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## ~nii£o**~tai£s** 

# Qlourt of J\pp£als

FORTHEDISTRICT OFCOLUMBIA CIRCUIT

Argued September25, 2012 DecidedMarch 5, 2013 Reissued May 16, 2013

No. 12-5147

IN RE: SEALED CASE

Consolidatedwith 12-5148

Appeal from the United States District Court for the District ofColumbia (No. 1:12-mc-00196)

Before: GARLAND, Chief Judge, GRIFFITH and KAVANAUGH, CircuitJudges.

juryOpinion for the Court filed by CircuitJudge GRIFFITH. Concurring opinion filed by CircuitJudge KAvANAUGH.

ts executed search

as part of a grand

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.. ,T.¥'.£'T courtthatsomeofthe

1 NOTE: Portions of this opinion contain Sealed Material, which has been redacted.2

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### documents seized were beyond the scope ofthe warrants and others were protected by the attorney-client privilege, appellant moved for their return pursuant to Federal Rule of Criminal Procedure 41(g). The districtcourt denied. motion, and this appeal ensued. We dismiss this interlocutory appeal for want of jurisdiction.
I



### The agents seized more than sixty boxes of physical property, as well as computers, hard drives, cell phones, and other devices that contained electronic records. The boxes and the electronic devices contained more than twenty-three million pages of documents. Within**~** 

### governmenthad copied and returned to- the contents of most of the electronic**devices.~** 

### unclear whether several cell phones seized from

- -haveyet been returned. Tr. 54-55.) The government also made copies ororiginals ofthe documents available. Each party proposed protocols to identify documents the government could review without exceeding the scope ofthe search warrants or breaching the**attorney-c~** 

### When they were unable to reach an agreement,-

- moved under Federal Rule of Criminal Procedure 41(g) for the return**o~**

### documents the government lacked authority to review.

- did not assert that. had been3

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### denied access to documents essential for. affairs. Instead, urged the adoption ofprotocols • propo on grounds that the government retained documents protected from review by the Fourth Amendment and the attorney-clientprivilege.
On May 3, 2012, the district court denied. motions and on 11 sou t review from this court. January 14, 2013, government notified us that they had re agreement on how to identify privileged material. Because we may act only to resolve "actual, ongoing controversies," Honig v. Doe, 

### 484 U.S. 305, 317 (1988), we dismiss as moot the portion of

- appeal that challenged the district court's refusal to order the parties to implement the protocols had proposed to identify privileged**documents~** 

### appeal is now limited to • claim that the court improper!"-declined to order the parties to implement the protocols.proposed to identify documents beyond the scope ofthe search warrants.
II


### Beforewe cantake up the merits of- claim, we mustdetermine whetherwe havejurisdictionto hearthe appeal of the denial of. Rule 41(g) motions. Under 28 U.S.C. § 1291, Congress has limited our jurisdiction to appeals of final decisions of the district court- a policy that requires most litigants to await the termination of their cases before seeking appellate review. This limit aims to prevent "leaden-footed" judicial administration and avoid "the obstructiontojustclaims thatwould come from permittingthe4

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harassment and cost ofa succession ofseparate appeals from the various rulings to which a litigation may give rise." 

### Cobbledick v. United States, 309 U.S. 323, 325 (1940). This
concern with efficiency is most pronounced in criminal proceedings. Id. at 324-25. "[T]he delays and disruptions attendant upon intermediate appeal are especially inimical to the effective and fair administration of the criminal law." 

### DiBella v. UnitedStates, 369 U.S. 121, 126 (1962). Allowing review ofthe decisions district courts make during the course ofongoing criminal prosecutions may, for example, "make of appeal an instrument ofharassment,jeopardizingby delay the availability of

... essential evidence." Id. at 129. Weighed against these costs, the value of an immediate appeal is diminishedbecausethere is likelyto be "anadequateremedy at law by motion in the [forthcoming] criminal trial." Id. at 128.

