United States v. Carter

995 F.3d 1222

Opinion

FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS May 4, 2021

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v. No. 20-3042

KARL CARTER,

Defendant.

--------------------------------------

FEDERAL PUBLIC DEFENDER,

Movant - Appellee. _________________________________

Appeal from the United States District Court for the District of Kansas (D.C. No. 2:16-CR-20032-JAR-2) _________________________________

William A. Glaser, Attorney, U.S. Department of Justice, Washington, D.C. (Stephen R. McAllister, United States Attorney, District of Kansas; Steven D. Clymer, Special United States Attorney, Brian A. Benczkowski, Assistant Attorney General; Brian C. Babbitt, Acting Assistant Attorney General; and Robert A. Zink, Acting Deputy Assistant Attorney General with him on the briefs), on behalf of the Plaintiff-Appellant.

Melody Brannon, Federal Public Defender (Paige A. Nichols, Assistant Federal Public Defender with her on the briefs), Kansas Federal Public Defender, Topeka, Kansas, on behalf of the Movant-Appellee. _______________________

Before TYMKOVICH, BALDOCK, and BACHARACH, Circuit Judges. _________________________________ BACHARACH, Circuit Judge. _________________________________

This appeal grew out of United States v. Black, et al., which involved

allegations of drug crimes committed at a detention facility. In the course

of this prosecution, the United States Attorney’s Office in Kansas (USAO)

obtained video and phone call recordings from the detention facility. Some

of the recordings involved attorney-client communications between

detainees and their attorneys.

After learning that the USAO had these recordings, the Federal

Public Defender (FPD) intervened for the defendants in Black, who had

been housed at the detention facility. After intervening, the FPD moved for

return of the recordings containing attorney-client communications,

invoking Rule 41(g) of the Federal Rules of Criminal Procedure. This

motion spurred the district court to order an investigation into the USAO

and its possession of the recordings.

When the investigation ended, the district court

 dismissed the indictment against the last remaining defendant in Black (Mr. Karl Carter) and

 ordered the USAO to provide the FPD with all of the recordings of attorney-client communications in the USAO’s possession.

In the course of these rulings, however, the district court made statements

adverse to the USAO and found contempt based partly on a failure to

preserve evidence. 2 The investigation led over a hundred prisoners to file post-conviction

motions, challenging their convictions or sentences based on alleged Sixth

Amendment violations stemming from intrusions into attorney-client

conversations.

The USAO doesn’t question the dismissal of Mr. Carter’s indictment

or the order to furnish the FPD with the recordings. Instead, the USAO

argues that the investigation was unlawful, the district court made

erroneous statements and findings about possible violations of the Sixth

Amendment, the district court clearly erred in its contempt findings, and

the district judge erred by stating that she would reassign herself to the

post-conviction cases.

We dismiss the appeal for lack of jurisdiction and prudential

ripeness.

I. The district court made adverse statements and findings that could potentially be applied in the 100+ post-conviction cases.

The district court appointed a Special Master, who conducted the

investigation in three phases. In Phase I, he investigated whether

recordings of attorney-client communications could be separated from

other recordings. Having found separation feasible, the Special Master set

out in Phase II to identify the recordings that had captured attorney-client

communications. The probe intensified in Phase III as the Special Master

3 addressed the USAO’s role in obtaining and possibly using recordings of

attorney-client conversations.

As Phase III continued, the USAO sought a writ of mandamus, urging

us to halt the investigation as unlawful. Petition for a Writ of Mandamus,

In re United States, No. 18-3007 (10th Cir. Jan. 16, 2018). We narrowed

the scope of the investigation to the parties prosecuted in Black and “other

parties . . . who [had] filed Rule 41(g) motions in that proceeding,” but

otherwise allowed Phase III to continue. Order, In re United States,

No. 18-3007 (10th Cir. Feb. 26, 2018). The investigation culminated in an

order, where the district judge commented on possible violations of the

Sixth Amendment, found the USAO in contempt, and stated that she would

reassign herself to the related post-conviction cases. Joint App’x vol. 5,

at 1153–54, 1157.

These comments reflected three general statements about possible

violations of the Sixth Amendment:

1. The USAO had engaged in a “pattern of misconduct” by possessing, retaining, and possibly using recordings of attorney-client communications. Id. at 1155; see also id. at 1150.

