United States v. Carter

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,
v. Nos. 20-3038, 20-3039,
20-3040, 20-3043
KARL CARTER,
Defendant.
------------------------------
DAVID PAXTON ZABEL; SHERI
CATANIA; KIM I. FLANNIGAN;
TERRA D. MOREHEAD,
Objectors – Appellants,
v.
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)
_________________________________
Trevor C. Wohlford, Morris Laing Evans Brock & Kennedy Chtd, Topeka,
Kansas, on behalf of Objector-Appellants.
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.
_________________________________
The four appellants—Mr. David Zabel, Ms. Sheri Catania, Ms. Kim
Flannigan, and Ms. Terra Morehead—are Assistant United States Attorneys
(AUSAs) for the District of Kansas who testified in court about practices
of the United States Attorney’s Office (USAO). At the close of the
proceeding, the district court made statements reflecting negatively on the
four AUSAs. They appeal, arguing that the district court deprived them of
due process.
We dismiss the appeals for lack of appellate standing: As fact
witnesses, the four AUSAs lack a particularized and significant stake in
the appeal.
I. The four AUSAs participated in the proceeding only as fact
witnesses.
This appeal arose from a criminal case, United States v. Black, et al.
In that case, the government investigated a suspected drug conspiracy
2
among detainees and employees at a detention facility in Kansas. The
government ultimately charged six individuals.
After charges were lodged, the district court learned that a prosecutor
(E.T.) had obtained recordings of conversations between detainees and
their attorneys. These recordings included soundless videos of meetings
and audio recordings of telephone calls.
The Black defendants moved for return of the recordings on the
ground that they contained privileged communications between attorneys
and their clients. The motions triggered a lengthy investigation into the
USAO’s possession of recordings containing attorney-client
communications.
For the investigation, the district court appointed a Special Master,
who conducted the inquiry in three phases. Phase I addressed the
feasibility of separating attorney-client communications from other
recordings in the USAO’s possession. In Phase II, the Special Master
culled the recordings of attorney-client communications. Phase III
involved an investigation into
the actions and conduct of the government, the USAO attorneys
and staff, and the participating investigative agencies . . . in
procuring, obtaining and perhaps using video and audio
recordings of attorney-client meetings and phone calls at [the
detention facility].
Joint App’x vol. 5, at 981. In Phase III, the four AUSAs testified as fact
witnesses.
3
II. The district court made statements reflecting negatively on the
four AUSAs.
When Phase III was complete, the district court made negative
statements about the four AUSAs. They rely on these statements for
appellate standing.
Some of the statements reflected generally on attorneys in the office:
For years, prosecutors in the Kansas City division had
received, or knew others had received, attorney-client calls when
they made a general request for all of the detainee’s calls from
[the detention facility]. . . . There is also circumstantial evidence
that prosecutors, both individually and collectively, were aware
or should have been aware that a general request for detainee
calls at [the detention facility] might well yield attorney-client
calls.
Joint App’x vol. 5, at 1071.
The court also referred to each of the four AUSAs. For example, the
district court recited a former supervisor’s testimony about Ms. Morehead,
Ms. Flannigan, Mr. Zabel, and Ms. Catania:
[The former supervisor] testified that during his tenure, some of
the Kansas City prosecutors engaged in heavy-handed, unfair
prosecutorial practices, including discovery practices such as
late disclosure of Brady and Giglio information and evidence
relevant to sentencing issues, and were “extremely oppositional”
to management’s attempts to adopt standard discovery policies
in Kansas City that were consistent with how discovery was
handled in the Topeka and Wichita offices. [The former
supervisor] identified Morehead, [S.R.], Catania, Flannigan, and
Zabel as most resistant to management’s attempts to adopt
policies addressing abusive prosecutorial practices in discovery,
retaliatory use of § 851 sentencing enhancements, abusive
charging practices in drug cases, and “bait and switch” § 5K1.1
agreements, all of which [the former supervisor] testified
“reeked of ambush prosecution.”
4
Id. at 1087 (footnotes omitted).