Rule 41(g) allows the owner ofpropert1' the government has seized in a search to seek its return. Sometimes, the government has seized the property for the purposes of a criminal investigation or prosecution that is ongoing when the motion is filed. Even ifassigned its own docket number in the district court,3 thatmotion is likely a "componentelement[] in

2 Priorto 1989, only an unlawful searchorseizure couldtrigger the rule, which provided for automatic suppression ofany property returned. See In re Warrant Dated Dec. 14, 1990, 961 F.2d 1241, 1243 n.4 (6th Cir. 1992) (describingthe 1989 amendment). Afterthe 1989 amendment to Rule 41, that restriction is See FED. R. CRIM. P. 41(g). Accordingly, not contested the lawfulness ofthe government's

3 Because the grand jury has not yet returned an indictment 

# l ainst -, no criminal number exists for

# II case. Instead, motions were assigned miscellaneous numbers.5

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a unified [criminal case]," Cobbledick, 309 U.S. at 325, rather than an "independent proceeding begetting finality

...for purposes of appealability." DiBella, 369 U.S. at 131. We threaten to disrupt "the conduct ofa criminal trial" when we permit appeals from these motions. 

### Id. at 129. Forthat reason, an appellant seeking review of the denial of a Rule 41(g) motion must show that the decision is independent of any ongoing criminal prosecution, suchthat its appeal will not lead to piecemeal review ofa unified criminal case or impede the progress ofthe prosecution.

In DiBella v. UnitedStates, the Supreme Court announced
a test to determine whether a Rule 41(g) proceeding is independent of a criminal prosecution. 369 U.S. at 131-32. DiBella consolidated appeals ofconflicting decisions from the Second and Fifth Circuits. In the appeal from the Second Circuit, Mario DiBellahad been arrestedpursuantto a warrant issued upon a complaint charging unlawful sales ofnarcotics. ld. at 122. After his arrest but before his indictment, DiBella moved under the predecessor to Rule 41(g) to suppress evidence he claimed was unlawfully seized at the time ofhis arrest. !d. Shortly afterDiBellafiled his motion, the grandjury returned an indictment, and the district court denied his motion without prejudice to a motion to suppress at trial. Id. The Second Circuit permitted his appeal because the motion was filed before the indictment was returned. 

### Id. at 122-23. In the appeal from the Fifth Circuit, Daniel Koenig was arrested and his propertywas seized in the Southern District ofFlorida on a complaint charging a bank robbery in the Southern District of Ohio. 

### Jd. at 123. Four days after Koenig filed a motion to suppress and for return ofproperty in Florida, a federal grand jury in Ohio returned an indictment against him. 

### Id. The District Court for the Southern District of Florida granted6

PUBLIC COPY- SEALED INFORMATIONDELETED suppression ofthe evidence but denied Koenig its return. !d. The government appealed, and the Fifth Circuit dismissed the appeal on the ground that the order was interlocutory and therefore not appealable.4 !d.

The Supreme Court held that a court of appeals could entertainthe denial ofamotionforthereturnofseizedproperty "[o]nlyifthemotion is solelyfor return ofproperty and is in no way tied to a criminal prosecution in esse 5 against the movant." !d. at 131-32. The Court concluded that the movant failed both prongs in each case. The movant's goal was not "solely

...return ofproperty,"butthe suppression ofevidence at an upcoming trial. !d. Far from being independent ofthe trial, each motion was an integral part ofa trial strategy. !d. at 127 (holdingthat amotionto suppress "presentsan issuethat is involved in and will be part of a criminal prosecution in process at the time the order is issued"). The Court reasoned that it could not treat a motion as "independent" when its "disposition

... 'will necessarily determine the conduct ofthe trial and may vitally affect the result."' !d. (quoting Cogen v. UnitedStates, 278 U.S. 221,223 (1929)). The Courtalso found that each motion was "tied to a criminal prosecution in esse" because both movants had been arrested and indicted at the time ofappeal. DiBella, 369 U.S. at 131-32. When a criminal prosecutionis in esse
- orwhen it is "inbeing" -the"delays and disruptions attendantupon intermediate appeal"jeopardize "the effective and fair administration ofthe criminal law." !d. at 126. In short, the orders were not final. They were

4 Today, a statute permits the United States to appeal orders grantingRule 41(g) motions. See 18 U.S.C. § 3731.

5 In esse is defined as "[i]n actual existence" or "in being." BLACK'S LAWDICTIONARY 846 (9th ed. 2009).7

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### inextricably intertwined with issues that would be more fully developed at trial, and allowing their appeal would disrupt an ongoing criminal proceeding.

