    Case: 14-30295   Document: 00512831156   Page: 1   Date Filed: 11/10/2014




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                              No. 14-30295
                                                              United States Court of Appeals
                                                                       Fifth Circuit

                                                                     FILED
                                                             November 10, 2014
                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                            Clerk

                                       Plaintiff−Appellee,

versus

STACEY JACKSON,

                                       Defendant–Appellee.

versus

TIMES-PICAYUNE, L.L.C., Doing Business as NOLA Media Group,

                                       Movant–Appellant.




               Appeal from the United States District Court
                  for the Eastern District of Louisiana




Before SMITH, BARKSDALE, and HAYNES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


     Times-Picayune, L.L.C. (“Times-Picayune”), appeals the denial of its
motion to quash a subpoena duces tecum that required the newspaper to pro-
duce, for in camera review as part of Stacey Jackson’s criminal defense,
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                               No. 14-30295
identifying information about two anonymous commenters.           In the period
between the subpoena and this appeal, however, Times-Picayune complied and
delivered the documents, and the district court declined to turn them over to
Jackson, who pleaded guilty.      Because this case now lacks any concrete
adverseness and we can no longer offer Times-Picayune any meaningful rem-
edy, we dismiss the appeal as moot.


                                       I.
      In 2013, a grand jury indicted Jackson for solicitation of bribes, theft of
federal funds, conspiracy, and obstruction of justice. She claimed there was
prosecutorial misconduct during the grand jury investigation. She hoped to
fortify her prosecutorial-misconduct defense by proving that officials from the
local U.S. Attorney’s office (“USAO”) had improperly commented on a story
about the investigation on nola.com—a news site owned by Times-Picayune.
      Jackson applied for a subpoena duces tecum under Federal Rule of Crim-
inal Procedure 17(c) to compel Times-Picayune to disclose identifying informa-
tion about two nola.com users—“aircheck” and “jammer1954”—who had com-
mented on Jackson’s guilt. The magistrate judge (“MJ”) granted the subpoena
application. He later denied Times-Picayune’s motion to quash but modified
the subpoena such that the identifying information would be reviewed in cam-
era first. The MJ would independently attempt to determine whether “air-
check” and “jammer1954” were USAO officials, and if they were not, he would
not disclose the information to Jackson. The district court approved the modi-
fied subpoena, and Times-Picayune appealed.
      While this expedited appeal was pending, however, Times-Picayune com-
plied and delivered the information for in camera review, and the MJ deter-
mined that one commenter was not a USAO official and that the other was
unidentifiable. As a result, the MJ did not disclose any of the identifying

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                                No. 14-30295
information to Jackson, and the court denied her motion to dismiss the indict-
ment for prosecutorial misconduct. Jackson then agreed to plead guilty to one
count of conspiracy to defraud the United States under 8 U.S.C. § 371 and
waived substantially all her appeals.


                                        II.
      We must determine whether the matter is moot. This court reviews jur-
isdictional issues such as mootness de novo. Moore v. Hosemann, 591 F.3d 741,
744 (5th Cir. 2009). “An appeal must be dismissed when an event occurs while
a case is pending on appeal that makes it impossible for the court to grant any
effectual relief whatever to a prevailing party.” Netsphere, Inc. v. Baron, 703
F.3d 296, 314 (5th Cir. 2012) (internal quotation marks omitted). But even if
the court cannot offer a party its remedy of choice, a case is not moot so long as
the court “can fashion some form of meaningful relief.” Church of Scientology
of Cal. v. United States, 506 U.S. 9, 12 (1992).
      Jackson reasons that Times-Picayune’s compliance with the subpoena,
along with her subsequent guilty plea, renders us unable to offer any useful
relief. Times-Picayune responds with a number of remedies it claims the court
might grant if the newspaper were to prevail on the merits of the subpoena,
but most of these are no longer available because of Jackson’s guilty plea. She
can no longer subpoena additional documents from Times-Picayune or appeal
previously denied subpoena requests. And under her plea agreement, she has
waived any appeal related to the prosecutorial-misconduct defense. Her case
is all but finished, along with her interest in this case.
      Times-Picayune does point to one remedy that is not directly extin-
guished by Jackson’s plea agreement: return of the documents from the district
court. Relying on Church of Scientology, it maintains that, if this court con-
cludes that the subpoena was improper, we could order the MJ to return the

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                                 No. 14-30295
disclosed documents still held from in camera review.
      But Times-Picayune’s analogy to Church of Scientology fails because of
a crucial difference. In that case, the Court, 506 U.S. at 10−12, addressed a
situation in which the entity had complied with a subpoena and disclosed docu-
ments to the opposing party, the IRS. The government argued that the case
was moot; the IRS already had the documents, and it could not undo the dis-
closure. Id. at 12. But although it could not perfectly restore the status quo
ante, the Court, id. at 18, held that it was a sufficient remedy to avoid mootness
for the IRS to return or destroy any copies.
      Jackson, as the opposing party, cannot offer that sort of relief. The news-
paper wants the disclosed documents returned or destroyed, but Jackson does
not have them. The MJ determined, after in camera review, that the informa-
tion was not relevant to the prosecutorial-misconduct defense and declined to
turn it over. So even if we were to determine that the subpoena was wrongly
issued, Jackson has never seen the identifying information and has nothing to
give back.
      Moreover, for all its emphasis on the importance of returning the identi-
fying information, Times-Picayune has failed to pursue remedies that are
already available. Federal Rule of Criminal Procedure 41(g) allows it to move
for the documents’ return. DiBella v. United States, 369 U.S. 121, 131–32
(1962); Bailey v. United States, 508 F.3d 736, 738 (5th Cir. 2007). But Times-
Picayune concedes that it has not attempted a Rule 41(g) motion. Nor is its
right to have the property returned necessarily tied to the legality of the under-
lying subpoena. As this court and others have indicated, when the case has
ended, the government bears the burden of showing a continuing interest in
the property to overcome a Rule 41(g) motion for its return. See United States
v. Oduu, 564 F. App’x 127, 130 (5th Cir. 2014); United States v. Chambers, 192
F.3d 374, 377–78 (3d Cir. 1999). Consequently, an order from this court that

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                                 No. 14-30295
the district court return or destroy any documents from in camera review is
neither an available nor a necessary remedy.
     Without any meaningful remedy to grant to Times-Picayune, there is no
case or controversy.    The matter is moot, and the appeal, accordingly, is
DISMISSED.




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