UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-5144

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

IN THE MATTER OF THE SEARCH OF 235 SOUTH QUEEN STREET, 

MARTINSBURG, WV, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Northern 

District of West Virginia, at Martinsburg. Frederick P. 

Stamp, Jr., Senior District Judge. (3:06-mj-00033-FPS-JES-1) 

Argued: September 25, 2008 Decided: November 4, 2008 

Before MOTZ, KING, and DUNCAN, Circuit Judges. 

Dismissed by unpublished per curiam opinion. Judge King wrote a 

separate concurring opinion. 

ARGUED: William Benjamin Moffitt, III, MOFFITT & BROADNAX, 

Alexandria, Virginia, for Appellant. Paul Thomas Camilletti, 

OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West 

Virginia; Randolph John Bernard, OFFICE OF THE UNITED STATES 

ATTORNEY, Wheeling, West Virginia, for Appellee. ON BRIEF:

Sharon L. Potter, United States Attorney, Wheeling, West 

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

Appellant was indicted on various charges stemming from her 

alleged scheme to defraud the government by over-billing for her 

legal services to a federally subsidized program. The United 

States sought access to her closed case files and electronic 

records. Appellant argued in response that the documents were 

protected by various privileges, specifically the attorneyclient privilege, the work product privilege, and the Fifth 

Amendment privilege. The district court issued an order 

rejecting Appellant’s assertions of privilege and this appeal 

followed. 

Because Appellant retains possession of the disputed 

documents and has not been cited with civil contempt for her 

refusal to turn them over, this case presents an interlocutory 

appeal over which we lack jurisdiction. Accordingly, we 

dismiss.1

I. 

Appellant is an attorney licensed to practice in West 

Virginia. On December 22, 2005, Appellant incorporated her law 

 1

Appellant also raises the issue of whether the subpoenas, 

and subsequent court orders, ordering production of the disputed 

documents are moot. Because we dismiss for lack of 

jurisdiction, we do not reach this issue. 

2
practice into a Professional Limited Liability Corporation 

(“PLLC”). During the fall of 2006, the United States Attorney’s 

Office began an investigation of Appellant’s possible fraudulent 

billing of the West Virginia Public Defender Services. On 

November 17, 2006, a search team executed a search warrant at 

Appellant’s law office. The search team failed to find all of 

Appellant’s closed case files and electronic records. On 

November 16 and 17, 2006, the investigating grand jury issued 

two subpoenas duces tecum ordering Appellant to appear on 

December 5, 2006, bringing all her closed case files, her server 

and her backup hard drive. Appellant failed to appear. 

 Appellant subsequently sent a letter to the United States 

Attorney’s Office, invoking her Fifth Amendment privilege 

against self-incrimination as to the act of producing the 

subpoenaed materials. The United States filed a motion to 

compel production of the materials sought, which the district 

court granted. Various motions, including Appellant’s requests 

for clarification and the United States’ motion to show cause, 

followed. While these motions were pending, the grand jury that 

had issued the subpoenas on November 16 and 17, 2006 indicted 

Appellant on mail fraud, wire fraud and conspiracy. Thereafter, 

3
the grand jury’s term expired and no new grand jury was 

empaneled.2

On July 11, 2007, the magistrate judge to whom the matter 

was referred issued an order ruling on the attorney-client and 

work product privileges for the various categories of subpoenaed 

documents. The magistrate judge dismissed without prejudice the 

government’s claim that the crime-fraud exception vitiated these 

privileges. The magistrate judge found that, on the evidence 

presented, the government had not established a prima facie case 

of fraud.3 The magistrate judge further held that, because 

Appellant incorporated her law practice as a PLLC on December 

22, 2005, the Fifth Amendment act of production privilege does 

not apply to corporate documents created or received after that 

 2

On July 10, 2007, the United States served a trial subpoena 

duces tecum pursuant to Federal Rule of Criminal Procedure l7(c) 

for the same disputed documents for use in a related criminal 

case. (Apparently there were clerical errors on the subpoena 

which made it technically impossible to comply with.) On July 

11, 2007, Appellant filed a motion to quash the subpoena, 

claiming that the United States was improperly using its 

subpoena power as a discovery device. The issue of whether the 

July 10, 2007 trial subpoena should be quashed or modified is 

not currently before this court. 

