In Re: Sealed Case

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~nii£o ~tai£s Qlourt of J\pp£als
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 25, 2012 Decided March 5, 2013
Reissued May 16, 2013

No. 12-5147

IN RE: SEALED CASE

Consolidated with 12-5148

Appeal from the United States District Court
for the District of Columbia
(No. 1:12-mc-00196)

Before: GARLAND, Chief Judge, GRIFFITH and
KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Concurring opinion filed by Circuit Judge KAvANAUGH.

ts executed search
as part of a grand
jury r. . .,T.¥'.£'T court that some of the

1
NOTE: Portions of this opinion contain Sealed Material,
which has been redacted.
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documents seized were beyond the scope of the warrants and
others were protected by the attorney-client privilege,
appellant moved for their return pursuant to Federal Rule of
Criminal Procedure 41 (g). The district court denied. motion,
and this appeal ensued. We dismiss this interlocutory appeal
for want of jurisdiction.

I

The agents seized more than sixty boxes of physical
property, as well as computers, hard drives, cell phones, and
other devices that contained electronic records. The boxes and
the electronic devices contained more than twenty-three
million pages of documents. Within ~
government had copied and returned t o -
the contents of most of the electronic devices.~
unclear whether several cell phones seized from -
- h a v e yet been returned. Tr. 54-55.) The government
also made copies or originals of the documents available. Each
party proposed protocols to identify documents the
government could review without exceeding the scope of the
search warrants or breaching the attorney-c~
When they were unable to reach an a g r e e m e n t , -
- moved under Federal Rule of Criminal Procedure
41 (g) for the return o~ documents the government lacked
authority to review. - did not assert that. had been
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denied access to documents essential f o r . affairs. Instead,
urged the adoption of protocols •
propo on grounds that the government retained
documents protected from review by the Fourth Amendment
and the attorney-client privilege.

On May 3, 2012, the district court denied. motions
and on 11 sou t review from this court.

January 14, 2013,
government notified us that they had re agreement on
how to identify privileged material. Because we may act only
to resolve "actual, ongoing controversies," Honig v. Doe, 484
U.S. 305, 317 (1988), we dismiss as moot the portion of
- appeal that challenged the district court's refusal
to order the parties to implement the protocols had
proposed to identify privileged documents~
appeal is now limited to • claim that the court
improper!"- declined to order the parties to implement the
protocols. proposed to identify documents beyond the scope
of the search warrants.

II

Before we can take up the merits o f - claim, we
must determine whether we have jurisdiction to hear the appeal
of the denial o f . Rule 41(g) motions. Under 28 U.S.C.
§ 1291, Congress has limited our jurisdiction to appeals of
final decisions of the district court- a policy that requires
most litigants to await the termination of their cases before
seeking appellate review. This limit aims to prevent
"leaden-footed" judicial administration and avoid "the
obstruction to just claims that would come from permitting the
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harassment and cost of a succession of separate appeals from
the various rulings to which a litigation may give rise."
Cobbledick v. United States, 309 U.S. 323, 325 (1940). This
concern with efficiency is most pronounced in criminal
proceedings. Id. at 324-25. "[T]he delays and disruptions
attendant upon intermediate appeal are especially inimical to
the effective and fair administration of the criminal law."
DiBella v. United States, 369 U.S. 121, 126 (1962). Allowing
review of the decisions district courts make during the course
of ongoing criminal prosecutions may, for example, "make of
appeal an instrument of harassment, jeopardizing by delay the
availability of ... essential evidence." Id. at 129. Weighed
against these costs, the value of an immediate appeal is
diminished because there is likely to be "an adequate remedy at
law by motion in the [forthcoming] criminal trial." Id. at 128.

