25-1726 In re Grand Jury Subpoena Dated May 29, 2025
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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of December, two thousand twenty-five.
PRESENT:
DENNY CHIN, RICHARD J. SULLIVAN, ALISON J. NATHAN, Circuit Judges. _____________________________________
IN RE GRAND JURY SUBPOENA DATED MAY 29, 2025 ______________________________________
UNITED STATES OF AMERICA,
Movant-Appellee,
v. No. 25-1726 SEALED APPELLANT,
Respondent-Appellant. * _____________________________________
For Respondent-Appellant: PATRICK O’KEKE, O’keke & Associates, P.C., Brooklyn, NY.
For Movant-Appellee: HENRY L. ROSS (Mitzi S. Steiner, Jacob R. Fiddelman, on the brief), Assistant United States Attorneys, for Jay Clayton, United States Attorney for the Southern District of New York, New York, NY.
Appeal from an order of the United States District Court for the Southern
District of New York (Katherine Polk Failla, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the June 24, 2025 order of the district court is
AFFIRMED.
Sealed Appellant appeals from the district court’s order holding him in
contempt for failing to comply with two orders directing him to produce, pursuant
to a grand-jury subpoena, draft reports arising out of Sealed Appellant’s former
employment. We assume the parties’ familiarity with the underlying facts,
procedural history, and issues on appeal.
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
2 We previously dismissed this appeal for lack of jurisdiction. See In re Grand
Jury Subpoena Dated Apr. 26, 2023, No. 24-573, 2025 WL 799269, at *2 (2d Cir. Mar.
13, 2025). Because Sealed Appellant has since defied the district court’s order
enforcing the subpoena and was held in contempt, we now possess jurisdiction.
See In re Air Crash at Belle Harbor, 490 F.3d 99, 104 (2d Cir. 2007) (“To obtain
appellate review, the subpoenaed person ordinarily must defy the district court’s
enforcement order, be held in contempt, and then appeal the contempt order,
which is regarded as final under [section] 1291.” (internal quotation marks
omitted)). Proceeding to the merits, Sealed Appellant argues that the grand-jury
subpoena violates his Fifth Amendment right because the very act of producing
the draft reports would be a form of compelled self-incrimination. We disagree.
The Fifth Amendment provides that “[n]o person . . . shall be compelled in
any criminal case to be a witness against himself.” U.S. Const. amend. V.
Generally, the Fifth Amendment “applies only when the accused is compelled to
make a [t]estimonial [c]ommunication that is incriminating.” Fisher v. United
States, 425 U.S. 391, 408 (1976). Nevertheless, the Supreme Court has explained
that “[t]he act of producing evidence in response to a subpoena . . . has
communicative aspects of its own,” and thus may constitute an incriminating
3 testimonial communication “depend[ing] on the facts and circumstances” of the
case. Id. at 410.
At the same time, the Supreme Court has recognized an exception to the
rule against self-incrimination, known as the foregone-conclusion doctrine, which
applies when “[t]he existence and location of the [subpoenaed] papers are a
foregone conclusion and the [subpoena recipient] adds little or nothing to the sum
total of the [g]overnment’s information by conceding that he in fact has the
papers.” Id. at 411. To invoke the foregone-conclusion exception, “the
[g]overnment must establish with reasonable particularity its knowledge as to
(1) [the] existence of the documents, (2) the [recipient’s] possession or control of
the documents[,] and (3) the authenticity of the documents.” United States v.
Fridman, 974 F.3d 163, 174 (2d Cir. 2020) (internal quotation marks omitted). “The
[g]overnment must know[] and not merely infer[]” these elements, which must be
demonstrated by a quantum of proof that falls between a “mere inference” and
“perfect knowledge.” Id. at 174 n.3 (emphases deleted and internal quotation
marks omitted). If it does so, the compelled production of such documents “does
not run afoul of the Fifth Amendment.” Id. at 174 (citing Fisher, 425 U.S. at 411).
We review a district court’s “determination of questions of law as to the
4 Fifth Amendment privilege” de novo, but “we will overturn [a] [d]istrict [c]ourt’s
[factual] determination as to whether ‘the act of producing the documents would
involve testimonial self-incrimination’ only where such a finding ‘has no support
in the record.’” United States v. Greenfield, 831 F.3d 106, 114 (2d Cir. 2016)
(emphasis added) (quoting United States v. Doe, 465 U.S. 605, 613–14 (1984)).