2. Many detainees had not waived the attorney-client privilege. Id. at 1139.

3. Intrusion into privileged communications could justify a remedy without a showing of prejudice. Id. at 1124.

The district court also cited the USAO for contempt for

4  intentionally violating a “duty to preserve evidence surrounding [its] practice of requesting and obtaining audio and video recordings” of attorney-client communications,

 violating clawback orders, and

 violating an order to cooperate with the Special Master, including failing to cooperate with his production requests.

Id. at 1102–06, 1108–09, 1111–13. Despite these findings, the district

court did not impose any sanctions.

The government urges vacatur of the order in Black based on the

potential effect on the 100+ post-conviction cases.

II. The district court’s adverse statements and contempt findings don’t trigger jurisdiction or create a prudentially ripe dispute.

The USAO partially prevailed in district court by avoiding sanctions,

and the FPD partially prevailed by obtaining an order requiring return of

the recordings and dismissal of Mr. Carter’s indictment. But the USAO did

not object to these rulings or appeal them. The USAO instead asks us only

to vacate the district court’s adverse statements and contempt findings on

the ground that they could bolster the 100+ post-conviction claims.

A. The USAO has not shown a live case or controversy.

As the appellant, the USAO must “establish[] our appellate

jurisdiction.” United States v. Solco I, LLC, 962 F.3d 1244, 1249 (10th Cir.

2020) (quoting Estate of Ceballos v. Husk, 919 F.3d 1204, 1224 (10th Cir.

2019)). Appellate jurisdiction generally exists only if the appellant was

“aggrieved” by the district court’s judgment or order. Jarvis v. 5 Nobel/Sysco Food Servs. Co., 985 F.2d 1419, 1425 (10th Cir. 1993)

(quoting Deposit Guar. Nat. Bank, Jackson, Miss. v. Roper, 445 U.S. 326,

334 (1980)).

Prevailing parties are usually not considered “aggrieved.” But

sometimes a prevailing party can appeal “from an adverse ruling collateral

to the judgment on the merits . . . so long as that party retains a stake in

the appeal satisfying the requirements of Art[icle] III.” Id. (quoting Roper,

445 U.S. at 333–34). A stake can arise from collateral rulings when three

elements exist: (1) the prevailing party has suffered an “injury in fact,”

(2) the collateral ruling caused the injury, and (3) the injury is redressable.

Camreta v. Greene, 563 U.S. 692, 701 (2011).

The injury in fact must be “actual or imminent, not ‘conjectural’ or

‘hypothetical.’” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)

(quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).

The USAO urges a stake in this appeal through injury from the

district court’s statements and findings by causing (1) issue preclusion and

(2) adverse effects in the post-conviction cases. We disagree.

1. Appellate relief would not affect the future application of issue preclusion.

If a successful appeal would affect “the future application of issue

preclusion, . . . the personal stake requirement of Article III [would be]

met.” Jarvis v. Nobel/Sysco Food Servs. Co., 985 F.2d 1419, 1425 (10th

6 Cir. 1993) (citing Roper, 445 U.S. at 335–36, & Elec. Fittings Corp. v.

Thomas & Betts Co., 307 U.S. 241 (1939)). 1 The USAO thus urges an

injury in fact based on the possibility that the district court’s statements

and findings could affect the 100+ post-conviction cases.

Issue preclusion would not apply against the USAO. See United

States v. Mendoza, 464 U.S. 154, 162 (1984) (“nonmutual offensive

collateral estoppel simply does not apply against the government in such a

way as to preclude relitigation of issues”). The USAO nonetheless argues

that the district court said that it intended to incorporate the statements and

contempt findings in the post-conviction rulings. For example, the district

court stated:

[T]he Court can narrow the inquiries required in each related § 2255 case because these petitioners all seek similar relief for similar types of intrusions . . . . These issues include, inter alia: (1) the elements required to prove a per se violation of the Sixth Amendment under Tenth Circuit law; (2) whether soundless video recordings constitute protected attorney-client communications; (3) whether the “preamble language” that played [before] . . . telephone calls constituted a waiver of the attorney-client privilege; and (4) whether the government had a legitimate law enforcement purpose when it procured the recordings at issue in this case . . . . Likewise, the USAO’s delay and obfuscation in the Special Master’s investigation will weigh in fashioning an appropriate remedy into the § 2255 cases.

1 As the USAO points out, Jarvis also concluded that an appellant had standing because “avoiding a state court suit would substantially reduce [its] future litigation costs.” Jarvis, 985 F.2d at 1425. But the USAO has not argued that appellate relief would reduce its future litigation costs. 7 Joint App’x vol. 5, at 976–77.

