In Re Search of Electronic Communications

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 14-3752
IN THE MATTER OF THE SEARCH OF ELECTRONIC
COMMUNICATIONS (BOTH SENT AND RECEIVED) IN
THE ACCOUNT OF CHAKAFATTAH@GMAIL.COM AT
INTERNET SERVICE PROVIDER GOOGLE, INC.
Chaka Fattah, Appellant
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-14-mj-00617-001)
District Judge: Honorable Paul S. Diamond
_____________
Argued: January 12, 2015
Before: AMBRO, FUENTES, and ROTH Circuit Judges
(Opinion Filed: September 2, 2015)
Luther E. Weaver III, Esq. ARGUED
Weaver & Associates, P.C.
1525 Locust Street, 14th Floor
Philadelphia, PA 19102
Attorneys for Appellant
Kerry W. Kircher, Esq. ARGUED
United States House of Representatives
Suite 219, Cannon House Office Building
Washington, D.C. 20515
Amicus Attorney Appellant Bipartisan Legal Advisory Group
of the United States House of Representatives
Donald E. Wieand, Jr., Esq.
Stevens & Lee
190 Brodhead Road
Suite 200
Bethlehem, PA 18017
Amicus Attorney Appellant Google Inc
Zane David Memeger, Esq.
Jack Smith, Esq.
Robert A. Zauzmer, Esq. ARGUED
Eric L. Gibson, Esq.
Paul L. Gray, Esq.
United States Attorney’s Office for the Eastern District of
Pennsylvania
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Attorneys for Appellees
2
OPINION OF THE COURT
FUENTES, Circuit Judge.
This case implicates the Speech or Debate Clause of
the United States Constitution.1 The Government obtained a
search warrant to search the email account of Chaka Fattah, a
United States Congressman. Fattah, along with the
“Bipartisan Legal Advisory Group of the United States House
of Representatives” (as amicus curiae), challenged the
unexecuted search warrant in the District Court primarily on
Speech or Debate Clause grounds. Fattah now appeals the
District Court’s order denying his motion to invalidate the
unexecuted search warrant. Because an unexecuted search
warrant is not separate from the merits of the case and is
reviewable on appeal, if a defendant is convicted, it does not
qualify for review under the collateral order doctrine.
Therefore, we lack jurisdiction to review this unexecuted
search warrant and we dismiss Fattah’s claims under the
Speech or Debate Clause.
I. Factual and Procedural Background
A. The Search Warrant
1
The Speech or Debate Clause provides that, “for any Speech
or Debate in either House, [Senators and Representatives]
shall not be questioned in any other Place.” U.S. Const. art. I,
§ 6, cl. 1.
3
Fattah is the subject of a federal grand jury
investigation pending in the Eastern District of Pennsylvania.2
The Department of Justice, the United States Attorney’s
Office for the Eastern District of Pennsylvania, the Federal
Bureau of Investigation, and the Internal Revenue Service are
leading the investigation, which centers on whether Fattah
violated federal criminal laws relating to fraud, extortion, and
bribery.
Fattah maintains an email account hosted by Google,
Inc., known as “Gmail.” Google acts as a repository,
collecting emails sent and received by Gmail account holders
like Fattah. Fattah uses this Gmail account for personal
matters, but he also uses it for official business relating to his
congressional duties.3 For example, Fattah asserts that he
uses his Gmail account to “communicat[e] with members of
Congress regarding legislative matters”; to email “the
schedule and agendas for House Committee meetings and
related congressional sessions”; and to communicate “with
[his] staff regarding legislative matters and discussions and
documents directly relating to proposed legislative matters.”4
Likewise, Fattah claims that he uses his Gmail account to
engage in privileged attorney-client communications with his
legal counsel.
2
Fattah was indicted by a grand jury on July 29, 2015.
3
Each Member of the House of Representatives has an
official email account. Presently, there is no policy in place
mandating that Members solely utilize the official account to
conduct business. [Tr. 28: 18-22].
4
Gov’t Supp. App. 15.
4
In February 2014, the Government served Fattah with
a grand jury subpoena seeking various documents, including
electronic data from his Gmail account. In response, Fattah
turned over some emails but objected to others on the bases of
the Speech or Debate Clause, overbreadth, and relevance.
Several months later, a magistrate judge issued a search
warrant authorizing the FBI to search Fattah’s Gmail account.
The warrant sought essentially the same information as the
grand jury subpoena. Specifically, the search warrant
requested: “For the period of January 1, 2008, through the
present, concerning Google account
[ChakaFattah@gmail.com], all items which constitute
evidence of a criminal violation of 18 U.S.C. §§ 1343, 1344,
1951, and 201.”5
Pursuant to Google policy, Fattah received an email
from Google on June 18, 2014, stating that it had received a
search warrant from the Government seeking electronic data
from his account. Google explained that it would withhold
the documents for seven calendar days, allowing Fattah time
to object to the request in a court of competent jurisdiction.
Fattah filed a motion to intervene and to quash the search
warrant in the Eastern District of Pennsylvania, arguing that
the warrant’s execution would violate the attorney-client
privilege and work-product doctrine, the Fourth Amendment,
and the Speech or Debate Clause.
B. The District Court Opinion
The District Court granted Fattah’s motion to intervene
but denied his motion to quash the search warrant. The Court
5
Gov’t Supp. App. 11.
5
held that the execution of the warrant would not imperil the
attorney-client privilege or the protection afforded by the
work-product doctrine because the Government had
suggested adequate review procedures, which entailed the use
of a “taint team” to review for privileged documents.
