Where a man’s challenge to the search protocol to be used by the government in reviewing material seized by from the man was rejected by the District Court, his appeal was dismissed. If a motion seeks more than the return of property, or if it is in any way tied to a criminal prosecution in esse against the movant, then immediate review is prohibited.
Background
In early 2022, FBI and IRS agents investigated Doe and his businesses for suspected wire fraud, money laundering and tax fraud. The agents sought and obtained three search warrants from a neutral and detached magistrate, which authorized the government to search Doe’s apartment, office and vehicle for evidence of the suspected crimes. But the government anticipated that it might encounter materials covered by the attorney-client privilege or work-product doctrine during its search. So it elected to include a provision in the warrant establishing a filter protocol for any protected items, which the magistrate judge approved.
Doe moved before a magistrate judge to intervene in the District Court proceeding granting the search warrants “in order to assert valid claims of privilege and thereby avoid the deprivation of his constitutional rights.” He then filed a second motion “pursuant to the Fourth, Fifth, and Sixth Amendments; Federal Rule of Civil Procedure 65; and Federal Rules of Criminal Procedure 16(d) and 41(g) to enjoin the government from reviewing the seized material utilizing the ex parte filter protocol set forth in the search warrant.”
The government didn’t oppose the intervention motion, and the magistrate judge granted it. The magistrate judge, however, denied Doe’s substantive motion. He agreed that a Rule 41(g) motion is the proper method for seeking an injunction against a proposed filter protocol. But on the merits, he found that Doe is not entitled to such an injunction because Doe does not satisfy any of the four factors required for a preliminary injunction.
Doe subsequently appealed the magistrate’s denial of his filter-protocol motion to the District Court. The District Court, in turn, considered the Winter factors anew and agreed that Doe is not entitled to an injunction. So it denied Doe’s appeal on the merits.
Jurisdiction
Although Doe affixed several labels to his motion below, he and the government agree that the District Court properly treated it as one under Federal Rule of Criminal Procedure 41(g). Such orders, however, are rarely final orders. Pursuant to DiBella v. United States, 369 U.S. 121 (1962), if it seeks more than the return of property, or if it is in any way tied to a criminal prosecution in esse against the movant, then immediate review is prohibited.
To start, Doe’s motion is not “solely for the return of property.” The motion expressly seeks to stop “the government from reviewing the seized material” until a filter protocol is established and used to review the materials for privileged documents. Doe’s motion also fails under the second prong because the records at issue are tied to a criminal prosecution in esse against him. The court therefore lacks jurisdiction under § 1291.
Section 1292(a)(1), however, provides appellate jurisdiction over “[i]nterlocutory orders … granting, continuing, modifying, refusing or dissolving injunctions.” Doe contends that he satisfies § 1292(a)(1) because his motion before the district sought injunctive relief and the court treated it as one seeking injunctive relief.
The court is skeptical that Doe’s filter-protocol motion is really a motion for an injunction. But it need not decide whether it is because, even if it were, this court has long held that DiBella would still apply. Since Doe’s motion fails DiBella’s test, the court lacks both § 1291 and § 1292(a)(1) jurisdiction over his appeal.
Appeal dismissed.
Concurring opinion
Quattlebaum, J., concurring:
The attorney-client privilege and the work-product doctrine go to the heart of our justice system and this appeal. John Doe, the target of a criminal investigation, asserts that a District Court violated those privileges by permitting the government to review materials seized from him pursuant to a search warrant.
But to address these issues, we must first decide whether we have appellate jurisdiction to hear his interlocutory challenge to the District Court order authorizing the government’s protocol for screening potentially privileged information. The majority holds that we do not. Ultimately, I agree.
However, I write separately because I arrive at that destination from a different path and because I fear our conclusion today, and the precedent that requires that conclusion, undermines the attorney-client privilege and the work-product doctrine.
United States v. Doe, Case No. 23-4330, Aug. 2, 2024. 4th Cir. (Richardson), from WDNC at Charlotte (Conrad). Elliot Sol Abrams for Appellant. John Gibbons for Appellee. 26 pp.