United States v. Bihn (Ceparano)

365 F. App'x 256

• Court: Court of Appeals for the Second Circuit
• Decided: February 11, 2010
• Docket: 09-2111-cr
• Status: Unpublished

Opinion

SUMMARY ORDER

On February 28, 2009, in an effort to collect on a restitution judgment with respect to Stephen Ceparano (“Stephen”), the Government issued a subpoena duces tecum and a restraining notice upon Dorothy Ceparano (“Dorothy”), Stephen’s wife. On April 7, 2009, Dorothy filed a motion seeking to vacate the restraining notice and quash the subpoena, and requesting a declaration that the United States had no interest or cause of action against her with respect to a property Dorothy owned at 17 Lipson Court, East Northport, New York or its sale proceeds. On May 13, 2009, the district court denied the motion in its entirety. This appeal followed. We assume the parties’ familiarity with the facts and specification of issues on appeal.

As an initial matter, we do not reach the question of whether the district court properly denied Dorothy’s motion to quash the subpoena because we lack jurisdiction to consider the issue. A denial of a motion to quash a subpoena is not directly appealable until the movant is held in contempt for having defied the subpoena. See Dynegy Midstream Serv., LP v. Trammochem, 451 F.3d 89, 92 (2d Cir.2006) (“a district court’s decision to compel compliance with a subpoena or to deny a motion to quash a subpoena is generally not a ‘final decision’ and therefore is not immediately appealable”) (quoting Stolt-Nielsen SA v. Celanese AG, 430 F.3d 567, 574 (2d Cir.2005)); United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 469 (2d Cir. 1996) (“To obtain appellate review, the subpoenaed party must defy the district court’s enforcement order, be held in contempt, and then appeal the contempt order, which is regarded as final under [28 U.S.C.] § 1291.”). The parties do not contest this Court’s lack of jurisdiction and we do not discuss it further here.

As to Dorothy’s motion to vacate the restraining notice, we dismiss the appeal as moot in light of the Government’s representation that the current restraining notice will expire on or around February 23, 2010, and that it has no plans to serve a renewed restraining notice at the present time.

Finally, we affirm the district court’s denial of Dorothy’s request for a declaratory judgment, but without prejudice to the initiation of a separate action to quiet title with respect to movant’s property at 17 Lipson Court, East Northport, New York.

We have considered movant’s remaining arguments and find them to be without merit.

For the foregoing reasons, this appeal is DISMISSED in part, but the order of the district court is AFFIRMED in all other respects.