But the district court isn’t bound by its statements of intent. See

Camreta, 563 U.S. at 709 n.7 (stating that a district judge’s determinations

do not bind even herself). And to the extent that the district court does rely

on the statements and findings in the post-conviction rulings, the USAO

can appeal those rulings.

Statements about potential violations of the Sixth Amendment. The

district court’s statements about potential Sixth Amendment violations are

neither binding in the post-conviction cases nor final determinations. The

district court did not conclude that the USAO had violated the Sixth

Amendment rights of any individual. In fact, the district court repeatedly

cautioned that it was not making a final determination on a possible

violation of the Sixth Amendment:

 “Because both the attorney-client privilege and the Sixth Amendment are personal to the defendant, any generalized application of the limited record before the Court [in Black] to establish blanket Sixth Amendment violations would be both inappropriate and premature.” Joint App’x vol. 5, at 1133.

 “These rulings are not conclusions of law on the merits of petitioners’ individual claims.” Id.

 “[P]articularized findings must be made with respect to each claimant asserting the attorney-client privilege, which requires review of the recordings and a minimal threshold showing by the § 2255 litigants on the applicability of the privilege to their individual case.” Id. at 1134.

8  “[T]he ultimate conclusion about whether a particular detainee waived the attorney-client privilege must be decided on a case- by-case basis . . . .” Id. at 1139.

 “[T]he government may be able to demonstrate facts in individual cases that a detainee knowingly and intelligently waived the right to confidential attorney-client communications . . . .” Id. at 1145.

 “[D]etermining whether the USAO became ‘privy to’ particular recordings is not possible on this record. Ultimately, in the context of individual § 2255 actions, the Court will consider the USAO’s explanation or assessment of the circumstances surrounding its access to and review of the particular recordings.” Id. at 1147.

 “[The Court] withholds ruling on whether there was any other legitimate law-enforcement purpose [justifying the USAO’s possession of attorney-client calls] with respect to particular litigants.” Id. at 1148–49.

 “[T]he Court does not make particularized findings of Sixth Amendment violations on this record . . . .” Id. at 1155.

 “Over 100 § 2255 litigants continue to serve their sentence . . . . [T]he Court cannot make a broad Sixth Amendment violation determination nor grant the sweeping remedy the FPD seeks on this record [for all those litigants] . . . .” Id. at 1156.

These cautionary comments were consistent with the remainder of the

order in Black, for the district court never concluded that anyone had

suffered a violation of the Sixth Amendment. To the contrary, the court

stressed that it would decide in the post-conviction cases whether

particular inmates had suffered a violation of the Sixth Amendment.

In the post-conviction cases themselves, the district court has

reiterated the importance of individually determining any possible Sixth

9 Amendment violations. Two examples reflect the importance of

individualized determinations:

1. The district court recently stated: “Although many common issues overlap in the individual Sixth Amendment claims, the Court stressed [in Black] that particularized findings must be made with respect to each § 2255 claimant.” In re CCA Recordings 2255 Litig. v. United States, 19-cv-2491-JAR-JPO, 2021 WL 150989, at *1 (D. Kan. Jan. 18, 2021) (Robinson, C.J.), ECF No. 730, clarified on recons. (D. Kan. Mar. 3, 2021), ECF No. 784.

2. The district court has also observed that many of the post- conviction cases will turn on individualized considerations: “The Court will soon issue orders in individual cases either dismissing claims . . . or granting an evidentiary hearing on claims, all consistent with the particularized approach the parties must take going forward. While numerous global procedural and discovery issues have been addressed by the Court over the last several years, ultimately ‘habeas relief sought must be considered on an individual basis.’” Id. at *26 (quoting Wang v. Reno, 862 F. Supp. 801, 811 (E.D.N.Y. 1994)). 2

The results in the post-conviction cases reflect the non-binding

nature of the district court’s statements in Black. Since the making of those

statements, the district court has stated its intent to dismiss

 12 of the post-conviction cases in their entirety,

 22 of the post-conviction cases challenging convictions,

2 In the post-conviction cases, the court gave two reasons for revisiting its analysis of the Sixth Amendment. First, “the parties’ arguments ha[d] evolved” after the court ruled in Black. Second, the government had argued that the statements in Black did not control in the post-conviction cases. In re CCA Recordings 2255 Litig. v. United States, 19-cv-2491-JAR-JPO, 2021 WL 150989, at *3–*9 (D. Kan. Jan. 18, 2021) (Robinson, C.J.), ECF No. 731.

