     14-572
     United States v. Doe

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 14th day of April, two thousand fourteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               14-572
16
17       JOHN DOE,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21            Appeal from an order of the United States District
22       Court for the Eastern District of New York.
23
24            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
25       AND DECREED that the appeal be DISMISSED, and the petition
26       for mandamus be DENIED.
27


                                                  1
1        John Doe appeals from an oral order of the United

2    States District Court for the Eastern District of New York,

3    granting the government’s motion for a protective order that

4    would allow proffer statements made by Doe to be disclosed

5    to his codefendants.    Doe argues the government is

6    contractually barred from disclosure to his codefendants

7    unless he triggers a condition set forth in the proffer

8    agreements.   We assume the parties’ familiarity with the

9    underlying facts, the procedural history, and the issues

10   presented for review.

11       The government contests our jurisdiction to hear this

12   interlocutory appeal.    Typically, this Court lacks

13   jurisdiction to entertain an appeal until the district court

14   renders a final judgment.    See 28 U.S.C. § 1291.     Doe,

15   however, argues his appeal is properly brought pursuant to

16   the collateral order doctrine, see Cohen v. Beneficial

17   Indus. Loan Corp., 337 U.S. 541, 546 (1949), or as a

18   petition for a writ of mandamus, see In re Zyprexa Prods.

19   Liab. Litig., 594 F.3d 113, 118 (2d Cir. 2010).

20        The collateral order doctrine permits an appeal of a

21   “‘small class’ of collateral rulings that, although they do

22   not end the litigation, are appropriately deemed ‘final.’”

23   Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009)

24   (quoting Cohen, 337 U.S. at 545-46).    Only decisions “‘that

                                    2
1    are conclusive, that resolve important questions separate

2    from the merits, and that are effectively unreviewable on

3    appeal from the final judgment in the underlying action’”

4    fall within this exception to the rule of finality.       Id.

5    (quoting Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42

6    (1995)).   “In making this determination, we do not engage in

7    an individualized jurisdictional inquiry.    Rather, our focus

8    is on the entire category to which a claim belongs.”      Id. at

9    107 (internal quotation marks and citations omitted).

10       The policy embodied in 28 U.S.C. § 1291 “is at its

11   strongest in the field of criminal law.”    United States v.

12   Culbertson, 598 F.3d 40, 46 (2d Cir. 2010) (internal

13   quotation marks omitted).    As Doe’s counsel concedes,

14   disclosure of these proffer statements is a routine

15   practice; we therefore cannot conclude that the “entire

16   category,” Mohawk Indus., 558 U.S. at 107, of orders

17   sanctioning the disclosure of proffer statements raises

18   issues of such importance as to justify an exception to the

19   final judgment rule.    We conclude that we lack jurisdiction

20   to hear Doe’s appeal.

21       Alternatively, we may construe Doe’s appeal as a

22   petition for a writ of mandamus.    See Hong Mai Sa v. Doe,

23   406 F.3d 155, 158 (2d Cir. 2005); see also 28 U.S.C. §

24   1651(a).   Mandamus, however, “‘is a drastic and

                                    3
1    extraordinary remedy reserved for really extraordinary

2    causes. . . . [O]nly exceptional circumstances amounting to

3    a judicial usurpation of power or a clear abuse of

4    discretion will justify the invocation of this extraordinary

5    remedy.’”    In re Zyprexa, 594 F.3d at 118 (quoting Cheney v.

6    U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380

7    (2004)).    The district court’s order does not rise to such

8    an abuse of discretion.    Again, the disclosure of proffer

9    statements such as these is a common practice and the court

10   issued a protective order in light of Doe’s safety concerns.

11   Therefore, we deny Doe’s petition for a writ of mandamus.

12       That said, our disposition does not endorse the

13   district court’s decision, nor limit the ability of the

14   court to reconsider its order, including giving further

15   consideration to the advisability of more restrictive

16   conditions on the government’s proposed disclosures, in

17   light of the refinement of the government’s position during

18   the pendency of the appeal.    While before the district court

19   the government took the position that it had an obligation

20   to disclose Doe’s proffer statements to his codefendants

21   prior to trial, the government has retreated from that

22   position before us.

23       This change in the government’s position may justify

24   another review of the factors relevant to an appropriate

                                    4
1    protective order in light of Doe’s concerns for the safety

2    of his family.   The government advised the district court

3    that it saw no safety concerns because Doe was not

4    identified as a cooperating witness.   Yet the government had

5    earlier taken pains to offer Doe reassurance that the

6    government had not disclosed the proffer statements or

7    identified him as a potential cooperating witness.   It

8    requires no great leap for codefendants to fear that Doe

9    might become a damaging cooperating witness.

10       The government also took the position in the district

11   court that safety is a factor that need not be considered

12   while the appellant is separated from his codefendants.

13   This position discounts the risk that the pretrial detainees

14   may have undetained allies perform retaliatory or

15   intimidatory acts against the family of a codefendant whom

16   they learn has made extensive incriminating statements about

17   them, and who they fear may decide to cooperate with the

18   government.

19       The benefits of resolving anticipated issues before

20   trail may in this instance be attenuated; Doe will have a

21   strong incentive to avoid triggering admissibility of his

22   statements, and the ability of co-defendants’ counsel to

23   redact the statements prior to trial may be impaired by the



                                   5
1    difficulty of knowing in advance what portions of the

2    statements (if any) may ultimately be admissible.

3        For the foregoing reasons, Doe’s appeal is DISMISSED

4    for want of jurisdiction and, to the extent it may be

5    construed as a petition for a writ of mandamus, the petition

6    is DENIED.

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




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