The district court also discussed Mr. Zabel’s possible knowledge of
E.T.’s use of attorney-client calls in another case (United States v.
Herrera-Zamora), where Mr. Zabel had served as lead counsel:
Sara Gardner, a contract interpreter, testified that [E.T.] asked
her to listen to and translate the recordings [of attorney-client
calls]. Gardner stated that [E.T.] also asked her to come to the
USAO during trial to listen to and provide oral summaries of
conversations between Herrera-Zamora and [defense counsel] to
learn defense strategy and so [E.T.] and Zabel could impeach the
defendant should he testify in his defense.
Id. at 1067–68. Mr. Zabel denied knowledge of E.T.’s alleged misconduct,
but the court did not find him credible:
Zabel denies any knowledge that [E.T.] listened to Herrera-
Zamora’s and [defense counsel’s] calls before [E.T.]’s admission
on May 10, 2017. Zabel also claims he was unaware that [E.T.]
asked Gardner to listen to and prepare oral summaries of the
attorney-client conversations before trial. As lead counsel on the
case, it defies logic that Zabel did not know what [E.T.] was up
to, especially in light of [E.T.] and Gardner’s contrary
testimony. The Court finds Zabel’s credibility lacking.
Id. at 1068 n.355.
In addition, the district court referred to Ms. Catania and Ms.
Morehead, stating that they had received many recordings of attorney-
client calls:
AUSA Morehead denied any awareness of attorney-client calls.
[An analyst’s] research revealed that between May 24, 2013 and
September 27, 2016, Morehead requested calls at least 33 times
for 28 different defendants. In at least nine of those cases,
attorney-client calls were recorded. Yet Morehead never
5
excluded any attorney numbers from her requests. Likewise,
AUSA Catania testified that she had never encountered any
attorney-client calls. [The] partial analysis showed that Catania
received calls of 15 defendants between the period of June 28,
2013 to July 17, 2015, including attorney-client calls in at least
six of those cases, without excluding any attorney numbers from
her requests. And records “voluntarily” produced by the USAO
in January 2019 showed that Catania obtained 76 attorney-client
calls in the [United States v.] Phommaseng case.
Id. at 1075–76 (footnotes omitted).
The court also referred to actions by Ms. Flannigan and E.T. in
prosecuting United States v. Dertinger. Id. at 1041–50. In that case,
defense counsel testified that
 she had been accused by E.T. and Ms. Flannigan of sharing a
confidential document with the defendant and
 Ms. Flannigan had said that an agent was watching recordings
of defense counsel’s meetings to see if she had passed the
confidential document to the defendant.
The district court credited defense counsel’s testimony and found that Ms.
Flannigan had lacked credibility when denying knowledge of the
recordings:
[E.T.] and Flannigan later denied knowing whether there
were video recordings of the attorney visitation rooms, denied
threatening [defense counsel], and denied directing [an agent] to
look for the attorney-client video. Instead, they claimed that [the
agent] was going to merely view the video of the residential pod
to see who Dertinger talked to immediately after his meeting
with [defense counsel] and how Dertinger and others were acting
. . . .
None of this testimony is credible.
6
Id. at 1045, 1041–50 (footnotes omitted). 1
III. The four AUSAs lack appellate standing.
Appellate standing isn’t triggered by the district court’s statements
about the four AUSAs.
A. Nonparty appellants must show appellate standing.
Under Article III of the U.S. Constitution, individuals can appeal
only if they have appellate standing. Sprint Nextel Corp. v. Middle Man,
Inc., 822 F.3d 524, 528 (10th Cir. 2016). Appellate standing is restricted to
parties “in the absence of most extraordinary circumstances.” Coffey v
Whirlpool Corp., 591 F.2d 618, 619 (10th Cir. 1979) (per curiam). The
circumstances may trigger appellate standing when nonparties show (1) “a
particularized and significant stake in the appeal” and (2) cause for their
failure to intervene in district court. United States v. Osage Wind, LLC,
871 F.3d 1078, 1084, 1086 (10th Cir. 2017); see Abeyta v. City of
Albuquerque, 664 F.3d 792, 795–97 (10th Cir. 2011) (concluding that the
Court lacked jurisdiction because the appellant was not a party and could
have intervened in a prior proceeding but declined to do so).