10  29 of the post-conviction cases challenging sentences, and

 4 of the post-conviction cases to the extent that they are based on video recordings.

In re CCA Recordings 2255 Litig., No. 19-cv-2491-JAR-JPO (D. Kan.

Mar. 10, 2021), ECF No. 793. And the court has actually dismissed 33 of

the post-conviction cases. (Eighteen of the dismissals were voluntary;

fifteen were involuntary.) See id., ECF Nos. 46, 157–70, 319, 526, 566

(voluntary dismissals); ECF Nos. 606–07, 627, 801, 807–08, 811, 821–22,

825–27, 874, 884–85 (involuntary dismissals).

Contempt findings. The district court’s findings of contempt are not

binding in any of the post-conviction cases. The USAO argues that the

district court may impose adverse inferences or other sanctions in the post-

conviction cases. But the record contains no evidence of any sanctions

imposed in the post-conviction cases as a result of the contempt findings in

Black.

The USAO has pointed to three recent post-conviction rulings that

rely on a finding of contempt:

1. a discovery order (February 2020),

2. an order as to an adverse inference (October 2020), and

3. an order rejecting a defense of procedural default (January 2021).

11 First, the USAO points out that the district court authorized

discovery in a post-conviction case, relying on the court’s findings in

Black. In re CCA Recordings 2255 Litig. v. United States, 19-cv-2491-

JAR-JPO, slip op. at 2–5 (D. Kan. Feb. 24, 2020) (Robinson, C.J), ECF

No. 79. But the USAO can appeal this decision in the post-conviction case.

Second, the USAO points out that in a recent post-conviction order,

the district court said that it “intend[ed] to take as established petitioners’

claim that before each petitioner entered a plea, was convicted, or was

sentenced, each member of the prosecution team became ‘privy to’ each

recording” of allegedly privileged communications. In re CCA Recordings

2255 Litig., 19-cv-2491-JAR-JPO, slip op. at 13 (D. Kan. Oct. 15, 2020),

ECF No. 587. But the court relied on a refusal to comply with an order in a

post-conviction case, not in Black. Id. at 1; see also Oral Argument

at 21:20–21:45 (the USAO’s acknowledgment that this statement was not

based on the order in Black).

Finally, the USAO points out that in a post-conviction case, the

district court recently rejected the USAO’s defense of procedural default,

concluding that the petitioner could avoid a procedural default because the

“factual basis for Petitioner’s Sixth Amendment claim [had not been]

reasonably available to him at the time of his direct appeal, due in large

part to the government’s strategy of delay, denial, and deflection in the

Black case and its handling of attorney-client recordings.” In re CCA

12 Recordings 2255 Litig., 19-cv-2491-JAR-JPO, slip. op. at 15–16 & n.69

(D. Kan. Jan 18, 2021) (Robinson C.J.), ECF No. 732 (citing the order in

Black). But the USAO can appeal this decision through the post-conviction

case.

Intent to reassign the post-conviction cases. The district judge also

said that she intended to reassign herself to the post-conviction cases. But

this statement of intent in Black is not binding in the post-conviction

cases; and the USAO can challenge the reassignments in the post-

conviction cases, where the reassignments take place—not in Black, where

the district judge simply said what she intended to do in the post-

conviction cases.

* * *

None of the district court’s statements or findings are binding in the

post-conviction cases. See Camreta v. Greene, 563 U.S. 692, 709 n.7

(2011). So the USAO has not shown that this appeal would affect issue

preclusion under Jarvis v. Nobel/Sysco Food Servs. Co., 985 F.2d 1419

(10th Cir. 1993).

2. The challenged statements and contempt findings are neither part of the judgment nor necessary for it.

The USAO also argues that a stake in the appeal can arise if the

ruling would adversely affect future litigation. For this argument, the

13 USAO relies on Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S.

241 (1939).

Electrical Fittings involved a suit for patent infringement. Id. at 241.

The district court dismissed the suit for failure to prove infringement.

Despite the dismissal, the district court concluded that the patent was

valid. Id. at 242.