Fattah argued that the warrant and affidavit did not
make out probable cause and that the warrant was general and
overbroad. The Court disagreed and additionally noted the
odd procedural posture of the case, observing that Fattah
“ha[d] cited no reported decision” supporting his contention
that he may raise a Fourth Amendment challenge to a warrant
prior to its execution.6 The Court explained that the proper
remedy for an improvident search warrant is a suppression
hearing.
Likewise, the District Court rejected Fattah’s argument
that the warrant would violate the Speech or Debate Clause.
The Court reiterated this Circuit’s standard that the Speech or
Debate Clause secures a privilege of non-use, rather than of
non-disclosure. The Court explained that “even if [Fattah’s]
private emails include a number of privileged documents, the
mere disclosure of those documents [would] not impugn the
Speech or Debate Clause.”7
In the alternative to quashing the search warrant, the
House requested that the Court modify the warrant and allow
Fattah access to the requested records. Denying the House’s
request, the Court opined that “creating special protections for
a Congressman’s private email account would encourage
6
Ohio App. 12.
7
Ohio App. 14.
6
corrupt legislators and their aides to make incriminating
communications through private emails, knowing that they
will be disclosed only with the author’s approval.”8
Fattah also fashioned his motion as a Federal Rule of
Criminal Procedure 41(g) motion, a request for return of
property. Fattah argued that the Government was in
“constructive possession” of his property. The District Court
denied this motion as well, explaining that because the
Government has neither actual nor constructive possession,
Rule 41(g) affords him no legitimate basis for relief.
Following the District Court’s rulings, Fattah filed a
notice of appeal to this Court from the District Court’s order
denying the motion to quash the unexecuted search warrant.
On the same day, Fattah filed a motion to stay the order
pending appeal. The District Court held a hearing on the
motion to stay and subsequently denied the motion.
Thereafter, we granted Fattah’s motion for a status quo order
and for a stay of the District Court’s order pending appeal.
II. Discussion
Although Fattah presents several issues on appeal, we
limit our discussion solely to jurisdiction and the proposed
filtering procedures. Fattah proffers three bases for appellate
jurisdiction: (1) the collateral order doctrine, (2) the Perlman
doctrine, and (3) Federal Rule of Criminal Procedure 41(g).
For the reasons that follow, we conclude that we lack
jurisdiction to consider Fattah’s Speech or Debate Clause
8
Ohio App. 16.
7
claims, but take jurisdiction with respect to his claims
regarding the filtering procedures.9
A. The Collateral Order Doctrine
Fattah first contends that under the collateral order
doctrine, we have appellate jurisdiction. Under 28 U.S.C. §
1291, an immediate appeal may be taken from any final
decision of the district court. “Although ‘final decisions’
typically are ones that trigger the entry of judgment, they also
include a small set of prejudgment orders that are ‘collateral
to’ the merits of an action and ‘too important’ to be denied
immediate review.”10 Under the collateral order doctrine,
however, a prejudgment order is immediately appealable if it:
(1) conclusively determines the disputed question; (2)
9
The House also suggests that jurisdiction to hear Fattah’s
claims may lie under the All Writs Act, as a petition for
mandamus. Fattah, however, has not sought mandamus
relief. Furthermore, mandamus is an extraordinary remedy,
available only where (1) there is “‘no other adequate means to
attain the relief sought;’” (2) the right to issuance of the writ
is “‘clear and indisputable;’” and (3) the issuing court is
“satisfied that ‘the writ is appropriate under the
circumstances.’” In re Pressman-Gutman Co., Inc., 459 F.3d
383, 399 (3d Cir. 2006) (quoting In re Briscoe, 448 F.3d 201,
212 (3d Cir. 2006)). As previously stated, Fattah has the right
to appeal the denial of a motion to suppress if he is convicted.
Because Fattah has an adequate remedy in a suppression
hearing following execution of the warrant, we decline to
grant jurisdiction under this ground.
10
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103
(2009) (citing Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541, 546 (1949)).
8
resolves an important issue completely separate from the
merits of the case; and (3) is effectively unreviewable on
appeal from a final judgment.11 A litigant must satisfy all
three requirements to succeed under the collateral order
doctrine. We narrowly construe this exception, taking into
account that “a party is entitled to a single appeal, to be
deferred until final judgment has been entered, in which
claims of district court error at any stage of the litigation may
be ventilated.”12
Furthermore, the Supreme Court has noted that
application of the collateral order doctrine involves a
categorical inquiry and “[a]s long as the class of claims, taken
as a whole, can be adequately vindicated by other means, the
chance that the litigation at hand might be speeded, or a
particular injustice averted, does not provide a basis for
jurisdiction under § 1291.”13 The Court emphasized, “[t]he
crucial question . . . is not whether an interest is important in
the abstract; it is whether deferring review until final
judgment so imperils the interest as to justify the cost of
allowing immediate appeal of the entire class of relevant
orders.”14
Fattah appeals from the District Court’s order denying
a motion to quash an unexecuted search warrant on Speech or
Debate Clause grounds. He relies on our decision in United
11
Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863,
867 (1994).
12
Id. at 868.
13
Mohawk Indus., Inc., 558 U.S. at 107 (internal quotation
marks and alterations omitted).
14
Id. at 108.
9
States v. McDade where we held that we had jurisdiction to
entertain an appeal regarding a motion to dismiss an
indictment under the Speech or Debate Clause.15 Fattah cites
to our language in McDade stating, “[w]e also have
jurisdiction to review any of the district court’s other rulings
regarding the Speech or Debate Clause that satisfy all of the
requirements of the collateral order doctrine.”16 Notably, we
followed this statement with the caveat that “[o]ur
jurisdiction, however, extends no further,” recognizing the
limits of the collateral order doctrine.17 McDade, however, is
inapplicable because Fattah’s claim under the collateral order
doctrine falters. We review each requirement below.
