14-572 United States v. Doe 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER**  **J ANUARY**  **1, 2007,**  **IS PERMITTED AND IS GOVERNED BY F**  **EDERAL R** **ULE OF A** **PPELLATE P** **ROCEDURE 32.1**  **AND THIS COURT ’**  **S L** **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A**  **DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX OR AN ELECTRONIC DATABASE**  **( WITH THE NOTATION**  **“ SUMMARY ORDER**  **”). A**  **PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL**  **. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 14 th** **day of April, two thousand fourteen.** 4 5 **PRESENT: AMALYA L. KEARSE,** 6 **DENNIS JACOBS,** 7 **GERARD E. LYNCH,** 8 **Circuit Judges .**  9 10 - - - - - - - - - - - - - - - - - - - -X 11 **UNITED STATES OF AMERICA,** 12 **Appellee ,**  13 14 **-v.- 14-572** 15 16 **JOHN DOE,** 17 **Defendant-Appellant .**  18 - - - - - - - - - - - - - - - - - - - -X 19 20 Appeal from an order of the United States District 21 Court for the Eastern District of New York. 22 23 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 24 **AND DECREED**that the appeal be **DISMISSED** , and the petition 25 for mandamus be **DENIED**

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1John Doe appeals from an oral order of the United 1 States District Court for the Eastern District of New York, 2 granting the government’s motion for a protective order that 3 would allow proffer statements made by Doe to be disclosed 4 to his codefendants. Doe argues the government is 5 contractually barred from disclosure to his codefendants 6 unless he triggers a condition set forth in the proffer 7 agreements. We assume the parties’ familiarity with the 8 underlying facts, the procedural history, and the issues 9 presented for review. 10 The government contests our jurisdiction to hear this 11 interlocutory appeal. Typically, this Court lacks 12 jurisdiction to entertain an appeal until the district court 13 renders a final judgment. See28 U.S.C. § 1291. Doe, 14 however, argues his appeal is properly brought pursuant to 15 the collateral order doctrine, seeCohen v. Beneficial 16 Indus. Loan Corp. , 337 U.S. 541, 546 (1949), or as a 17 petition for a writ of mandamus, seeIn re Zyprexa Prods. 18 Liab. Litig. , 594 F.3d 113, 118 (2d Cir. 2010). 19 The collateral order doctrine permits an appeal of a 20 “‘small class’ of collateral rulings that, although they do 21 not end the litigation, are appropriately deemed ‘final.’” 22 Mohawk Indus., Inc. v. Carpenter , 558 U.S. 100, 106 (2009) 23 (quoting Cohen , 337 U.S. at 545-46). Only decisions “‘that 24

2are conclusive, that resolve important questions separate 1 from the merits, and that are effectively unreviewable on 2 appeal from the final judgment in the underlying action’” 3 fall within this exception to the rule of finality. Id. 4 (quoting Swint v. Chambers Cnty. Comm’n , 514 U.S. 35, 42 5 (1995)). “In making this determination, we do not engage in 6 an individualized jurisdictional inquiry. Rather, our focus 7 is on the entire category to which a claim belongs.” Id. at 8 107 (internal quotation marks and citations omitted). 9 The policy embodied in 28 U.S.C. § 1291 “is at its 10 strongest in the field of criminal law.” United States v. 11 Culbertson , 598 F.3d 40, 46 (2d Cir. 2010) (internal 12 quotation marks omitted). As Doe’s counsel concedes, 13 disclosure of these proffer statements is a routine 14 practice; we therefore cannot conclude that the “entire 15 category,” Mohawk Indus. , 558 U.S. at 107, of orders 16 sanctioning the disclosure of proffer statements raises 17 issues of such importance as to justify an exception to the 18 final judgment rule. We conclude that we lack jurisdiction 19 to hear Doe’s appeal. 20 Alternatively, we may construe Doe’s appeal as a 21 petition for a writ of mandamus. SeeHong Mai Sa v. Doe , 22 406 F.3d 155, 158 (2d Cir. 2005); see also28 U.S.C. § 23 1651(a). Mandamus, however, “‘is a drastic and 24

3extraordinary remedy reserved for really extraordinary 1 causes. . . . [O]nly exceptional circumstances amounting to 2 a judicial usurpation of power or a clear abuse of 3 discretion will justify the invocation of this extraordinary 4 remedy.’” In re Zyprexa , 594 F.3d at 118 (quoting Cheney v. 5 U.S. Dist. Court for Dist. of Columbia , 542 U.S. 367, 380 6 (2004)). The district court’s order does not rise to such 7 an abuse of discretion. Again, the disclosure of proffer 8 statements such as these is a common practice and the court 9 issued a protective order in light of Doe’s safety concerns. 10 Therefore, we deny Doe’s petition for a writ of mandamus. 11 That said, our disposition does not endorse the 12 district court’s decision, nor limit the ability of the 13 court to reconsider its order, including giving further 14 consideration to the advisability of more restrictive 15 conditions on the government’s proposed disclosures, in 16 light of the refinement of the government’s position during 17 the pendency of the appeal. While before the district court 18 the government took the position that it had an obligation 19 to disclose Doe’s proffer statements to his codefendants 20 prior to trial, the government has retreated from that 21 position before us. 22 This change in the government’s position may justify 23 another review of the factors relevant to an appropriate 24

4protective order in light of Doe’s concerns for the safety 1 of his family. The government advised the district court 2 that it saw no safety concerns because Doe was not 3 identified as a cooperating witness. Yet the government had 4 earlier taken pains to offer Doe reassurance that the 5 government had not disclosed the proffer statements or 6 identified him as a potential cooperating witness. It 7 requires no great leap for codefendants to fear that Doe 8 might become a damaging cooperating witness. 9 The government also took the position in the district 10 court that safety is a factor that need not be considered 11 while the appellant is separated from his codefendants. 12 This position discounts the risk that the pretrial detainees 13 may have undetained allies perform retaliatory or 14 intimidatory acts against the family of a codefendant whom 15 they learn has made extensive incriminating statements about 16 them, and who they fear may decide to cooperate with the 17 government. 18 The benefits of resolving anticipated issues before 19 trail may in this instance be attenuated; Doe will have a 20 strong incentive to avoid triggering admissibility of his 21 statements, and the ability of co-defendants’ counsel to 22 redact the statements prior to trial may be impaired by the 23

5difficulty of knowing in advance what portions of the 1 statements (if any) may ultimately be admissible. 2 For the foregoing reasons, Doe’s appeal is **DISMISSED** 3 for want of jurisdiction and, to the extent it may be 4 construed as a petition for a writ of mandamus, the petition 5 is **DENIED**

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7 FOR THE COURT: 8 CATHERINE O’HAGAN WOLFE, CLERK 9 10

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