1
The four AUSAs also assert that the district court “accuse[d] [them]
of not properly responding to the Black litigation hold.” Appellants’
Opening Br. at 18. But we do not address this assertion because the AUSAs
have not provided record citations or developed a related argument. See
Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1249 (10th Cir. 2015).
7
B. Attorneys have appellate standing only when they are
directly aggrieved.
The four AUSAs urge a particularized, significant stake. For this
argument, the AUSAs point to three Tenth Circuit opinions recognizing
that attorneys sometimes have a particularized and significant stake in an
appeal: Weeks v. Independent Sch. Dist. No. I-89 of Okla. City, Okla., Bd.
of Educ., 230 F.3d 1201 (10th Cir. 2000); Teaford v. Ford Motor Co., 338
F.3d 1179 (10th Cir. 2003); and Butler v. Biocore Med. Techs., Inc., 348
F.3d 1163 (10th Cir. 2003).
Under these opinions, attorneys have standing to appeal only when
they are “directly aggrieve[d]” from an injury “in the legal sense.” Butler,
348 F.3d at 1167–68 (quoting Weeks, 230 F.3d at 1207; United States v.
Gonzales, 344 F.3d 1036, 1039 (10th Cir. 2003)). Attorneys may be
directly aggrieved when they are the “specific object[s] of the challenged
order.” Frank v. Crawley Petroleum Corp., No. 20-6018, slip op. at 7, ___
F.3d ___ (10th Cir. Mar. 29, 2021). Attorneys may be the specific objects of
orders
 disqualifying attorneys or imposing sanctions (Weeks, 230 F.3d
at 1207–08),
 finding misconduct even in the absence of sanctions (Butler,
348 F.3d at 1168), or
8
 restricting the ability to obtain clients and file suit (Frank, No.
20-6018, slip op. at 8). 2
These types of orders may trigger appellate standing because “damage to
an attorney’s professional reputation is a cognizable and legally sufficient
injury.” Butler, 348 F.3d at 1168.
An example exists in Butler, where the attorney had standing to
appeal because the district court had
 “made specific findings of fact regarding [the attorney’s]
misconduct and concluded that he had violated” two state ethical
standards by repeatedly violating procedural rules and
 mailed the order “to every court where [the attorney] had been
admitted to practice.”
Butler, 348 F.3d at 1165–67. We reasoned that the findings of misconduct
and mailing of the order had directly aggrieved the attorney by injuring
him in a “legal sense.” Id. at 1167, 1169 (quoting Gonzales, 344 F.3d at
1039).
The AUSAs liken this case to Butler. But in the absence of direct
restrictions on an attorney (like orders disqualifying, sanctioning, or
restricting the attorney’s practice), a finding of misconduct is necessary
for attorney standing. “[E]ven the broadest understanding of what
constitutes an appealable sanction requires a finding of misconduct,”
Teaford, 338 F.3d at 1182–83, and an appeal will not lie from “every
2
The AUSAs do not argue that the order restricted their ability to
obtain clients or to sue.
9
negative comment or observation from a judge’s pen about an attorney’s
conduct or performance . . . .” Butler, 348 F.3d at 1168 (quoting Gonzales,
344 F.3d at 1047 (Baldock, J. dissenting)).
We addressed the necessity of a misconduct finding in Teaford v.
Ford Motor Co., 338 F.3d 1179 (10th Cir. 2003). There the district court
had referred a misconduct matter to the state bar association, but the court
did not make any findings of misconduct. Id. at 1180. Given the absence of
a finding of misconduct, we dismissed the attorney’s appeal for lack of
standing:
To be sure, a referral to a disciplinary board, even
unaccompanied by specific findings, may imply some level of
judicial disapproval of the attorney’s conduct and may affect the
attorney’s reputation. However, the judgment implicit in such a
letter is below the level of a censure or specific finding of
misconduct. Rather, the letter amounts to a suggestion that a
violation of rules of conduct may have occurred, leaving further
consideration, investigation, and judgment to the disciplinary
board. Because the district judge’s referral to the Oklahoma Bar
Association is neither an implicit nor an explicit finding of
misconduct, it is not an appealable sanction.