- Rule 41(g) motions are not independent. Instead, they are part ofa**~how** 

### best to respond to a grand jury investigation.

- aries • motions are "solely for return ofproperty" because does not seek the suppression of evidence gathered from the documents. Appellant's Reply Br. 3-4. In so arguing,- seems to assume that every Rule 41(g) motion falls into one of two categories: motions that seek "solely" return ofproperty, and those that seekreturn ofproperty and

### suppression ofevidence. But at the time the Court decided DiBella, 

### the dichotomy

- imagines did not exist: granting a Rule 41(g) motion automatic-It 

### resulted in suppression ofthe returned evidence.6 

### Thus, cannot be right that the test for whether a motion is "solely for return ofproperty" turns on whether the motion also seeks suppression. The Court's objective in crafting the first prong was to distinguish some motions from others: those that are inextricably intertwined with issues to**~ed** 

### at a forthcoming trial from those that are not. If- were correct about its meaning, then the first prong would not have served the Court's desired culling function because seeking the return ofproperty went hand-in-glove with seeking its suppression. See In re Warrant DatedDec. 14, 1990, 

### 961 F.2d 1241, 1243-44 (6th Cir. 1992) ("[N]o motion

... could ever literally comply with the [first prong because] any motion for return of property was automatically treated as a suppression motion as well."

6 Rule 41 has since been amended and does not automatically result in suppression. See supra note 2.8

PUBLIC COPY- SEALED INFORMATION DELETED (internal quotation marks omitted)). Sensitive to this peril, courts ofappeals have**in~reted**DiBellato stand for a broader principle than

- acknowledges

- one that requires us to look beyond the mere effect ofthe motion to ascertain its true purpose. See, e.g., id. ("[W]e must look behind the

...motion and determine whether the motion essentially sought return of seized property or suppression, delay, or some other such purpose apart from the return ofthe property."); Matter of949 Erie Street, Racine, Wis., 824 F.2d 538, 541 (7th Cir. 1987); In re GrandJury Proceedings, 716 F.2d493,495 (8th Cir. 1983);ImperialDistribs., Inc. v. United States, 617 F.2d 892, 895 (1st Cir. 1980); United States v. Premises Known as 608 TaylorAve., 584 F.2d 1297, 1300 (3d Cir. 1978).
The question is more fundamental than whether the movant seeks only to suppress evidence. The question is whether a Rule 41(g) motion is being used for strategic gain at a future hearing or trial. Our sister circuits have identified factors probative of purpose. For example, many have considered the movant's need for the property. As such, when the movant has already recovered the property from the government, those courts are reluctantto find thatthe motion is "solely" for its return. See, e.g., In re Grand Jury, 635 F.3d 101, 104-05 (3d Cir. 2011);Matter of949Erie Street, 824 F.2d at 541; ImperialDistribs., 617 F.2d at 895-96. Courts have also considered whether granting the motion would have some effect on the presentation of evidence at a future hearing or trial. See, e.g.,In re GrandJury, 635 F.3d at 104 (holdingthat a Rule 41(g) motionwas actually amotionto suppress because it "request[ed]

... any copies ofthe seized documents and

... an order directing the government to cease inspecting the evidence pending a ruling" (emphasis in original)); In re 30219

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6thAve. North, 237 F.3d 1039, 1041 (9th Cir. 2001); Imperial Distribs., 617 F.2d at 896.

On both of these counts,

- motions are not "solely for return of**property."~** no argument that 

# I has some need for the seized property. We think it**~hat** the government has already made almost all of

- property available to., and it has expressed a willingnessto return atleast**copi~cuments** itretains. It is also telling that the injury

- asserts is not the deprivation of property but the unlawful revelation of • private information.

- preoccupation with disclosure ratherthan return underscores that. invocation of Rule 41(g) is not about securing • property's return. See United States v. Ryan, 402 U.S. 530, 533 (1971) (describing the interest at stake when a motion is "solely for return of property" as the "rightto possession").