Having considered the record as a whole, we agree with the district court
that the foregone-conclusion doctrine clearly applies here. With respect to the
first prong of the doctrine, the district court credited the testimony of two
witnesses who represented that Sealed Appellant’s attorney, Patrick O’keke,
disclosed the existence of the draft reports on at least two occasions. Specifically,
Assistant United States Attorney Mitzi Steiner testified that O’keke disclosed to
her the existence of the reports at a January 12, 2023 meeting. Steiner further
testified that during a January 23, 2023 phone call, O’keke reiterated the existence
of these reports and provided details concerning their contents, as well as where
they were being stored. This testimony was corroborated by Steiner’s
contemporaneous notes of the call, the testimony of a law-student intern who also
participated in the call, the intern’s handwritten contemporaneous notes of the
call, the research assignment that Steiner gave to the intern regarding corporate
5 records held by an employee, and the subpoena that Steiner subsequently issued
to O’keke to produce the draft reports. Although Sealed Appellant insists that
O’keke used only “noncommittal words and phrases” when discussing the
existence of the draft reports, Sealed Appellant Br. at 4, we will not disturb the
district court’s finding that “O’[k]eke spoke in a declarative tone and not a
hypothetical one regarding his possession of the draft report,” Sp. App’x at 10,
which was supported by Steiner’s and the intern’s testimony and notes to that
effect.
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25-1726 In re Grand Jury Subpoena Dated May 29, 2025
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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of December, two thousand twenty-five.
PRESENT:
DENNY CHIN, RICHARD J. SULLIVAN, ALISON J. NATHAN, Circuit Judges. _____________________________________
IN RE GRAND JURY SUBPOENA DATED MAY 29, 2025 ______________________________________
UNITED STATES OF AMERICA,
Movant-Appellee,
v. No. 25-1726 SEALED APPELLANT,
Respondent-Appellant. * _____________________________________
For Respondent-Appellant: PATRICK O’KEKE, O’keke & Associates, P.C., Brooklyn, NY.
For Movant-Appellee: HENRY L. ROSS (Mitzi S. Steiner, Jacob R. Fiddelman, on the brief), Assistant United States Attorneys, for Jay Clayton, United States Attorney for the Southern District of New York, New York, NY.
Appeal from an order of the United States District Court for the Southern
District of New York (Katherine Polk Failla, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the June 24, 2025 order of the district court is
AFFIRMED.
Sealed Appellant appeals from the district court’s order holding him in
contempt for failing to comply with two orders directing him to produce, pursuant
to a grand-jury subpoena, draft reports arising out of Sealed Appellant’s former
employment. We assume the parties’ familiarity with the underlying facts,
procedural history, and issues on appeal.
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
2 We previously dismissed this appeal for lack of jurisdiction. See In re Grand
Jury Subpoena Dated Apr. 26, 2023, No. 24-573, 2025 WL 799269, at *2 (2d Cir. Mar.
13, 2025). Because Sealed Appellant has since defied the district court’s order
enforcing the subpoena and was held in contempt, we now possess jurisdiction.
See In re Air Crash at Belle Harbor, 490 F.3d 99, 104 (2d Cir. 2007) (“To obtain
appellate review, the subpoenaed person ordinarily must defy the district court’s
enforcement order, be held in contempt, and then appeal the contempt order,
which is regarded as final under [section] 1291.” (internal quotation marks
omitted)). Proceeding to the merits, Sealed Appellant argues that the grand-jury
subpoena violates his Fifth Amendment right because the very act of producing
the draft reports would be a form of compelled self-incrimination. We disagree.
The Fifth Amendment provides that “[n]o person . . . shall be compelled in
any criminal case to be a witness against himself.” U.S. Const. amend. V.
Generally, the Fifth Amendment “applies only when the accused is compelled to
make a [t]estimonial [c]ommunication that is incriminating.” Fisher v. United
States, 425 U.S. 391, 408 (1976). Nevertheless, the Supreme Court has explained
that “[t]he act of producing evidence in response to a subpoena . . . has
communicative aspects of its own,” and thus may constitute an incriminating
3 testimonial communication “depend[ing] on the facts and circumstances” of the
case. Id. at 410.
At the same time, the Supreme Court has recognized an exception to the
rule against self-incrimination, known as the foregone-conclusion doctrine, which
applies when “[t]he existence and location of the [subpoenaed] papers are a
foregone conclusion and the [subpoena recipient] adds little or nothing to the sum
total of the [g]overnment’s information by conceding that he in fact has the
papers.” Id. at 411. To invoke the foregone-conclusion exception, “the
[g]overnment must establish with reasonable particularity its knowledge as to
(1) [the] existence of the documents, (2) the [recipient’s] possession or control of
the documents[,] and (3) the authenticity of the documents.” United States v.
Fridman, 974 F.3d 163, 174 (2d Cir. 2020) (internal quotation marks omitted). “The
[g]overnment must know[] and not merely infer[]” these elements, which must be
demonstrated by a quantum of proof that falls between a “mere inference” and
“perfect knowledge.” Id. at 174 n.3 (emphases deleted and internal quotation
marks omitted). If it does so, the compelled production of such documents “does
not run afoul of the Fifth Amendment.” Id. at 174 (citing Fisher, 425 U.S. at 411).