1. The first prong of the collateral order doctrine
requires us to determine whether the District Court’s order
conclusively determines the disputed issue. Fattah satisfies
the first prong of the test. His motion to quash raised the
issue of whether the search warrant could be executed, and
the District Court conclusively answered that question in the
affirmative. Thus, the order conclusively determined the
disputed issue. Fattah, however, fails to satisfy either the
second or third prongs, dooming his argument.
2. The second inquiry of the collateral order doctrine
asks whether the District Court’s order resolves an important
question completely separate from the merits. Fattah argues
that the Speech or Debate Clause issues are “extremely
important issues” that are separate from the merits of the case.
He contends that because no indictment has been returned,
15
28 F.3d 283 (3d Cir. 1994).
16
Id. at 288.
17
Id.
10
the issue is separate from the merits because there is no
“underlying action.” He is incorrect.
The Supreme Court has defined an “important issue”
as “one involving interests that are ‘weightier than the
societal interests advanced by the ordinary operation of final
judgment principles’ or one that is ‘serious and unsettled.’”18
Moreover, “an issue is important if the interests that would
potentially go unprotected without immediate appellate
review are significant relative to efficiency interests sought to
be advanced by adherence to the final judgment rule.”19
Here, Fattah contends that the Speech or Debate privilege is
one of non-disclosure and that “[t]he district court’s ruling is
one of important constitutional dimensions broader in scope
than just the interest of an individual Congressman, being ‘of
great institutional interest to the House as a whole.’”20
Fattah’s argument, however, misconstrues the term
“important.” We have held that, “[t]he type of ‘important
issue[s]’ that the ‘completely separate from the merits’
requirement encompasses are those that are important in a
jurisprudential sense.’”21 First, as we have previously said,
18
United States v. Wecht, 537 F.3d 222, 230 (3d Cir. 2008)
(quoting Digital Equip. Corp., 511 U.S. at 879; Cohen, 337
U.S. at 547).
19
Pierce v. Blaine, 467 F.3d 362, 370-71 (3d Cir. 2006)
(internal quotation marks and citation omitted).
20
Appellant’s Br. 25 (quoting In re Grand Jury (Eilberg),
587 F.2d 589, 593 (3d Cir. 1978)).
21
Praxis Props., Inc. v. Colonial Sav. Bank, S.L.A., 947 F.2d
49, 54 (3d Cir. 1981) (second alteration in original) (quoting
Nemours Found. v. Manganaro Corp., New England, 878
11
the Speech or Debate privilege, as applied to records, is one
of non-use versus non-disclosure. That is, while the privilege
prohibits evidentiary “use” of records, it does not prohibit
disclosure of records to the Government in the course of an
investigation. Thus, the issue is not unsettled—indeed, this
Court has decisively settled the issue in a manner that
forecloses Fattah’s argument.22
Second, in addition to failing to raise an important
issue, we believe Fattah’s claim is not completely separate
from the merits. The requirements for collateral appeal are
particularly “stringent” in the criminal context because “‘the
delays and disruptions attendant upon intermediate appeal,’
which the rule is designed to avoid, ‘are especially inimical to
the effective and fair administration of the criminal law.’”23
Indeed, the only orders that have been held to fall within the
collateral order doctrine in a criminal action are: orders
denying motions to reduce bail; orders denying motions to
dismiss on double jeopardy grounds; orders denying
immunity under the Speech or Debate Clause; and orders
F.2d 98, 100 (3d Cir. 1989)) (internal quotation marks
omitted).
22
See United States v. Helstoski, 635 F.2d 200, 203 (3d Cir.
1980); In re Grand Jury Investigation (Eilberg), 587 F.2d at
597; In re Grand Jury (Cianfrani), 563 F.2d 577, 584 (3d Cir.
1977).
23
Abney v. United States, 431 U.S. 651, 657 (1977) (quoting
Di Bella v. United States, 369 U.S. 121, 126 (1962)).
12
directing defendants to be medicated against their will to
render them competent to stand trial.24
Unlike these orders, which “finally resolve issues that
are separate from guilt or innocence,”25 a motion to suppress
an unexecuted search warrant may substantially affect the
merits of the case. We have held that “a pretrial ruling on a
suppression motion is not a collateral order under 28 U.S.C. §
1291 because the motion ‘presents an issue that is involved in
and will be part of a criminal prosecution in process at the
time the order is issued.’”26 The same is true of a motion to
quash a warrant. The fruits of a search warrant may become
part of the criminal prosecution. In most cases, the fruits
become part of the evidentiary chain of proof. Therefore, an
order denying a motion to quash an unexecuted search
warrant stands in stark contrast to the orders previously
mentioned, which, for example, challenge the very authority
of the Government to prosecute a defendant.27 Accordingly,
24
See Stack v. Boyle, 342 U.S. 1, 6 (1951); Abney, 431 U.S. at
659; Helstoski v. Meanor, 442 U.S. 500, 506–08 (1979); Sell
v. United States, 539 U.S. 166, 176 (2003).
25
Flanagan v. United States, 465 U.S. 259, 266 (1984).
26
United States v. Williams, 413 F.3d 347, 355 (3d Cir. 2005)
(quoting Di Bella, 369 U.S. at 127).
27
See, e.g., Abney, 431 U.S. at 659 (explaining that “the very
nature of a double jeopardy claim is such that it is collateral
to, and separable from the principal issue at the accused’s
impending criminal trial, i.e., whether or not the accused is
guilty of the offense charged” and instead the claim
“contest[s] the very authority of the Government to hale him
into court to face trial on the charge against him”).