Rule 41 (g) allows the owner of propert1' the government
has seized in a search to seek its return. Sometimes, the
government has seized the property for the purposes of a
criminal investigation or prosecution that is ongoing when the
motion is filed. Even if assigned its own docket number in the
district court, 3 that motion is likely a "component element[] in
2
Prior to 1989, only an unlawful search or seizure could trigger
the rule, which provided for automatic suppression of any property
returned. See In re Warrant Dated Dec. 14, 1990, 961 F.2d 1241,
1243 n.4 (6th Cir. 1992) (describing the 1989 amendment). After the
1989 amendment to Rule 41, that restriction is See FED. R.
CRIM. P. 41(g). Accordingly, not
contested the lawfulness of the government's
3
Because the grand jury has not yet returned an indictment
ainst - , no criminal number exists for II
case. Instead,
l motions were assigned miscellaneous numbers.
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a unified [criminal case]," Cobbledick, 309 U.S. at 325, rather
than an "independent proceeding begetting finality ... for
purposes of appealability." DiBella, 369 U.S. at 131. We
threaten to disrupt "the conduct of a criminal trial" when we
permit appeals from these motions. Id. at 129. For that reason,
an appellant seeking review of the denial of a Rule 41 (g)
motion must show that the decision is independent of any
ongoing criminal prosecution, such that its appeal will not lead
to piecemeal review of a unified criminal case or impede the
progress of the prosecution.

In DiBella v. United States, the Supreme Court announced
a test to determine whether a Rule 41 (g) proceeding is
independent of a criminal prosecution. 369 U.S. at 131-32.
DiBella consolidated appeals of conflicting decisions from the
Second and Fifth Circuits. In the appeal from the Second
Circuit, Mario DiBella had been arrested pursuant to a warrant
issued upon a complaint charging unlawful sales of narcotics.
ld. at 122. After his arrest but before his indictment, DiBella
moved under the predecessor to Rule 41 (g) to suppress
evidence he claimed was unlawfully seized at the time of his
arrest. !d. Shortly after DiBella filed his motion, the grand jury
returned an indictment, and the district court denied his motion
without prejudice to a motion to suppress at trial. Id. The
Second Circuit permitted his appeal because the motion was
filed before the indictment was returned. Id. at 122-23. In the
appeal from the Fifth Circuit, Daniel Koenig was arrested and
his property was seized in the Southern District of Florida on a
complaint charging a bank robbery in the Southern District of
Ohio. Jd. at 123. Four days after Koenig filed a motion to
suppress and for return of property in Florida, a federal grand
jury in Ohio returned an indictment against him. Id. The
District Court for the Southern District of Florida granted
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suppression of the evidence but denied Koenig its return. !d.
The government appealed, and the Fifth Circuit dismissed the
appeal on the ground that the order was interlocutory and
therefore not appealable. 4 !d.

The Supreme Court held that a court of appeals could
entertain the denial of a motion for the return of seized property
"[ o]nly if the motion is solely for return of property and is in no
way tied to a criminal prosecution in esse 5 against the
movant." !d. at 131-32. The Court concluded that the movant
failed both prongs in each case. The movant's goal was not
"solely ... return of property," but the suppression of evidence
at an upcoming trial. !d. Far from being independent of the
trial, each motion was an integral part of a trial strategy. !d. at
127 (holding that a motion to suppress "presents an issue that is
involved in and will be part of a criminal prosecution in
process at the time the order is issued"). The Court reasoned
that it could not treat a motion as "independent" when its
"disposition ... 'will necessarily determine the conduct of the
trial and may vitally affect the result."' !d. (quoting Cogen v.
United States, 278 U.S. 221,223 (1929)). The Court also found
that each motion was "tied to a criminal prosecution in esse"
because both movants had been arrested and indicted at the
time of appeal. DiBella, 369 U.S. at 131-32. When a criminal
prosecution is in esse - or when it is "in being" -the "delays
and disruptions attendant upon intermediate appeal" jeopardize
"the effective and fair administration of the criminal law." !d.
at 126. In short, the orders were not final. They were
4
Today, a statute permits the United States to appeal orders
granting Rule 41 (g) motions. See 18 U.S.C. § 3731.
5
In esse is defined as "[i]n actual existence" or "in being."
BLACK'S LAW DICTIONARY 846 (9th ed. 2009).
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inextricably intertwined with issues that would be more fully
developed at trial, and allowing their appeal would disrupt an
ongoing criminal proceeding.