The defendants appealed the ruling on the validity of the patent; and

the appellate court dismissed, reasoning that the judgment “would not

bind” subsequent courts. Id. The Supreme Court reversed. The Court did

not address the validity of the patent, observing instead that “the

adjudication” of the patent’s validity would stand as one of the issues

being decided. Id. On this basis, the Court concluded that the appellate

court had jurisdiction “not for the purpose of passing on the merits, but to

direct the reformation of the decree.” Id.; see Deposit Guar. Nat. Bank,

Jackson, Miss. v. Roper, 445 U.S. 326, 335–36 n.7 (1980) (interpreting

Electrical Fittings to allow prevailing parties to appeal because “there had

been an adverse decision on a litigated issue, they continued to assert an

interest in the outcome of that issue, and for policy reasons this Court

considered the procedural question of sufficient importance to allow an

appeal”). Despite ordering reformation of the decree, the Supreme Court

observed that a prevailing party cannot appeal to obtain review of

14 “findings he deems erroneous which are not necessary” for the judgment.

Elec. Fittings, 307 U.S. at 242.

Here, the USAO is seeking appellate review of statements and

contempt findings that are neither part of the Black judgment nor necessary

for it. An example is the finding on contempt. This finding was not

mentioned in the judgment or necessary for the disposition, which included

no sanctions. The same is true of the district judge’s statements about

potential violations of the Sixth Amendment and intent to reassign herself

to the post-conviction cases. The Black judgment did not contain a final

determination as to a violation of the Sixth Amendment or reassignment of

the post-conviction cases.

The district court’s findings and statements were not part of or

necessary to the Black judgment. So Electrical Fittings does not support

the USAO’s standing to appeal these findings or statements. See United

States v. Fletcher ex rel. Fletcher, 805 F.3d 596, 605 (5th Cir. 2015)

(concluding that Electrical Fittings did not support an appeal of rulings

not appearing on the face of the judgment); United States v. Good

Samaritan Church, 29 F.3d 487, 489 (9th Cir. 1994) (same); In re DES

Litig., 7 F.3d 20, 25 (2d Cir. 1993) (same).

15 3. We lack jurisdiction because the USAO has not shown a live case or controversy.

As a prevailing party, the USAO had to show a stake constituting a

live case or controversy. Jarvis v. Nobel/Sysco Food Servs. Co., 985 F.2d

1419, 1425 (10th Cir. 1993). The USAO argued that it had a stake in the

appeal because the district court’s statements and contempt findings

triggered issue preclusion and affected future rulings in the post-conviction

cases.

We reject both arguments because the district court’s statements and

findings are not (1) binding in the post-conviction cases or (2) part of or

necessary to the Black judgment. So the feared injury—application of these

statements and contempt findings in the post-conviction cases—is not

actual or imminent. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560

(1992). Given the absence of an injury in fact, we lack jurisdiction over the

appeal.

B. The district court’s adverse statements and contempt findings don’t create a prudentially ripe dispute.

Even if we had jurisdiction, the appeal would remain prudentially

unripe. See United States v. Cabral, 926 F.3d 687, 693 (10th Cir. 2019)

(stating that even if an appeal presents a case or controversy, a court may

16 decline to reach the merits on the ground that the dispute lacks prudential

ripeness).

“The purpose of the ripeness doctrine is to prevent the premature

adjudication of abstract claims.” Texas Brine Co. and Occidental Chem.

Corp., 879 F.3d 1224, 1229 (10th Cir. 2018). To determine whether an

appeal is prudentially ripe, we balance “the fitness of the issue for judicial

review” against “the hardship to the parties from withholding review.” Id.

(quoting United States v. Bennett, 823 F.3d 1316, 1326 (10th Cir. 2016)).

To determine fitness for review, we consider “whether determination

of the merits turns upon strictly legal issues or requires facts that may not

yet be sufficiently developed.” Id. (emphasis omitted) (quoting Bennett,

823 F.3d at 1326). The USAO is challenging statements about the Sixth

Amendment, but these statements lack any legal effect unless the district

court applies them in the post-conviction cases. And the district court has

repeatedly stated that each post-conviction case will be decided based on

its individual facts. The same is true with the district court’s contempt

findings. The district court did not impose any sanctions in Black, and any

future sanction would require development of a factual record as to the

proceedings in a particular prisoner’s case and the appropriate remedy.

To determine hardship to the parties, we consider “whether

withholding review [would] place the parties in a direct and immediate

dilemma.” Id. at 1230 (internal quotation marks omitted). No such dilemma

17 exists here. The parties can freely litigate all of the disputed issues in the

The Court addressed a similar combination of circumstances in Texas

Brine Co. and Occidental Chemical Corp., 879 F.3d 1224 (10th Cir. 2018).