We review a district court’s “determination of questions of law as to the
4 Fifth Amendment privilege” de novo, but “we will overturn [a] [d]istrict [c]ourt’s
[factual] determination as to whether ‘the act of producing the documents would
involve testimonial self-incrimination’ only where such a finding ‘has no support
in the record.’” United States v. Greenfield, 831 F.3d 106, 114 (2d Cir. 2016)
(emphasis added) (quoting United States v. Doe, 465 U.S. 605, 613–14 (1984)).
Having considered the record as a whole, we agree with the district court
that the foregone-conclusion doctrine clearly applies here. With respect to the
first prong of the doctrine, the district court credited the testimony of two
witnesses who represented that Sealed Appellant’s attorney, Patrick O’keke,
disclosed the existence of the draft reports on at least two occasions. Specifically,
Assistant United States Attorney Mitzi Steiner testified that O’keke disclosed to
her the existence of the reports at a January 12, 2023 meeting. Steiner further
testified that during a January 23, 2023 phone call, O’keke reiterated the existence
of these reports and provided details concerning their contents, as well as where
they were being stored. This testimony was corroborated by Steiner’s
contemporaneous notes of the call, the testimony of a law-student intern who also
participated in the call, the intern’s handwritten contemporaneous notes of the
call, the research assignment that Steiner gave to the intern regarding corporate
5 records held by an employee, and the subpoena that Steiner subsequently issued
to O’keke to produce the draft reports. Although Sealed Appellant insists that
O’keke used only “noncommittal words and phrases” when discussing the
existence of the draft reports, Sealed Appellant Br. at 4, we will not disturb the
district court’s finding that “O’[k]eke spoke in a declarative tone and not a
hypothetical one regarding his possession of the draft report,” Sp. App’x at 10,
which was supported by Steiner’s and the intern’s testimony and notes to that
effect. See Greenfield, 831 F.3d at 114.
With respect to the second prong of the foregone-conclusion doctrine –
whether the recipient is in possession or control of the documents – the record
similarly supports the district court’s conclusion that “the draft reports were first
in [Sealed Appellant’s] possession[,] then in Mr. O’[k]eke’s[,] and then returned to
[Sealed Appellant].” Sp. App’x at 16. As Steiner and the intern testified, O’keke
informed them in January 2023 that he possessed the draft reports. O’keke
subsequently disclosed that on March 2, 2023, he returned Sealed Appellant’s file
to him, “including any and all documents [Sealed Appellant] may have brought
in for [O’keke’s] review.” Sealed App’x at 37. As a result, when the subpoena
was issued less than two months later on April 26, 2023, the government had
6 sufficient knowledge that the reports were in Sealed Appellant’s possession. 1 See
Fridman, 974 F.3d at 175 (“The [g]overnment must prove its knowledge [of
existence and possession or control] at the time the summons was issued.”); see
also Greenfield, 831 F.3d at 125 (“[I]n many circumstances, the [g]overnment’s
ability to establish existence and control as of an earlier date does permit an
inference of existence and control as of the date of the [s]ummons.” (emphasis
added)). This is especially true given “the absence of any indication that the
documents were transferred to someone else or were destroyed” and “the
relatively short time period between the date as of which possession was shown
and the date of the ensuing” subpoena. Greenfield, 831 F.3d at 125–26 (alteration
adopted and internal quotation marks omitted).
Finally, as to the third prong – the authenticity of the documents – the record
supports the district court’s conclusion that the government could independently
authenticate the draft reports. We have previously explained that documentary
evidence can be independently authenticated “through the testimony of third
parties familiar with that type of document,” “by comparison to a prior version of
1 Because the grand jury that issued the April 2023 subpoena had since expired, the government “cover[ed] its bases,” Sp. App’x at 23, by empaneling “a new, current grand jury,” Gov’t Br. at 17, and reissuing a “substantially identical” subpoena, Add. at 14 n.1, on May 29, 2025. The government then served Sealed Appellant with the reissued subpoena on June 3.
7 the document,” or “by comparison to other related documents.” Id. at 118. We
have likewise held that a document can be independently authenticated by
“asking the trier of fact to compare” the different versions, In re Grand Jury
Subpoena Duces Tecum Dated Oct. 29, 2002, 1 F.3d 87, 93 (2d Cir. 1993), through the
testimony of an individual with knowledge of the author’s handwriting, cf., e.g.,
In re Grand Jury Subpoena Dated July 6, 2005, 256 F. App’x 379, 382 (2d Cir. 2007)
(discussing voice authentication), or through expert testimony, see id. The district
court correctly noted that each of these methods could be employed here – i.e., the
government could call another employee who was familiar with the report, ask
the trier of fact to compare the filed and draft versions of the report, call a witness
familiar with Sealed Appellant’s handwriting, or call a handwriting expert.
In sum, we conclude that ample evidence supported each of the three
elements of the foregone-conclusion doctrine, and that the grand-jury subpoena
did not compromise Sealed Appellant’s Fifth Amendment right against compelled
self-incrimination.
8 * * *
We have considered Sealed Appellant’s remaining arguments and find
them to be without merit. Accordingly, we AFFIRM the order of the district
court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court