To be sure,
- motions do not, by their terms, seek suppression ofevidence. Granting them, however, would have a profound effect on the presentation of evidence at a future hearing or trial. For example,

- motions include a request thatthe district court require the government to waive the?lain view doctrine with respect to the electronic documents. If

- motions were granted, the government could not use any electronic evidence outside the scope ofthe warrant at trial

- even evidence in plain view during the search of the device on which the evidence was

7 The plain view doctrine permits the seizure of evidence outside the scope ofthe warrant discovered during the course ofa lawful search, provided its criminal nature is immediately apparent. See Horton v. California, 496 U.S. 128, 135-36 (1990).10

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stored. Thatwould be a benefitto**~nd** ithas nothingto do with the return**ofpr~i·** motions
are strategic in another way, too. seeks to prevent the government from**revi~**most ofthe evidence for a period oftime, while -' and an independent third party screen the seized material. Tr. 13. By "jeopardizing

... the availability ofotheressential evidence," DiBella, 369 U.S. at 129, the delay could shape the course of the criminal investigation and the content ofthe case the government will present at trial. In these ways,- motions for return of property are designed to achieve more than "solely" the return of property. Rather, they are an integral part of. strategy before the grandjuryand at apossible trial.

Because

- motions fail the first prong ofthe DiBella test, we need not consider**wheth~** also "tied to a criminal prosecution in esse against"- .•Rule 41(g) motions below were not independent proceedings, and the district court's order denyingthose motions is not final.

III Congress and the courts have fashioned exceptions to the finality rule, see DiBella, 369 U.S. at 124-26, andinvokes one of them to argue that we have jurisdiction to reviewthe district court's denial of.Rule 41(g) motions.

The Perlman doctrine permits appeals from some decisions that are not final but that allow the disclosure of property orevidence overwhichthe appellant asserts a right or privilege. The doctrine originates in the Supreme Court's decision in Perlman v. UnitedStates, 247 U.S. 7 (1918). Louis Perlman owned several exhibits that his company, Perlman11

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Rim Corporation, used during its patent suit against Firestone Tire & Rubber Company. Id. at 8. Atthe close ofthe trial, the district court ordered all exhibits impounded in the custody of the clerk, pending an investigation into perjury Perlman may have committed at trial. I d. at 8-9. The court then ordered the two companies to show cause why the exhibits should not be turned over to a federal prosecutor. Id. at 9. Because neither party objected, the court directed the clerk to grant the federal prosecutoraccess to the exhibits.

### I d. at 9-10. Perlman, who was not a party to the patent suit and did not receive notice ofthe order to show cause, subsequently sought an order restraining the government from using the exhibits. Id. at 9-11. He argued that their disclosure to the governmenthad violated his Fourth and Fifth Amendment rights. Id. at 13. He lost, but appealed the denial ofhispetitionto the Supreme Court, whichheardthe
case under its then-obligatory appellatejurisdiction. Id. at 11. Sometime before his appeal reached the Supreme Court, Perlman was indicted for perjury. Id. The governmentopposed Perlman's appeal, arguingthatthe district court's decision was "part of a criminal proceeding," and "not final, but merely interlocutory, andtherefore notreviewable bythis court." Id. at 12.

In a brief paragraph, the Supreme Court rejected the government's argument, calling it "somewhat strange," and warning that, if adopted, it would render "Perlman

...powerless to avert the mischiefofthe order" and would require him to "accept its incidence and seek a remedy at some othertime and in some otherway."