Id. at 1182.
C. The district court’s statements didn’t directly aggrieve the
four AUSAs.
The AUSAs rely on our attorney-standing cases, urging appellate
standing based on damage to professional reputations. But reliance on
these cases is misplaced. The AUSAs participated only as fact witnesses;
they weren’t parties or legal representatives for the parties. The AUSAs
10
thus differed from the attorneys in Butler, Weeks, and Frank; in these
cases, the attorneys had participated in the underlying litigation as
advocates. 3 In addition, the district court didn’t find misconduct by the
four AUSAs. The court instead addressed their credibility, commented
generally about prosecutors in the office, and recited particular testimony.
Statements about the AUSAs’ credibility. The four AUSAs claim
standing based on the district court’s adverse findings on credibility.
Despite the importance of credibility to the AUSAs, their participation as
fact witnesses differs fundamentally from their typical role as advocates.
In the AUSA’s role as fact witnesses, an adverse finding on
credibility would not amount to a finding of misconduct. See United States
v. El-Mezain, 664 F.3d 467, 579 (5th Cir. 2011) (concluding that a finding
of “a complete lack of candor” was not appealable because the district
court did not “expressly conclude that [the attorney had] violated a legal or
ethical duty or rule”). Given the lack of a finding of misconduct, treating
the district court’s credibility assessment as an appealable order would
create a “stunning expansion of standing.” Grochocinski v. Mayer Brown
Rowe & Maw, LLP, 719 F.3d 785, 789 n.10 (7th Cir. 2013); see also In re
3
Because the AUSAs rely entirely on our attorney-standing cases, we
need not address appellate standing of fact witnesses to challenge limits on
their compensation. See, e.g., United States v. Tippett, 975 F.2d 713, 718
(10th Cir. 1992); Dietrich v. King Res. Co., 596 F.2d 422, 424 (10th Cir.
1979).
11
Trans Union Corp. Priv. Litig., 629 F.3d 741, 749 (7th Cir. 2011)
(concluding that a district judge’s unwarranted criticism of an attorney is
not an appealable order).
General statement about Kansas prosecutors. The four AUSAs also
point to a general statement about Kansas prosecutors’ receipt or
knowledge of others’ receipt of recordings involving attorney-client calls.
Joint App’x vol. 5, at 1071. But this general statement did not refer to any
of the four AUSAs.
Recitation of a former supervisor’s testimony. In addition, the four
AUSAs point to the district court’s recitation of a former supervisor’s
testimony about their “prosecutorial practices.” But this recitation did not
endorse the testimony. Rather, the court simply recited the former
supervisor’s testimony about the four AUSAs’ “prosecutorial practices.” 4
Statements about Mr. Zabel. Mr. Zabel argues that when the court
questioned his denial of knowledge of E.T.’s alleged misconduct, the court
was implying that he and E.T. had done the same thing. Oral Argument at
1:17:30–1:18:58. We disagree. The district court did not find or imply that
Mr. Zabel had listened to attorney-client conversations, asked anyone to
listen to the conversations, or knowingly assisted anyone in listening to the
4
At oral argument, counsel for the four AUSAs conceded that the
district court had merely recited the testimony without making any factual
findings. Oral Argument at 1:13:48–1:14:21.
12
conversations. The court said only that it didn’t believe Mr. Zabel when he
denied knowing of a subordinate’s misconduct. That adverse credibility
determination did not constitute or imply a finding of misconduct. See pp.
11–12, above.
Statements about Ms. Catania and Ms. Morehead. Ms. Catania and
Ms. Morehead rely on similar statements. The district court found that the
two AUSAs had acquired recordings of attorney-client calls after making
general requests for call recordings to the detention facility. Joint App’x
vol. 5, at 1075–76. Based in part on this acquisition of recordings, the
district court found “that the [two AUSAs] had both individual and
collective knowledge that attorney-client calls were available . . . .” Id. at
1076. But the district court did not find that Ms. Catania or Ms. Morehead
had listened to attorney-client recordings, purposefully obtained them, or
knew that they had the recordings. Id. at 1075–76.
