specific privilege claims.
C. Writ of Mandamus
[12] As a last recourse, Defendants contend that we should
review the District Court’s order as a mandamus petition. See
United States v. Amlani, 169 F.3d 1189, 1193 (9th Cir. 1999)
(recognizing that privilege claims justify mandamus review in
certain situations). “In considering an appeal as a mandamus
petition, we review the district court’s actions for clear error.
‘To issue the writ, the court must be firmly convinced that the
district court has erred, and that the petitioner’s right to the
writ is clear and indisputable.’ ” Special Invs., Inc. v. Aero
Air, Inc., 360 F.3d 989, 993 (9th Cir. 2004) (internal citation
and quotation omitted).
In particular, this Court is guided by five factors in decid-
ing whether to grant a writ of mandamus:
9022 UNITED STATES v. AUSTIN
(1) The party seeking the writ has no other adequate
means, such as direct appeal, to attain the relief he
or she desires. (2) The petitioner will be damaged or
prejudiced in a way not correctable on appeal . . . (3)
The district court’s order is clearly erroneous as a
matter of law. (4) The district court’s order is an oft-
repeated error, or manifests a persistent disregard of
the federal rules. (5) The district court’s order raises
new and important problems, or issues of law of first
impression.
Bauman v. United States Dist. Ct., 557 F.2d 650, 654-55 (9th
Cir. 1977) (internal citations omitted). “The applications [sic]
of these factors is by no means precise. There are frequently
questions of degree, and conflicting indicators must often be
balanced.” Amlani, 169 F.3d at 1194 (citations omitted).
[13] Defendants have failed to even attempt to demonstrate
that they meet these requirements. Instead, they merely assert
that we need not find that a petition satisfies all five factors
at once. The Bauman factors do not weigh in favor of granting
the writ in this case. The District Court’s order can be
reviewed on direct appeal after final judgment. Should Defen-
dants raise any specific privilege claims at trial, the District
Court has the power to judge the validity of those claims.
There is further no evidence that the order is an oft-repeated
error or that it raises new and important problems or issues of
first impression. More important, the District Court’s decision
is not clearly erroneous as a matter of law and issuing a writ
of mandamus, therefore, is inappropriate.
III. CONCLUSION
[14] For the foregoing reasons, we dismiss for lack of juris-
diction Defendants’ appeal of the District Court’s order. In so
doing, we do not decide whether the joint defense privilege
ever protects inmate-to-inmate conversations in the absence
of counsel.
DISMISSED.