### ld. at 12-13. In that language, which Judge Friendly would later describe as "Delphic," Nat'! Super Spuds, Inc. v. 

### NY. Mercantile Exch., 591 F.2d 174, 178 (2d Cir. 1979),- grounds.

### 12

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### argument that we have jurisdiction to consider the district court's denial of.Rule 41(g) motions.
It

### is not clearto us from the filings whether- still thinks thePerlman 

### doctrineprovides**jurisdictio~peal** 

### now that the dispute overthe attorney-client**p~**

### moot. Apart from Perlman 

### itself, all of the cases
- cites
concern privileges, rather than Fourth Amendment rights. In any event, we restourdispositionnotonthe nature oftherights
or privileges- asserts, but on the conclusion that the Perlman 

### doctrine cannot be stretched to cover appeals from denials ofRule 41(g) motions.- points us to no court that has relied upon Perlman's 

### "Delphic" language to permit
an appeal from the denial ofa Rule 41(g) motion, and we will not be the first to do so. Typically, Perlman 

### permits aprivilege-holder to appeal a disclosure order "directed at a disinterested third party

...because the third party presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance." Church of Scientology ofCal. v. United States, 

### 506 U.S. 9, 18 n.l1 (1992) (citing Perlman); see also United States v. Williams Companies, Inc., 

### 562 F.3d 387, 392 (D.C. Cir. 2009).8 

### Few courts have departed from this formula, as

8 Every other circuit has invoked a similar formulation. See In
re Grand Jury, Nos. 12-1697 & 12-2878, 2012 U.S. App. LEXIS 25318, *20 (3d Cir. Dec. 11, 2012); In re Motor Fuel Temperature Sales Practices Litig., 641 F.3d 470,485 (lOth Cir. 2011); Wilson v. O'Brien, 621 F.3d 641, 642-43 (7th Cir. 2010); United States v. Krane, 625 F.3d 568, 573 (9th Cir. 2010); United States v. Myers, 593 F.3d 338, 345 (4th Cir. 2010); John B. v. Goetz, 531 F.3d 448, 458 n.6 (6th Cir. 2008); In re Air Crash at Belle Harbor, 490 F.3d 99, 106 (2d Cir. 2007); Gill v. Gulfstream ParkRacingAss 'n, 39913

PUBLIC COPY- SEALED INFORMATIONDELETED**~s** to do in order to findjurisdiction over.**~** relies on two cases to press • argument that the Perlman doctrine is more flexible than the formula suggests. According to.,the doctrine permits interlocutory appeals whenever the holder of a right put in jeopardy by a court'sordercannotdefy its command and appeal the resulting contempt citation. In In re GrandJury Investigation of Ocean Transportation, we considered a motion for return of privileged documents that Sea-Land Services, Inc., had mistakenly turned over to the grand jury in response to a subpoena. 9 604 F.2d 672, 673 (D.C. Cir. 1979) (per curiam). We foundjurisdictionon "therationale ofPerlman,"reasoning that Sea-Land "had not for some time enjoyed possession of the documents [and] could not have pursued the traditional route for contesting**t~enying** its motion] by standing in contempt." Id.

- argues that this language demonstrates that Perlman applies not only to disclosure orders, but also to motions for return of property. In In re Berkley & Co., Inc., the Eighth Circuit recognized its jurisdiction over an appeal from an order that directed the disclosure to the grandjury ofcertain seized documents over which the appellant asserted the attorney-client privilege. 629 F.2d 548, 549-51 (8th Cir. 1980). The court chose to treat the order as "the functional equivalent of an order denying a

F.3d 391, 397-98 (1st Cir. 2005); In re GrandJury Subpoena, 190 F.3d 375, 382-83 (5thCir. 1999);In re GrandJuryProceedings, 142 F.3d 1416, 1420 n.9 (11th Cir. 1998); In re GrandJury Subpoenas Duces Tecum, 85 F.3d 372, 374-75 (8th Cir. 1996).

9 Although it sought return ofproperty, the motion was not a Rule 41(g) motion. Rule 41(g) provides only for return of seized property, not all property in government custody.14

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motion to quash a grand jury subpoena." Id. at 551. Acknowledging that the Perlman doctrine applies to appeals from subpoenas, the Eighth Circuitreasoned thatthe relatively unique order fell "within the rationale of the Perlman doctrine." Id.

