United States v. Punn

737 F.3d 1, 2013 WL 6332549
Court of Appeals for the Second Circuit·Decided December 6, 2013·No. Docket No. 13-2780-cr·Published·Cited by 21 cases

Opinion

GERARD E. LYNCH, Circuit Judge:

This appeal requires us to decide whether an order denying a motion to quash grand jury subpoenas directed at third parties on the ground that the subpoenas were issued for the sole or dominant purpose of preparing for the movant’s trial on a pending indictment is an immediately appealable order under 28 U.S.C. § 1291. Although this Court has addressed this issue on a number of occasions, our case law does not reflect a uniform approach to addressing that question, or a consistent answer. We conclude that such orders are not immediately appealable.

BACKGROUND

Appellant Rakesh Punn is a licensed medical doctor whose practice included pediatric care. He is also the father of two adult children, Sippy and Jesse Punn. In July 2010, Sippy and Jesse Punn provided the Nassau District Attorney’s Office with information suggesting their father’s possible commission of crimes including unlawful surveillance, child pornography, and health care fraud. Both gave sworn statements to local law enforcement officers, and Sippy Punn testified twice before Nassau County grand juries. Neither of the children spoke to federal investigators or testified before a federal grand jury at that time.

On January 4, 2012, a grand jury in the Eastern District of New York indicted Punn on seven counts of sexual exploitation of children, in violation of 18 U.S.C. § 2251(a) & (e), and twenty-nine counts of health care fraud, in violation of 18 U.S.C. § 1347. The indictment alleges that Punn created sexually explicit images and videos of patients and submitted fraudulent insurance claims for medical procedures and office1 consultations which were conducted not for medically accepted purposes, but solely for the purpose of sexual gratification. The case was assigned to Judge Joanna Seybert and is currently in its pretrial phase.

On March 4, 2013, Punn filed pretrial motions seeking,. among other things, to suppress evidence derived from the search of Punn’s home. On May 6, two days before the original deadline for the government’s response to Punn’s pretrial motions, Jesse and Sippy Punn were served with subpoenas to testify on May 9 before a federal grand jury investigating their father. On May 9, Punn moved in his case to quash those subpoenas, on the ground that they were issued for the improper purpose of assisting the government in preparing for Punn’s trial on the pending indictment, including the government’s response to Punn’s pretrial motions.1 On [4] July 16, after full briefing, the district court denied Punn’s motion to quash, holding that Punn lacked standing to raise constitutional issues of privilege on behalf of his adult children, and that his motion on. his own behalf failed on the merits because he had failed to offer evidence overcoming the presumption that grand jury subpoenas are issued for proper purposes. Punn moved for reconsideration, which was also denied. This appeal followed.

DISCUSSION

• Punn asks this Court to hold that he has standing to challenge the grand jury subpoenas served on his adult children, and that the subpoenas should have been quashed because they were issued for the improper purpose of allowing the government to prepare its case for trial on an already pending indictment, by gathering evidence and interviewing potential defense witnesses. Prior to addressing either of these issues, however, yre must decide whether we have jurisdiction to hear an appeal from an order denying a motion to quash grand jury subpoenas directed at third parties on the ground that the subpoenas were issued for the improper purpose of trial preparation. Because we conclude that such orders are not immediately appealable, and thus that we lack jurisdiction to hear Punn’s appeal, we dismiss the appeal without reaching the merits of Punn’s contentions.2

I. Appellate Jurisdiction

In general, a party “is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994). Consistent with this background principle, 28 U.S.C. § 1291 permits the. Courts of Appeals to hear “appeals from all final decisions of the district courts of the United States ... except where a direct review may be had in the Supreme Court.” 28 U.S.C. § 1291. The typical appeal under § 1291 is an appeal from an order that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 497, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989) (internal quotation marks omitted). Less commonly, § 1291 also permits appeals from orders that are not final in the traditional sense. Specifically, the collateral order doctrine, a practical construction of § 1291, permits an immediate appeal from a “narrow class of decisions that do not terminate the litigation, but must, in the interest of achieving a healthy legal sys[5] tem, nonetheless be treated as final.” Digital Equip. Corp., 511 U.S. at 867, 114 S.Ct. 1992 (internal quotation marks and citation omitted).

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United States v. Punn, 737 F.3d 1, 2013 WL 6332549 (2d Cir. 2013).

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