Sunday, August 07, 2005

Case o' The Week: Austin's Powers Not Enough for Interlocutory Appeal

The Ninth avoids deciding an interesting twist on Joint Defense Agreements, and while doing so lays out the ground rules for mounting three different types of interlocutory appeals. See United States v. Austin, __ F.3d __, 2005 WL 1803902 (9th Cir. Aug. 2, 2005), available here.

(Joint Defense Agreements are one topic at the Complex Litigation Seminar, to be held Aug. 18-20 at the San Francisco Mark Hopkins (right). Further information below).

Players: Senior Judge Ferguson sidesteps the Joint Defense Agreement ("JDA") issue for the Court.

Facts: RICO defendants had a joint defense agreement, on one of them flips and cooperates with the government. Id. at *1. The government moves to strike or clarify the JDA, permitting the snitch to testify as to communications made between defendants – outside of the presence of counsel – before the snitch withdrew from the JDA. Id. The district court ruled "that statements made during discussions between inmates in their cells with no lawyers present are no covered as confidential communications under the joint defense privilege." Id. The defense brought an interlocutory appeal. Id. at*2.

Issue(s): 1. Is this decision by the district court an appealable interlocutory order? 2. Are communications between defendants – outside of the presence of counsel – protected by a JDA?

Held: 1. Re: Interlocutory Appeal: "We hold that the District Court’s order is not immediately appealable under the collateral order doctrine, the Perlman rule, or as a writ of mandamus and, therefore, dismiss Defendants’ appeal for lack of jurisdiction." Id. at *1. 2. Re: JDA and confidential communications: "[W]e do not decide whether the joint defense privilege ever protects inmate-to-inmate conversations in the absence of counsel." Id. at *8.

Of Note: This case is primarily interesting for its thorough discussion of three types of interlocutory appeals: i) the "collateral order" doctrine, id. at *2-*5, the "Perlman Rule" (relating to subpoenas and discovery orders), id. at *6, and a petition for a writ of mandamus, id. at *7. Counsel hoping to take up a ruling before trial (and want defense counsel hasn’t wanted to do so?) should read this decision first – scenarios permitting interlocutory appeal are few and far between.

How to Use: The defense seemed tantalizingly close to getting to the merits of their argument under the "collateral order doctrine." Id. at *6. The appeal ultimately stumbled because the defense sought disclosure of the snitch’s statements, to identify any communications that might have been confidential. Id. This was too vague for the Court, which held that absent identifying specific privileged statements the defense had not shown that their claim was effectively unreviewable on appeal from judgment. Id. at *5. If raising an interlocutory appeal, anticipate this third hurdle of the collateral order doctrine and salt the appellate record with declarations – under seal, if necessary – specifically identifying the injury that will be unreviewable if the Court of Appeals does not take immediate action.

For Further Reading: JDAs are a hot and controversial topic in complex cases. See article here. The issue has been muddied by a notorious and much-debated decision in the Ninth Circuit, United States v. Henke, 222 F.3d 633 (9th Cir. 2000). Former N.D. Cal. Chief Judge Patel has weighed in an equally controversial decision, in United States v. Stepney, 246 F. Supp. 2d 1069 (N.D. Cal. 2003) (addressing chaos in which I had a hand).

JDAs will be one of many topics discussed at the upcoming Complex Case Seminar, hosted by the Administrative Office of the United States Courts at the Mark Hopkins hotel in San Francisco, (pictured above) from August 18-20. Some spaces are still available - CJA counsel and Federal Public Defenders may attend. To enroll, go to, and click on the "Training" button.

Steven Kalar, Senior Litigator N.D. Cal FPD. Website available at


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