- acknowledges that neither Ocean**Tra~ortation** norIn re Berkley involved Rule 41(g) motions, but.reasons that, together, these decisions support extending the Perlman doctrine to motions for return ofseizedproperty.
We disagree. These two isolated, decades-old decisions involvedunique circumstances. Bothwe andtheEighth Circuit recognized the novelty ofthe orders and cautiously relied on "the rationale ofPerlman." In re GrandJury Investigation of Ocean Transp., 604 F.2d at 673 (emphasis added); see also In
re Berkley & Co., Inc., 629 F.2d at 551. Most important, neither we nor the Eighth Circuit had the benefit of a jurisdictional doctrine crafted explicitlyfor the type oforder at issue in those cases, as we do with DiBella in the Rule 41(g) context. Thus, earlier decisions to analogize to Perlman in
cases thatdid notinvolveRule41(g) are not instructive to us in
cases that do.

We hold thatDiBella is the exclusive test for determining whetherwe havejurisdiction overappeals from orders denying Rule 41(g) motions. To use Perlman to find jurisdiction here would threaten to swallow DiBella's carefully reasoned limitation on Rule 41(g) appeals. The DiBella test prohibits appeals afteran indictmenthas issued. SeeDiBella, 369 U.S. at 131. Bycontrast, even amovant who has been indictedmaybe able to avail himself ofthe Perlman doctrine. Perlman, 247 U.S. at 9-10. Thus, extending Perlman to appeals from orders denying Rule 41(g) motions would allow appellate courts to exercise jurisdiction over those appeals even when the15

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movant's attempts to recover the property are "tied to a criminal prosecution 

### in esse" for the purposes of 

### DiBella. Given the concerns the Supreme Court expressed about "disruption to the conduct of a criminal trial," 

### DiBella, 369 U.S. at 129, we are hesitant to recognize this end-run around thejurisdictional limitations in

### DiBella.

The Supreme Court recently cautioned that "the class of collaterally appealable orders must remain 'narrow and selective in its membership.' This admonition has acquired special force in recent years with the enactment oflegislation designating rulemaking, 'not expansion by court decision,' as the preferred means for determining whether and when prejudgment orders should be immediately appealable." 

### Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 130 S. Ct. 599, 609 (2009) (quoting 

### Will v. Hallock, 546 U.S. 345, 350 (2006); 

### Swint v. Chambers Cnty. Comm 'n, 514 U.S. 35, 48 (1995)) (referring to the Rules Enabling Act and subsequent amendments to the Act's codified provisions); 

### see also id. at 610 (Thomas, J., concurring). We would be ill-advised to expand 

### Perlman's scope because its "Delphic" language is capable of capturing a broad swathe of district court orders without the indicia of finality. The danger of applying the 

### Perlman rationale too readily is that 

### Perlman itself "does not wrestle withthebroadpolicy issues [relatingto finality] which perhaps had to await 

### Cobbledick to be adequately disclosed." 

### In re Oberkoetter, 612 F.2d 15, 18 (1st Cir. 1980), 

### overruled
on other grounds by In re GrandJury Subpoenas, 123 F.3d 695, 697 (1st Cir. 1997). Appellants most commonly invoke the doctrine in the context of an ongoing grand jury investigation. 15B CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE § 3914.23 at 166-67 (2d ed. 1992). By permitting appeals during the pendency of these16

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... overload crowded appellate dockets." In re Oberkoetter, 612 F.2d at 18. Heeding the admonition in Mohawk, we decline

- invitation to workthis unprecedented extension ofPerlman.

Because we hold thatthe Perlman doctrine does not apply to appeals from orders denying Rule 41(g) motions, it cannot afford this courtjurisdiction overthis appeal.

IV

For the forgoing reasons, the appeal is dismissed for lack ofappellatejurisdiction.
So ordered.PUBLIC COPY- SEALED INFORMATIONDELETED
KAVANAUGH, Circuit Judge, concurring: I join the Court's fine opinion but note that our decision does not foreclose interlocutory appellate jurisdiction under Perlman when (i) the underlying action is not a Rule 41(g) motion for return ofproperty and (ii) the party whose documents were seized raises an attorney-client privilege objection. See In re Berkley & Co., Inc., 629 F.2d 548, 549-51 (8th Cir. 1980). Here, however, the attorney-client privilege issue has become moot during the pendency ofthe appeal. Therefore, the Court properly does not address the merits ofpetitioner's attorneyclientprivilege arguments.