- Rule 41 (g) motions are not independent.
Instead, they are part of a ~how best to respond to a
grand jury investigation. - aries • motions are
"solely for return of property" because does not seek the
suppression of evidence gathered from the documents.
Appellant's Reply Br. 3-4. In so arguing,- seems to
assume that every Rule 41 (g) motion falls into one of two
categories: motions that seek "solely" return of property, and
those that seek return of property and suppression of evidence.
But at the time the Court decided DiBella, the dichotomy
- imagines did not exist: granting a Rule 41 (g)
motion automatic-It in suppression of the returned
resulted
evidence. 6 Thus, cannot be right that the test for
whether a motion is "solely for return of property" turns on
whether the motion also seeks suppression. The Court's
objective in crafting the first prong was to distinguish some
motions from others: those that are inextricably intertwined
with issues to ~ed at a forthcoming trial from those
that are not. I f - were correct about its meaning, then
the first prong would not have served the Court's desired
culling function because seeking the return of property went
hand-in-glove with seeking its suppression. See In re Warrant
Dated Dec. 14, 1990, 961 F.2d 1241, 1243-44 (6th Cir. 1992)
("[N]o motion ... could ever literally comply with the [first
prong because] any motion for return of property was
automatically treated as a suppression motion as well."

6
Rule 41 has since been amended and does not automatically
result in suppression. See supra note 2.
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(internal quotation marks omitted)). Sensitive to this peril,
courts of appeals have in~reted DiBella to stand for a
broader principle than - acknowledges - one that
requires us to look beyond the mere effect of the motion to
ascertain its true purpose. See, e.g., id. ("[W]e must look
behind the ... motion and determine whether the motion
essentially sought return of seized property or suppression,
delay, or some other such purpose apart from the return of the
property."); Matter of949 Erie Street, Racine, Wis., 824 F.2d
538, 541 (7th Cir. 1987); In re Grand Jury Proceedings, 716
F.2d 493,495 (8th Cir. 1983); Imperial Distribs., Inc. v. United
States, 617 F.2d 892, 895 (1st Cir. 1980); United States v.
Premises Known as 608 Taylor Ave., 584 F.2d 1297, 1300 (3d
Cir. 1978).

The question is more fundamental than whether the
movant seeks only to suppress evidence. The question is
whether a Rule 41 (g) motion is being used for strategic gain at
a future hearing or trial. Our sister circuits have identified
factors probative of purpose. For example, many have
considered the movant's need for the property. As such, when
the movant has already recovered the property from the
government, those courts are reluctant to find that the motion is
"solely" for its return. See, e.g., In re Grand Jury, 635 F .3d
101, 104-05 (3d Cir. 2011); Matter of949 Erie Street, 824 F.2d
at 541; Imperial Distribs., 617 F .2d at 895-96. Courts have also
considered whether granting the motion would have some
effect on the presentation of evidence at a future hearing or
trial. See, e.g., In re Grand Jury, 635 F.3d at 104 (holding that a
Rule 41 (g) motion was actually a motion to suppress because it
"request[ ed] ... any copies of the seized documents and ... an
order directing the government to cease inspecting the
evidence pending a ruling" (emphasis in original)); In re 3021
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6th Ave. North, 237 F.3d 1039, 1041 (9th Cir. 2001); Imperial
Distribs., 617 F .2d at 896.

On both of these counts, - motions are not
"solely for return of property."~ no argument that
I has some need for the seized property. We think it
~hat the government has already made almost all of
- property available t o . , and it has expressed a
willingness to return at least copi~cuments it retains.
It is also telling that the injury - asserts is not the
deprivation of property but the unlawful revelation of •
private information. - preoccupation with
disclosure rather than return underscores that. invocation of
Rule 41 (g) is not about securing • property's return. See
United States v. Ryan, 402 U.S. 530, 533 (1971) (describing
the interest at stake when a motion is "solely for return of
property" as the "right to possession").