3

The government later submitted a supplemental memorandum, 

together with several exhibits, in support of the application of 

crime-fraud exception. These filings formed the basis of the 

district court’s November 19, 2007 ruling on the crime-fraud 

exception. 

4
date. Appellant filed several objections to the magistrate 

judge’s order. 

On November 19, 2007, the district court entered an order 

holding, in part, that the crime-fraud exception vitiated 

Appellant’s attorney-client and work product privileges with 

respect to the disputed documents and that Appellant had no 

Fifth Amendment privilege with regard to corporate documents 

created or received on or after December 22, 2005, as the 

privilege does not apply to corporations. The appeal before us 

was taken from this order. 

As of the date of oral argument, however, Appellant 

retained possession of the disputed documents and no civil 

contempt order had been filed against her. As discussed below, 

under controlling precedent such an appeal is interlocutory and 

must be dismissed for lack of jurisdiction. 

II. 

 With certain narrow exceptions, the appellate jurisdiction 

of this court extends only to appeals from final orders of a 

district court. 28 U.S.C.A § 1291 (2006) (“The courts of 

appeals . . . shall have jurisdiction of appeals from all final 

decisions of the district courts of the United States . . .”); 

see Cobbledick v. United States, 309 U.S. 323, 324-25 (1940); In 

re Carefirst of Md., Inc., 305 F.3d 253, 255 (4th Cir. 2002). 

5
Generally, for purposes of section 1291, a district court order 

is “final” if it “ends the litigation on the merits and leaves 

nothing for the court to do but execute the judgment.” Catlin 

v. United States, 324 U.S. 229, 233 (1945) (citation omitted). 

So long as the matter remains unfinished, open, or inconclusive, 

there may not be any intrusion by appeal. Cohen v. Beneficial 

Indus. Loan Corp., 337 U.S. 541, 546 (1949). The purpose of 

this final judgment rule is to combine in one review all 

reviewable stages of the proceeding in order to enhance the 

effective administration of justice, preventing the harassment 

and cost of interlocutory appeals from enfeebling the justice 

system.4 See Cohen, 337 U.S. at 546; Cobbledick, 309 U.S. at 

325. 

 Under the “collateral order doctrine”, however, 

interlocutory appeals are allowed in a small class of decisions 

that “finally determine claims of right separable from, and 

 4

The Second Circuit has further expounded on the reasons for 

the statutory requirement of finality for appealability: “the 

elimination of unnecessary appeals, since the complaining party 

may win the case or settle it; the absence of irreparable harm 

from the vast majority of orders requiring production of 

documents; the potential for harassment of litigants by nuisance 

appeals, and the fact that any appeal tends to delay or deter 

trial or settlement of a lawsuit; the burden on the reviewing 

court’s docket from appeals of housekeeping matters in the 

district courts; and the slim chance for reversal of all but the 

most unusual discovery orders.” Am. Express Warehousing, Ltd. v 

Transamerica Ins. Co., 380 F.2d 277, 280 (2d Cir. 1967). 

6
collateral to, rights asserted in the action, too important to 

be denied review and too independent of the cause itself to 

require that appellate consideration be deferred until the whole 

case is adjudicated.” Cohen, 337 U.S. at 546. For a collateral 

order to be immediately reviewable, it must meet three stringent 

conditions: the order must “[1] conclusively determine the 

disputed question, [2] resolve an important issue completely 

separate from the merits of the action, and [3] be effectively 

unreviewable on appeal from a final judgment.” Will v. Hancock, 

546 U.S. 345, 349 (2006) (quotation marks and citations 

omitted). An order that fails to meet any one of these 

requirements is not immediately appealable. See Carefirst, 305 

F.3d at 258. An order is “effectively unreviewable” only if the 

order at issue involves an asserted right “the legal and 

practical value of which would be destroyed if it were not 

vindicated before trial.” Lauro Lines S.R.L. v. Chasser, 490 

U.S. 495, 498-99 (1989) (quotation marks and citations omitted). 

Further, the value of the asserted right must be “of a high 

order.” Will, 546 U.S. at 352-53. It is not the mere avoidance 

of trial through an interlocutory appeal that counts when asking 

whether an order is effectively unreviewable if review is left 

until later, but rather what counts is the “avoidance of a trial 

that would imperil a substantial public interest.” Id.

