United States v. Stephen Yagman

FILED
NOT FOR PUBLICATION FEB 07 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-56598

Plaintiff - Appellee, D.C. Nos. 2:10-cv-09033-SVW
2:06-cr-00227-SVW-1
v.

STEPHEN YAGMAN, MEMORANDUM *

Defendant - Appellant.

Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding

Argued and Submitted January 10, 2013
Pasadena, California

Before: O’SCANNLAIN and W. FLETCHER, Circuit Judges, and
HELLERSTEIN, District Judge.**

Petitioner Stephen Yagman appeals three district court orders relating to

discovery of attorney-client-privileged materials during litigation of his ineffective

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
assistance of counsel claim. We dismiss his interlocutory appeal for lack of

jurisdiction and deny his alternative motion for a writ of mandamus.

Yagman argues that this court has jurisdiction to entertain his interlocutory

appeal under Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003) (en banc) and

Perlman v. United States, 247 U.S. 7 (1918). We disagree. Whether or not our

circuit’s decision in Bittaker remains good law after the Supreme Court’s decision

in Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599 (2009), its jurisdictional

rule is not applicable in this case. In Bittaker, the Government appealed in order to

gain the right to use the petitioner’s privileged information at a retrial if the

petitioner’s writ of habeas corpus were to be granted. See Bittaker, 331 F.3d at

717. Here, in contrast, the Government accepts the protective order preventing the

use of privileged information in any subsequent retrial, and Yagman appeals to

block a discovery order in his own case. Mohawk Industries clearly holds that

such an order is not immediately appealable. Mohawk Indus., Inc., 130 S. Ct. at

609.

Likewise, the jurisdictional rule set forth in Perlman and reaffirmed in

United States v. Krane, 625 F.3d 568 (9th Cir. 2010) does not confer jurisdiction

over this appeal, both because Yagman, the privilege-holder, is a party to the action

2
and because the privileged documents have already been disclosed to the

Government. See id. at 573. Thus, the Supreme Court’s decision in Mohawk

Industries controls, and we lack jurisdiction to hear Yagman’s appeal from the

district court’s discovery orders even though they may implicate his attorney-client

privilege. Mohawk Indus., Inc., 558 U.S. at 603.

In the alternative, Yagman urges us to treat his appeal as a petition for

mandamus. We deny this motion. None of the five Bauman factors weighs in

favor of issuing a writ of mandamus in this case. See Bauman v. U.S. Dist. Court,

557 F.2d 650, 654–55 (9th Cir. 1977).

DISMISSED.