13
Fattah fails to satisfy this requirement of the collateral order
doctrine.
3. The third prong of the collateral order doctrine
focuses on whether the District Court’s order is effectively
unreviewable on appeal. Fattah asserts that the District
Court’s order leaves him with no remedy since it does not
limit the Government’s access to or use of Speech or Debate
Clause documents. First, this argument relies on Fattah’s
misconception that the Speech or Debate Clause provides a
privilege of non-disclosure. Instead, as we discuss further
below, because we have held that it is a privilege of non-use
when applied to documents, the Government is not prohibited
from accessing the documents. In addition, his argument is
plainly belied by our own precedent. In In re Solomon, we
denied a defendant’s motion to suppress an unexecuted search
warrant, holding that the defendant had other available
remedies.28 We explained that the motion to suppress the
search warrant was not effectively unreviewable because the
defendant could move to suppress the evidence, and “[i]f that
motion is denied, and if [he] is convicted, the denial of the
motion to suppress may then be asserted as a ground for
appeal from the final judgment.”29 The same is true here.
Our binding precedent requires us to narrowly
circumscribe the contours of the collateral order doctrine.
And, as the Supreme Court has emphasized, “although the
Court has been asked many times to expand the ‘small class’
of collaterally appealable orders, we have instead kept it
28
465 F.3d 114, 122-23 (3d Cir. 2006).
29
Id. at 122.
14
narrow and selective in its membership.”30 As such, we
decline Fattah’s invitation to expand this discerning
membership to motions to quash unexecuted search warrants.
Because Fattah’s claim is not completely separate from the
merits and is reviewable upon appeal, the collateral order
doctrine is unavailing as a basis for appellate jurisdiction. We
therefore lack jurisdiction under the collateral order doctrine
to entertain this appeal.
B. The Perlman Doctrine
1. The Perlman Doctrine Does Not Provide
Jurisdiction for Fattah’s Speech or Debate Clause
Claims.
Fattah’s claims regarding the Speech or Debate Clause
fare no better under the so-called Perlman doctrine. The
Perlman doctrine refers to the legal principle that a discovery
order aimed at a third party may be immediately appealed on
the theory that the third party will not risk contempt by
refusing to comply.31 Disclosure orders are not final orders
appealable under 28 U.S.C. § 1291. Rather, “[t]o obtain
immediate appellate review, a privilege holder must disobey
the court’s order, be held in contempt, and then appeal the
contempt order,” which is considered a final order.32 The
Supreme Court’s decision in Perlman v. United States
established an exception when the traditional contempt route
is unavailable because the privileged information is controlled
by a disinterested third party who is likely to comply with the
30
Will v. Hallock, 546 U.S. 345, 349-50 (2006).
31
As previously noted, Google, as custodian of the records at
issue, is the third party in this case.
32
In re Grand Jury, 705 F.3d 133, 138 (3d Cir. 2012).
15
request rather than be held in contempt for the sake of an
immediate appeal.33 In these circumstances, a litigant
asserting a legally cognizable privilege may timely appeal an
adverse disclosure order. The reasoning behind Perlman lies
in the inequity of leaving a privilege-holder “powerless to
avert the mischief of the order,” and forcing him to “accept its
incidence and seek a remedy at some other time and in some
other way.”34 Moreover, Perlman “reflected concern that
where the subject of the discovery order (characteristically
the custodian of documents) and the holder of a privilege are
different, the custodian might yield up the documents rather
than face the hazards of contempt, and would thereby destroy
the privilege.”35 The question we address today is whether
Perlman should apply even where Fattah fails to cite a legally
cognizable privilege.
Fattah argues that the Speech or Debate Clause
precludes execution of the search warrant. He contends that
the privilege is one of non-disclosure and that the search
warrant was served on Google, which “is a disinterested third
party which is not likely to permit itself to be placed in
contempt” on his behalf.36 As such, he asserts that his is the
paradigmatic Perlman case, and that he is entitled to
immediately appeal the District Court’s order. We disagree.
33
247 U.S. 7, 12-13 (1918).
34
Id. at 13.
35
In re Flat Glass Antitrust Litig., 288 F.3d 83, 90 n.9 (3d
Cir. 2002) (quoting In re Sealed Case, 141 F.3d 337, 340
(D.C. Cir. 1998)).
36
Appellant’s Br. at 28-29.
16
Fattah urges that our decision in In re Grand Jury is
instructive.37 There, the Government moved to compel a law
firm to provide documentation regarding its representation of
a corporation that was the subject of a federal criminal
investigation. The corporation objected to the subpoenas
served upon the law firm, but the district court granted the
Government’s motions to enforce. The corporation sought an
immediate appeal under the Perlman doctrine predicated on
the attorney-client privilege and work-product doctrine. We
held that the corporation was entitled to immediately appeal
the adverse disclosure order to protect those privileges.38
In this case, there is an important distinction to be
drawn: Fattah fails to cite a legally cognizable privilege.
Indeed, Fattah relies heavily on our case law discussing the
Perlman doctrine in the attorney-client privilege context.39
37
705 F.3d at 133.
38
Id. at 149.