(citation omitted) (emphasis added). 

7
 The Supreme Court has on several occasions dealt 

specifically with the appealability of discovery orders. In 

Alexander v. United States, 201 U.S. 117 (1906), the Court held 

that a federal circuit court’s order directing a witness to 

answer questions and produce documents before a special examiner 

lacked the finality requisite for appeal. Id. at 121-22. Only 

if the witness refused to comply and was held in contempt would 

the right to appeal arise. Id. Similarly, in Cobbledick, the 

Court held that a witness ordered to testify in a grand jury 

proceeding has no right of appeal “until the witness chooses to 

disobey and is committed for contempt.” 309 U.S. at 328; see

also United States v. Ryan, 402 U.S. 530, 532-33 (1971) (holding 

that the respondent may refuse to comply with an order for 

production before a grand jury and litigate those issues if 

contempt or similar proceedings are brought against him; if his 

contentions are rejected by the trial court, they will only then 

be ripe for appellate review).5 Citing Alexander, Ryan and 

Cobbledick, this court has held, “Orders enforcing subpoenas 

 5

In Perlman v. United States, 247 U.S. 7, 12-13 (1918), the 

Court allowed immediate review of an order directing a third 

party to produce documents that belonged to the appellant, 

Perlman. Id. at 12-13. Perlman claimed that these documents 

were immune from production. Id. To have denied review would 

have left Perlman without recourse because the third party could 

not have been expected to risk a contempt citation in order to 

secure for Perlman an opportunity for judicial review. Id.; see

also Ryan, 402 U.S. at 532. 

8
issued in connection with civil and criminal actions, or with 

grand jury proceedings, are normally not considered final. To 

obtain immediate review of such a district court enforcement 

order, the party to whom it is issued must defy it so that a 

contempt order, which is considered final, is entered against 

him.” Reich v. Nat’l Eng’g & Contracting Co., 13 F.3d 93, 95 

(4th Cir. 1993) (citations omitted); see also In re Subpoena 

Duces Tecum, 228 F.3d 341, 345 (4th Cir. 2000). 

 In the instant case, the district court’s order of November 

19, 2007, holding that Appellant’s claims to various privileges 

were either vitiated or inapplicable and ordering the production 

of the disputed documents, was not a final order. Rather, it 

was a single phase in the drawn out criminal investigation into 

Appellant’s billing activities. Therefore, the only way that 

the order is immediately appealable is if it fits within the 

“collateral order doctrine.” 

Since Appellant retains possession and control over the 

disputed documents (making Perlman inapplicable) and she has not 

been held in contempt for refusing to produce the documents, 

this court’s precedent controls. See Reich, 13 F.3d at 95. 

There can be no immediate review of the district court’s order 

since it is part of an ongoing dispute and Appellant has not 

been held in contempt for her failure to comply. 

9
III. 

Because Appellant’s appeal is not from a final order and 

does not meet the requirements of the collateral order doctrine, 

this court lacks appellate jurisdiction. Accordingly, the 

appeal is 

DISMISSED. 

 

10
KING, Circuit Judge, concurring: 

 I write separately to express my considered view that the 

lawyering in this case has resulted in a waste of judicial and 

legal resources. 

 Put succinctly, at oral argument the government abruptly 

abandoned its earlier position on the viability of the subpoenas 

and this entire proceeding — conceding that they are moot (and 

that this appeal is merely an “academic exercise”) because the 

grand jury expired after the defendant was indicted. The 

government had theretofore — in both the district court and its 

appellate brief — consistently maintained to the contrary. 

Thus, if the government’s mootness position had been recognized 

and adopted in a timely manner, this proceeding would not have 

occurred. In any event, the prosecution does not bear all the 

blame. If the defense had conducted some elementary research, 

it would have recognized the jurisdictional problems underlying 

its effort to pursue an interlocutory appeal. 

 Finally, the failures of the lawyers to recognize the 

obstacles attendant to their respective positions were further 

emphasized at oral argument. When the government’s lawyer was 

asked by our presiding judge whether the lawyers had “talk[ed] 

to each other,” his response was simply “never.” Such a lack of 

communication between counsel seems inexcusable, and we are 

entitled to expect more. 

11
12

 That said, I agree that this appeal must be dismissed for 

lack of jurisdiction and thus concur.