There Texas Brine appealed a production order, arguing that the requested

materials were privileged. 879 F.3d at 1228. But Texas Brine did not

produce a privilege log. Id. at 1229. Instead of grounding the privilege on

a particular document, Texas Brine urged a “blanket privilege.” Id. at

1230.

We concluded that both factors weighed against judicial review. On

the first factor, we stated that “[w]ithout the benefit of a privilege log or

inspection of documents, [the Court was] left with an insufficient factual

record.” Id. at 1230. On the second factor, we concluded that Texas Brine’s

concern was indirect and speculative: Once Texas Brine made a privilege

log, the possibility of a favorable ruling remained. Id. at 1231.

The same is true here. The USAO requests “blanket” protection from

us to prevent the use of certain statements and findings when the district

court rules in the post-conviction cases. Consideration of this request is

premature until the court rules in those cases. The USAO may ultimately

prevail in those cases; and if the USAO doesn’t prevail, it can appeal the

post-conviction rulings with a more fully developed record.

18 We review “judgments, not statements.” California v. Rooney, 483

U.S. 307, 311 (1987) (quoting Black v. Cutter Labs., 351 U.S. 292, 297

(1956)). The USAO does not challenge the final judgment or rulings in

Black. The USAO instead challenges statements and findings made along

the way to the judgment. “Our resources are not well spent superintending

each word a lower court utters en route to a final judgment in the

[appellant’s] favor.” Camreta v. Greene, 563 U.S. 692, 704 (2011).

The USAO fears that the district court will use these statements and

findings when ruling on the post-conviction cases. That possibility does

not create appellate jurisdiction or a prudentially ripe dispute:

There are . . . too many “ifs” . . . to make our review appropriate at this stage. Even if everything the [USAO] fears comes to bear, the [USAO] will still have the opportunity to appeal such an order, and this Court will have the chance to review it, with the knowledge that we are reviewing a [final] judgment on the issue . . . .

Rooney, 483 U.S. at 312–13.

III. The USAO’s challenges to the lawfulness of the Phase III investigation are moot.

Though the post-conviction cases are ongoing, Phase III is over. Yet

the USAO continues to challenge the district court’s authorization of

Phase III. 3

3 In its appeal briefs, the USAO argues that Phase III was unlawful because it

 lacked a basis under Fed. R. Crim. P. 41(g), 19 Even if jurisdiction otherwise existed, these challenges would be

moot. Under Article III, a continuing “case-or-controversy” exists only if

the parties retain “a personal stake in the outcome” throughout the

litigation, including appellate review. United States v. Fisher, 805 F.3d

982, 989 (10th Cir. 2015). The matter otherwise becomes moot “when it is

impossible to grant any effectual relief.” Id. (quoting Chihuahuan

Grasslands All. v. Kempthorne, 545 F.3d 884, 891 (10th Cir. 2008)).

Even if Phase III were unlawful, we could not grant effectual relief

because Phase III is over. In that phase, the USAO produced some evidence

and refused to produce other evidence; witnesses testified and were

questioned. Nothing we say will change what took place in Phase III.

Given our inability to affect the scope of an investigation that has finished,

the USAO can no longer challenge the lawfulness of Phase III. See Binder,

 exceeded the district court’s inherent authority,

 lacked a factual basis, and

 violated the separation of powers.

At oral argument, members of the panel expressed concern that Phase III had exceeded the scope of this Court’s mandamus order. Oral Argument at 17:50–18:08, 46:40–49:08, 54:21–57:07; see also Order, In re United States, No. 18-3007 (10th Cir. Feb. 26, 2018). But counsel for the USAO stated that it was not challenging Phase III based on the scope of the mandamus order. Oral Argument at 1:03:03–1:03:44. We thus do not address whether Phase III deviated from our restrictions.

20 Robinson & Co. v. SEC, 748 F.2d 1415, 1418–19 (10th Cir. 1984)

(concluding that a challenge to an investigatory order had become moot

once the investigatory order terminated). We thus lack jurisdiction to

review the USAO’s challenges to the lawfulness of Phase III.

IV. Conclusion

We dismiss this appeal for lack of jurisdiction and prudential

ripeness. 4

4 Because we lack jurisdiction and the appeal is prudentially unripe, we need not address the Federal Public Defender’s argument that the district court hasn’t issued a final order. See 28 U.S.C. § 1291. 21