39
See, e.g., In re Grand Jury Subpoena, 745 F.3d 681, 686-87
(3d Cir. 2014) (permitting a client and corporation to
intervene and quash a subpoena directed to their attorney for
testimony under the Perlman doctrine on the basis of the
attorney-client privilege and work-product doctrine); In re
Grand Jury Proceedings (FMC Corp.), 604 F.2d 798, 800-01
(3d Cir. 1979) (permitting a corporation to intervene and
immediately appeal an adverse disclosure order to protect the
attorney-client privilege and work-product doctrine). The
only case Fattah cites to applying the Perlman doctrine in the
context of the Speech or Debate clause is In re Grand Jury
(Cianfrani), 563 F.2d 577 (3d Cir. 1977). That case,
however, is distinguishable. First, the case involved a state
senator who was charged in a federal prosecution. We
17
He fails to cite any precedent discussing Perlman’s
applicability to the Speech or Debate Clause.40 The Speech
or Debate Clause encompasses three main protections, it: (1)
bars civil and criminal liability for “legislative acts”;41 (2)
ultimately held that neither the state nor federal Speech or
Debate Clause privileges extended in such a case. Id. at 580-
82. Second, the case involved a subpoena versus an
unexecuted search warrant. A subpoena, of course, may be
challenged prior to compliance. In stark contrast, a search
warrant is properly challenged after it is executed.
Accordingly, In re Grand Jury (Cianfrani) is of limited utility
to Fattah.
40
For its part, the House of Representatives as amicus insists
that Gravel v. United States, 408 U.S. 606 (1972), is “on all
fours.” House Br. 22. We disagree. In Gravel, a Senator
moved to prevent the questioning of his aide in a grand jury
proceeding. The Court held that the privilege established by
the Speech or Debate Clause that prevents the questioning of
a Member of Congress regarding legislative acts likewise bars
the questioning of a Member’s aide regarding actions which
would have been legislative acts, and therefore privileged, if
performed by the Member personally. The Court, however,
did not squarely address the Perlman issue. Id. at 608, n.1
(“The Court of Appeals, United States v. Doe, 455 F.2d 753,
756-757 (CA1 1972), held that because the subpoena was
directed to third parties, who could not be counted on to risk
contempt to protect intervenor's rights, Gravel might be
‘powerless to avert the mischief of the order’ if not permitted
to appeal, citing Perlman v. United States, 247 U.S. 7, 13, 38
S. Ct. 417, 62 L. Ed. 950 (1918). The United States does not
here challenge the propriety of the appeal.”).
41
Doe v. McMillan, 412 U.S. 306, 311-12 (1973).
18
guarantees that a Member, or his alter ego, may not be made
to answer questions about his legislative acts;42 and (3) bars
the use of legislative-act evidence against a Member.43 Here,
we address the evidentiary privilege as applied to records.
While courts have recognized that the bounds of these
protections vary, they are all rooted in the notion that, “to the
extent that the Speech or Debate Clause creates a Testimonial
privilege as well as a Use immunity, it does so only for the
purpose of protecting the legislator and those intimately
associated with him in the legislative process from the
harassment of hostile questioning.”44 Courts have interpreted
the term “questioning” broadly to forbid submission of
legislative act evidence to a jury—whether in the form of
testimony or records.45
It cannot be, however, that the privilege prohibits
disclosure of evidentiary records to the Government during
the course of an investigation. In re Grand Jury (Eilberg)
provides a good example. There we held that the disclosure
of telephone records containing Speech or Debate Clause
42
Gravel, 408 U.S. at 616.
43
United States v. Helstoski, 442 U.S. 477, 487 (1979).
44
In re Grand Jury (Eilberg), 587 F.2d at 597.
45
United States v. Renzi, 769 F.3d 731, 746 (9th Cir. 2014),
petition for cert. filed, No. 14-1082 (Mar. 9, 2015) (“Evident
from its plain language, the focus is on the improper
questioning of a Congressman. As such, the Clause is violated
when the government reveals legislative act information to a
jury because this would subject a Member to being
‘questioned’ in a place other than the House or the Senate.”
(internal quotation marks omitted)).
19
privileged documents was permissible.46 Moreover, we
explained that the evidentiary privilege “[was] not designed
to encourage confidences by maintaining secrecy, for the
legislative process in a democracy has only a limited
toleration for secrecy.”47
This makes good sense. If it were any other way,
investigations into corrupt Members could be easily avoided
by mere assertion of this privilege. Members could, in effect,
shield themselves fully from criminal investigations by
simply citing to the Speech or Debate Clause. We do not
believe the Speech or Debate Clause was meant to effectuate
such deception. Rather, the “purpose of the Speech or Debate
Clause is to protect the individual legislator, not simply for
his own sake, but to preserve the independence and thereby
the integrity of the legislative process.”48 That is, the Clause
was meant to free “the legislator from the executive and
judicial oversight that realistically threatens to control his
conduct as a legislator.”49 The crux of the Clause is to
“prevent intimidation by the executive and accountability [for
legislative acts] before a possibly hostile judiciary.”50 It is
clear that the purpose, however, has never been to shelter a
Member from potential criminal responsibility.
46
In re Grand Jury (Eilberg), 587 F.2d at 597.
47
Id. (citing U.S. Const. art. 1 § 5, cl. 3).
48
United States v. Renzi, 651 F.3d 1012, 1036 (9th Cir. 2011)
(quoting United States v. Brewster, 408 U.S. 501, 524-25
(1972)).
49
Helstoski, 442 U.S. at 492 (quoting Gravel, 408 U.S. at
618).
50
Id. at 491 (quoting United States v. Johnson, 383 U.S. 169,
181 (1966)).
20
Any other reading of this privilege would eradicate the
integrity of the legislative process and unduly amplify the
protections to the individual Member. Indeed, “financial
abuses by way of bribes, perhaps even more than Executive
power, would gravely undermine legislative integrity and
defeat the right of the public to honest representation.
Depriving the Executive of the power to investigate and
prosecute and the Judiciary of the power to punish bribery of
Members of Congress is unlikely to enhance legislative
independence.”51 We decline to strip the legislative process,
and the public, of this protection.