To be sure, - motions do not, by their terms,
seek suppression of evidence. Granting them, however, would
have a profound effect on the presentation of evidence at a
future hearing or trial. For example, - motions
include a request that the district court require the government
to waive the ?lain view doctrine with respect to the electronic
documents. If - motions were granted, the
government could not use any electronic evidence outside the
scope of the warrant at trial - even evidence in plain view
during the search of the device on which the evidence was
7
The plain view doctrine permits the seizure of evidence
outside the scope of the warrant discovered during the course of a
lawful search, provided its criminal nature is immediately apparent.
See Horton v. California, 496 U.S. 128, 135-36 (1990).
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stored. That would be a benefit to ~nd it has
nothing to do with the return ofpr~i· motions
are strategic in another way, too. seeks to prevent the
government from revi~ most of the evidence for a
period of time, while - ' and an independent third
party screen the seized material. Tr. 13. By "jeopardizing ...
the availability of other essential evidence," DiBella, 369 U.S.
at 129, the delay could shape the course of the criminal
investigation and the content of the case the government will
present at trial. In these w a y s , - motions for return
of property are designed to achieve more than "solely" the
return of property. Rather, they are an integral part o f .
strategy before the grand jury and at a possible trial.

Because - motions fail the first prong of the
DiBella test, we need not consider wheth~ also "tied
to a criminal prosecution in esse a g a i n s t " -. • Rule
41 (g) motions below were not independent proceedings, and
the district court's order denying those motions is not final.

III

Congress and the courts have fashioned exceptions to the
finality rule, see DiBella, 369 U.S. at 124-26, a n d -
invokes one of them to argue that we have jurisdiction to
review the district court's denial of. Rule 41 (g) motions.

The Perlman doctrine permits appeals from some
decisions that are not final but that allow the disclosure of
property or evidence over which the appellant asserts a right or
privilege. The doctrine originates in the Supreme Court's
decision in Perlman v. United States, 247 U.S. 7 (1918). Louis
Perlman owned several exhibits that his company, Perlman
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Rim Corporation, used during its patent suit against Firestone
Tire & Rubber Company. Id. at 8. At the close of the trial, the
district court ordered all exhibits impounded in the custody of
the clerk, pending an investigation into perjury Perlman may
have committed at trial. Id. at 8-9. The court then ordered the
two companies to show cause why the exhibits should not be
turned over to a federal prosecutor. Id. at 9. Because neither
party objected, the court directed the clerk to grant the federal
prosecutor access to the exhibits. Id. at 9-10. Perlman, who was
not a party to the patent suit and did not receive notice of the
order to show cause, subsequently sought an order restraining
the government from using the exhibits. Id. at 9-11. He argued
that their disclosure to the government had violated his Fourth
and Fifth Amendment rights. Id. at 13. He lost, but appealed
the denial of his petition to the Supreme Court, which heard the
case under its then-obligatory appellate jurisdiction. Id. at 11.
Sometime before his appeal reached the Supreme Court,
Perlman was indicted for perjury. Id. The government opposed
Perlman's appeal, arguing that the district court's decision was
"part of a criminal proceeding," and "not final, but merely
interlocutory, and therefore not reviewable by this court." I d. at
12.

In a brief paragraph, the Supreme Court rejected the
government's argument, calling it "somewhat strange," and
warning that, if adopted, it would render
"Perlman ... powerless to avert the mischief of the order" and
would require him to "accept its incidence and seek a remedy
at some other time and in some other way." ld. at 12-13. In that
language, which Judge Friendly would later describe as
"Delphic," Nat'! Super Spuds, Inc. v. NY. Mercantile Exch.,
591 F.2d 174, 178 (2d Cir. 1 9 7 9 ) , - grounds.
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argument that we have jurisdiction to consider the district
court's denial of. Rule 41(g) motions.

It is not clear to us from the filings whether- still
thinks the Perlman doctrine provides jurisdictio~peal
now that the dispute over the attorney-client p~ moot.
Apart from Perlman itself, all of the cases - cites
concern privileges, rather than Fourth Amendment rights. In
any event, we rest our disposition not on the nature of the rights
or privileges- asserts, but on the conclusion that the
Perlman doctrine cannot be stretched to cover appeals from
denials of Rule 41 (g) motions.- points us to no court
that has relied upon Perlman's "Delphic" language to permit
an appeal from the denial of a Rule 41 (g) motion, and we will
not be the first to do so.