The court not only declined to make these findings but also
acknowledged that Ms. Morehead and Ms. Catania had denied awareness of
any attorney-client calls: “AUSA Morehead denied any awareness of
attorney-client calls,” and “AUSA Catania testified that she had never
encountered any attorney-client calls.” Id. at 1075. The district court thus
did not find or imply misconduct by Ms. Catania or Ms. Morehead.
Statements about Ms. Flannigan. The district court found that Ms.
Flannigan had lacked credibility when testifying about her knowledge of
13
issues in Dertinger. Id. at 1045. But an adverse credibility determination
does not constitute a finding of misconduct. See pp. 11–12, above.
The district court credited testimony by defense counsel, who stated
that Ms. Flannigan had said that she and E.T. had an agent watching
soundless video recordings of attorney-client meetings. Joint App’x vol. 5,
at 1041–50. But the district court didn’t find or imply that
 this recording showed anything that would be privileged or
 Ms. Flannigan had committed misconduct.
General suggestions of ethical violations. Finally, the four AUSAs
argue generally that the order “suggest[s]” “multiple ethics rule
violations.” Appellants’ Opening Br. at 18. But a “suggestion” does not
amount to a “specific finding of misconduct.” Teaford v. Ford Motor Co.,
338 F.3d 1179, 1181–82 (10th Cir. 2003). 5
* * *
5
The four AUSAs also urge appellate standing based on the district
court’s “indicat[ion] that its findings [would] be applied collaterally in the
raft of § 2255 cases spawned by the [motions for return of property].”
Appellants’ Opening Br. at 22 n.2 (citing Joint App’x vol. 5, at 1150). But
the four AUSAs concede that the “extent to which this will cause personal
harm . . . is not yet clear.” Id. This concession reflects the AUSAs’ failure
to develop an argument involving possible harm in the future. See United
States v. Harman, 297 F.3d 1116, 1131 (10th Cir. 2002) (en banc)
(“Arguments raised in a perfunctory manner, such as in a footnote, are
waived.”).
14
The district court’s statements did not directly aggrieve the four
AUSAs because they had acted only as fact witnesses and the district court
had not found any misconduct.
D. Appellate standing isn’t triggered by the possibility of
collateral consequences.
The AUSAs also urge the potential for “collateral estoppel
consequences in future disciplinary actions” or other litigation. Appellants’
Opening Br. at 22; Appellants’ Reply Br. at 6. For example, counsel for the
four AUSAs represent that they face disciplinary proceedings. Oral
Argument at 1:12:30–1:13:30.
This argument about disciplinary proceedings does not establish
standing for four reasons. First, the district court made no finding of
misconduct. Second, the record contains no mention of disciplinary
proceedings involving the four AUSAs. Third, the AUSAs don’t suggest
that the district court started any disciplinary proceedings. Fourth, even if
the court had made a referral for discipline, it would not confer appellate
standing. See Teaford, 338 F.3d at 1182 (holding that a district court’s
referral to the state bar association was “not an appealable sanction”
because it was “neither an implicit nor an explicit finding of misconduct”).
* * *
The four AUSAs were fact witnesses, the district court did not find
misconduct, and the AUSAs don’t point to any other concrete
15
consequences from the district court’s statements. So the AUSAs lack a
particularized, significant stake in the appeal. Butler, 348 F.3d at 1168. 6 In
the absence of a particularized and significant stake, the AUSAs lack
appellate standing and we dismiss their appeals. 7
6
Because we conclude that the four AUSAs lack a particularized and
significant stake in this appeal, we need not address whether they had
cause for failing to intervene in district court. See Osage Wind, LLC, 871
F.3d at 1086.
7
Because we dismiss the appeals, we need not address the parties’
disputes about the application of Federal Rule of Appellate Procedure 4 or
the merits of the underlying claim for denial of due process.
16