Accordingly, while the Speech or Debate Clause
prohibits hostile questioning regarding legislative acts in the
form of testimony to a jury, it does not prohibit disclosure of
Speech or Debate Clause privileged documents to the
Government. Instead, as we have held before, it merely
prohibits the evidentiary submission and use of those
documents.
Thus, based on these distinctions, we hold that the
Perlman doctrine does not apply to the Speech or Debate
Clause with respect to records disclosed to the Government in
the course of an investigation. The Speech or Debate Clause
does not prohibit the disclosure of privileged documents.
Rather, it forbids the evidentiary use of such documents. As
such, there is no “mischief” for Fattah to stymy as there is no
privilege in danger of destruction. Fattah is unable to
challenge the disclosure regardless of to whom the request is
51
Renzi, 651 F.3d at 1036 (emphasis in the original) (quoting
Brewster, 408 U.S. at 524–25).
21
made. This differs from a challenge to a subpoena requesting
attorney-client privileged documents, where, as the saying
goes, you cannot “unring the bell.” In that scenario, no
remedy assuages disclosure and the privilege may very well
be destroyed. Fattah’s challenge is far less serious and
therefore should not receive such protections. There is no
bell to unring here—the privileged documents may be
disclosed without violating the privilege, and Fattah may
avail himself of several remedies to any alleged illegal search
or seizure.
The impetus of the Perlman doctrine is to protect
privilege holders from the disclosure of privileged materials
by a disinterested third-party. Here, Fattah fails to cite a
legally cognizable privilege to support his claim.
Accordingly, Perlman is inapplicable, and we hold that we
lack jurisdiction to entertain this appeal under this ground as
well.
2. The Perlman Doctrine Provides Jurisdiction to
Review Fattah’s Claims Under the Attorney-Client
Privilege and Work-Product Doctrine.
Fattah contends that the Perlman doctrine provides
appellate jurisdiction for this Court to review the merits of his
attorney-client privilege and work-product doctrine claims
regarding inadequate filtering procedures. We agree. Unlike
Fattah’s Speech or Debate Clause claim, this claim succeeds
because it is predicated on legally cognizable privileges
continuously recognized under the Perlman Doctrine.52
Because the attorney-client privilege and work-product
52
See, e.g., In re Grand Jury Subpoena, 745 F.3d at 686.
22
doctrine are non-disclosure privileges that may in fact be
destroyed by a disinterested third-party, Perlman applies.
On the merits of this issue, Fattah argues that the
District Court erred in approving the Government’s proposed
filtering procedures regarding documents protected by the
attorney-client privilege and work-product doctrine. These
procedures involved the use of a “taint team” to review for
privileged documents, a common tool employed by the
Government.53 The team, however, is structured to include a
non-attorney federal agent at the first level of review,
followed by review by independent attorney federal agents.
Moreover, Fattah contends that he does not have the
opportunity to assert his privilege with respect to certain
documents deemed to be “clearly not privileged” until after
they are turned over to those prosecuting his case.
53
Certain courts have limited the circumstances in which
prosecutors may employ taint teams during criminal
investigations. See, e.g., In re Grand Jury Subpoenas, 454
F.3d 511, 522 (6th Cir. 2006). But because Fattah does not
argue that the use of a taint team is inappropriate in his case,
we have no occasion to consider the appropriate limits, if any,
on their use. Of course, a court always retains the prerogative
to require a different method of review in any particular case,
such as requiring the use of a special master or reviewing the
seized documents in camera itself. See, e.g., Klitzman,
Klitzman & Gallagher v. Krut, 744 F.2d 955, 962 (3d Cir.
1984); Black v. United States, 172 F.R.D. 511, 516 (S.D. Fla.
1997); United States v. Abbell, 914 F. Supp. 519, 520–21
(S.D. Fla. 1995); In re Search Warrant for Law Offices
Executed on Mar. 19, 1992, 153 F.R.D. 55, 59 (S.D.N.Y.
1994).
23
Fattah maintains that only attorneys should be
involved in this type of privilege review and that the District
Court did not realize a non-attorney agent would be the first
line review.54 Thus, Fattah argues that “eliminated from the
initial determination of what may be privileged is the only
professional qualified to make that determination.”55 Fattah
also argues that he should have an opportunity to work with
prosecutors to identify privileged documents and that he
should be entitled to a court ruling on any documents he
claims are privileged before the filter agents turn these
documents over to the prosecutorial arm of the Department of
Justice (DOJ). Because of the legal nature of the privilege
issues involved, we agree that the first level of privilege
review should be conducted by an independent DOJ attorney
acceptable to the District Court. Fattah's remaining
arguments regarding the structure of the review process, we
believe, are more appropriately addressed by a district court
in the first instance on a case-by-case basis. On remand, the
District Court may thus, in its discretion, implement those
procedures it deems necessary to protect Fattah’s privileges.
54
Indeed, the District Court held that the use of “taint teams”
had been cited with approval in this Circuit. The cases the
District Court cited to, however, all involved an attorney at
the first level of review. See, e.g., Manno v. Christie, No. 08-
cv-3254, 2009 U.S. Dist. LEXIS 31470 (D.N.J., Apr. 13,
2009). Likewise, the District Court never explicitly
acknowledged that review would be conducted by a non-
lawyer. Rather, the court stated review would be conducted
by “FBI Special Agents not involved in the investigation.”
App. 10.
55
Fattah Br. 61.
24
C. Fattah’s Federal Rule of Criminal Procedure 41(g)
Motion
Fattah also styled his pre-indictment motion as a
request for relief under Federal Rule of Criminal Procedure
41(g) and contends that under this rule we have appellate
jurisdiction. The Rule sets out the procedures criminal
defendants should employ for the return of property,
providing:
(g) Motion to Return Property. A
person aggrieved by an unlawful
search and seizure of property or
by the deprivation of property
may move for the property's
return. The motion must be filed
in the district where the property
was seized. The court must
receive evidence on any factual
issue necessary to decide the
motion. If it grants the motion, the
court must return the property to
the movant, but may impose
reasonable conditions to protect
access to the property and its use
in later proceedings.
Denial of a pre-indictment Rule 41(g) motion is
immediately appealable, only if the motion is: (1) solely for
the return of property and (2) is in no way tied to an existing
criminal prosecution against the movant.56 In this case, the
56
Di Bella, 369 U.S. at 131-32; see also In re Grand Jury,
635 F.3d 101, 103-05 (3d Cir. 2011).
25
warrant has yet to be executed, and the Government has yet to
seize the evidence Fattah seeks returned. Therefore, there is
no property to return. As such, we lack appellate jurisdiction
under this ground as well.
III. Conclusion
We take seriously the sentiments and concerns of the
Supreme Court that Members are not to be “super-citizens”
immune from criminal liability or process.57 Permitting an
interlocutory appeal of an order denying a motion to quash an
unexecuted search warrant based on the Speech or Debate
Clause would set bad precedent and insulate Members from
criminal investigations and criminal process. This, of course,
cannot and should not be the purpose of the Clause. Thus, for
all of the reasons above, we dismiss Fattah’s appeal regarding
his Speech or Debate Clause claims for lack of jurisdiction
and we remand to the District Court his claim with respect to
inadequate filtering procedures.
57
Brewster, 408 U.S. at 516.
26
In the Matter of the Search of Electronic Communications
No. 14-3752
_________________________________________________
AMBRO, Circuit Judge, dissenting in part:
I agree with my colleagues that the Speech or Debate
Clause does not confer a privilege of confidentiality. Thus,
the motion to quash the search warrant on that basis must be
denied. Any other conclusion is foreclosed by a long line of
precedent.1 However, that Fattah’s argument lacks merit does
not, in my view, deprive us of jurisdiction to review his claim
under the Perlman doctrine. “Rather, the lack of merit means
that the claim of [privilege] should be denied for just that
reason—it lacks merit.” Powell v. Ridge, 247 F.3d 520, 527
(3d Cir. 2001) (Roth, J., dissenting). I thus respectfully
dissent in part.
“When a district court orders a witness—whether a
party to an underlying litigation, a subject or target of a grand
jury investigation, or a complete stranger to the
proceedings—to testify or produce documents, its order
generally is not considered an immediately appealable ‘final
decision[ ]’ under § 1291.” In re Grand Jury, 705 F.3d 133,
1
Of course, our binding precedent also provides that, while
the Government has a right to review the documents and
argue privilege, Fattah has an equal right to participate in that
process, particularly given “the information as to [what] were
legislative acts is in his possession alone.” In re Grand Jury
Investigation (Eilberg), 587 F.2d 589, 597 (3d Cir. 1978); see
also id. (holding that a congressman asserting the Speech or
Debate Clause privilege in a grand-jury proceeding “should
be permitted to indicate by affidavit or testimony those calls
which he contends are privileged”).
142 (3d Cir. 2012) (alteration in original). The appellant
instead only secures the right to an immediate appeal when he
defies the order, is held in contempt, and appeals the
contempt order. This rule, “‘though at times a harsh one,’”
discourages “‘all but the most serious’” appeals because “[i]t
forces the objector to weigh carefully the likelihood of
success of its challenge” along with “the importance it
attaches to avoiding the ordered disclosure and protecting any
associated privileges.” Id. at 143 (quoting In re Grand Jury
Proceedings, 604 F.2d 798, 800 (3d Cir. 1979)). In effect,
review remains available through this route even where the
likelihood of success is low so long as the importance
attached is high.
Where a disclosure order is addressed to a
disinterested third party, however, the incentive structure
shifts. Unlike the holder of a privilege, a mere custodian of
records cannot be “expected to risk a citation for contempt in
order to secure [the privilege holder] an opportunity for
judicial review.” United States v. Ryan, 402 U.S. 530, 533
(1971). Moreover, without a means to force the third party to
protect the privilege holder’s rights, it is “left . . . ‘powerless
to avert the mischief of [a disclosure] order.’” Id. (quoting
Perlman v. United States, 247 U.S. 7, 13 (1918)). Under the
Perlman doctrine, we allow a party opposing a discovery
order on grounds of privilege to appeal immediately where
the order is directed at a third party who lacks a sufficient
stake in the proceeding to risk contempt by refusing
compliance. See id.
The same principle applies here: As the party on which
the warrant was served, Google could refuse to comply and
seek appellate review through a separate proceeding for
2
contempt.2 However, it presumably has little incentive to do
so because the asserted privilege belongs not to Google but to
Fattah. Moreover, without custody of the allegedly privileged
documents, Fattah cannot himself defy the order to force an
interlocutory appeal. Accordingly, Fattah’s case falls
squarely within Perlman’s rationale.
My colleagues of course suggest otherwise. They
conclude that we are without jurisdiction because there is no
confidentiality privilege under the Speech or Debate Clause.
But “[t]he question of the existence of a privilege . . .
pertain[s] to the merits,” Slark v. Broom, 7 La. Ann. 337, 342
(1852), and it is well established that “jurisdiction under the
Perlman doctrine does not rise or fall with the merits of the
appellant’s underlying claim for relief,” Doe No. 1 v. United
States, 749 F.3d 999, 1006 (11th Cir. 2014). See also Ross v.
City of Memphis, 423 F.3d 596, 599 (6th Cir. 2005)
2
To the extent the Government argues that even contempt
proceedings are unavailable for review of an unexecuted
search warrant issued under 28 U.S.C. § 2703(b)(1), this
position is directly inconsistent with its position in a pending
Second Circuit case. See Brief of the United States of
America at 8 n.5, In re Warrant To Search Certain E-Mail
Account Controlled & Maintained by Microsoft Corp., No.
14-2985 (2d Cir. Mar. 9, 2005) (noting that the District
Court’s “entry of a contempt order” gave the Second Circuit
jurisdiction to review an unexecuted search warrant issued
under § 2703); see also In re Warrant To Search a Certain E-
Mail Account Controlled & Maintained by Microsoft Corp.,
No. 13-mj-2814, 2014 WL 4629624 (S.D.N.Y. Aug. 29,
2014) (Preska, C.J.). (Interestingly, in that case the
Government also has taken the contrary position that this type
of search warrant isn’t really a search warrant at all.)
3
(“[Perlman] jurisdiction does not depend on the validity of
the appellant’s underlying claims for relief.”). Rather, “[i]t is
the possibility of disclosure of information which is thought
to be confidential that is central to the Perlman exception.”
United States v. Calandra, 706 F.2d 225, 228 (7th Cir. 1983)
(emphasis added).
Not only do my colleagues fail to cite any case law for
their novel proposition that the Perlman doctrine depends on
the cognizability of the privilege asserted, they also overlook
numerous cases to the contrary. This includes Perlman itself,
where the Supreme Court reviewed the petitioner’s claims on
interlocutory appeal despite concluding his arguments lacked
merit. See Perlman, 247 U.S. at 13–15. Indeed, we have
routinely invoked the Perlman doctrine as the basis for our
jurisdiction, only to decide ultimately that the appellant lacks
the privilege asserted. See, e.g., In re Grand Jury Impaneled
Jan. 21, 1975, 541 F.2d 373, 381, 383 (3d Cir. 1976)
(rejecting “the application of a state required reports privilege
as a matter of federal common law” though concluding the
appellant “had standing to intervene below and challenge the
subpoena on the basis of his claim of privilege”); In re Grand
Jury, 103 F.3d 1140, 1144 (3d Cir. 1997) (refusing to
recognize a cognizable “parent-child privilege” but citing
Perlman as the basis for its jurisdiction).
We are not without company; other appellate courts
have done the same. See, e.g., In re Grand Jury Proceedings,
832 F.2d 554, 560 (11th Cir. 1987) (permitting an
interlocutory appeal, but holding “that the privilege asserted
by [the] appellants [was] without a basis in Florida law” and
that they “ha[d] no privilege of nondisclosure under state
law”); In re: a Witness Before the Special Grand Jury 2000-2,
288 F.3d 289, 291, 295 (7th Cir. 2002) (invoking Perlman for
the court’s jurisdiction though refusing to extend the attorney-
4
client privilege to communications between government
attorneys and their state clients).
The failure to recognize our jurisdiction under
Perlman is particularly puzzling given that we have
previously relied on that doctrine to review—and reject—
indistinguishable attempts to bar disclosure under the Speech
or Debate Clause. While my colleagues distinguish one such
case, In re Grand Jury Proceedings (Cianfrani), 563 F.2d 577
(3d Cir. 1977), as having involved a state, rather than federal,
congressperson, I fail to see the relevance of that distinction.
Neither did a panel of our Court the following year when U.S.
Congressman Eilberg intervened in grand-jury proceedings
and appealed. See Eilberg, 587 F.2d at 597 (concluding we
had jurisdiction to review the interlocutory appeal, but
holding, that, “as we ha[d] said on two other occasions, the
[Speech or Debate] privilege when applied to records or third-
party testimony is . . . not [one] of non-disclosure” (citing
United States v. Helstoski, 576 F.2d 511 (3d Cir. 1978), aff’d,
442 U.S. 477 (1979), aff’d sub nom. Helstoski v. Meanor, 442
U.S. 500 (1979); Cianfrani, 563 F.3d 577)).
Finally, that these prior Speech or Debate Clause cases
arose in the context of a subpoena duces tecum (rather than
search warrant) is also an irrelevant distinction. If the
Perlman doctrine did not apply to search warrants, Fattah
would similarly be unable to rely on that doctrine to appeal
his attorney-client privilege and work-product claims. Yet
here my colleagues correctly rely on the Perlman doctrine to
conclude that “this claim succeeds.” Majority Op. 22.
Similarly, other courts have applied Perlman even though a
search warrant has been used. See, e.g., In re Berkley & Co.,
629 F.2d 548, 551–52 (8th Cir. 1980) (applying Perlman to
consider the denial of a motion to prevent the Government
from disclosing to the grand jury certain privileged
documents it had previously seized); United States v. Griffin,
5
440 F.3d 1138, 1143 (9th Cir. 2006) (applying the Perlman
doctrine where seized documents were in the temporary
possession of a special master); In re Sealed Case, 716 F.3d
603, 612 (D.C. Cir. 2013) (Kavanaugh, J., concurring)
(suggesting that if a search warrant is used to seize allegedly
privileged documents, the order would be appealable under
Perlman (citing Berkley, 629 F.2d 548)).
The Supreme Court has repeatedly admonished
appellate courts not to “conflate[e] the jurisdictional question
with the merits of the appeal.” Arthur Andersen LLP v.
Carlisle, 556 U.S. 624, 627 (2009). I believe that, by
intertwining the cognizability of the privilege with that of an
appellate court’s jurisdiction, the majority contravenes this
mandate. I therefore respectfully dissent in part.
6