Typically, Perlman permits a privilege-holder to appeal a
disclosure order "directed at a disinterested third
party ... because the third party presumably lacks a sufficient
stake in the proceeding to risk contempt by refusing
compliance." Church of Scientology of Cal. v. United States,
506 U.S. 9, 18 n.l1 (1992) (citing Perlman); see also United
States v. Williams Companies, Inc., 562 F.3d 387, 392 (D.C.
Cir. 2009). 8 Few courts have departed from this formula, as
8
Every other circuit has invoked a similar formulation. See In
re Grand Jury, Nos. 12-1697 & 12-2878, 2012 U.S. App. LEXIS
25318, *20 (3d Cir. Dec. 11, 2012); In re Motor Fuel Temperature
Sales Practices Litig., 641 F.3d 470,485 (lOth Cir. 2011); Wilson v.
O'Brien, 621 F.3d 641, 642-43 (7th Cir. 2010); United States v.
Krane, 625 F.3d 568, 573 (9th Cir. 2010); United States v. Myers,
593 F.3d 338, 345 (4th Cir. 2010); John B. v. Goetz, 531 F.3d 448,
458 n.6 (6th Cir. 2008); In re Air Crash at Belle Harbor, 490 F.3d
99, 106 (2d Cir. 2007); Gill v. Gulfstream Park Racing Ass 'n, 399
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~s to do in order to find jurisdiction over.
~ relies on two cases to press • argument
that the Perlman doctrine is more flexible than the formula
suggests. According t o . , the doctrine permits interlocutory
appeals whenever the holder of a right put in jeopardy by a
court's order cannot defy its command and appeal the resulting
contempt citation. In In re Grand Jury Investigation of Ocean
Transportation, we considered a motion for return of
privileged documents that Sea-Land Services, Inc., had
mistakenly turned over to the grand jury in response to a
subpoena. 9 604 F.2d 672, 673 (D.C. Cir. 1979) (per curiam).
We found jurisdiction on "the rationale of Perlman," reasoning
that Sea-Land "had not for some time enjoyed possession of
the documents [and] could not have pursued the traditional
route for contesting t~enying its motion] by standing
in contempt." I d. - argues that this language
demonstrates that Perlman applies not only to disclosure
orders, but also to motions for return of property. In In re
Berkley & Co., Inc., the Eighth Circuit recognized its
jurisdiction over an appeal from an order that directed the
disclosure to the grand jury of certain seized documents over
which the appellant asserted the attorney-client privilege. 629
F .2d 548, 549-51 (8th Cir. 1980). The court chose to treat the
order as "the functional equivalent of an order denying a

F.3d 391, 397-98 (1st Cir. 2005); In re Grand Jury Subpoena, 190
F.3d 375, 382-83 (5th Cir. 1999); In re Grand Jury Proceedings, 142
F.3d 1416, 1420 n.9 (11th Cir. 1998); In re Grand Jury Subpoenas
Duces Tecum, 85 F.3d 372, 374-75 (8th Cir. 1996).
9
Although it sought return of property, the motion was not a
Rule 41 (g) motion. Rule 41 (g) provides only for return of seized
property, not all property in government custody.
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motion to quash a grand jury subpoena." Id. at 551.
Acknowledging that the Perlman doctrine applies to appeals
from subpoenas, the Eighth Circuit reasoned that the relatively
unique order fell "within the rationale of the Perlman
doctrine." Id. - acknowledges that neither Ocean
Tra~ortation nor In re Berkley involved Rule 41(g) motions,
but. reasons that, together, these decisions support extending
the Perlman doctrine to motions for return of seized property.

We disagree. These two isolated, decades-old decisions
involved unique circumstances. Both we and the Eighth Circuit
recognized the novelty of the orders and cautiously relied on
"the rationale of Perlman." In re Grand Jury Investigation of
Ocean Transp., 604 F .2d at 673 (emphasis added); see also In
re Berkley & Co., Inc., 629 F.2d at 551. Most important,
neither we nor the Eighth Circuit had the benefit of a
jurisdictional doctrine crafted explicitly for the type of order at
issue in those cases, as we do with DiBella in the Rule 41 (g)
context. Thus, earlier decisions to analogize to Perlman in
cases that did not involve Rule 41 (g) are not instructive to us in
cases that do.

We hold that DiBella is the exclusive test for determining
whether we have jurisdiction over appeals from orders denying
Rule 41 (g) motions. To use Perlman to find jurisdiction here
would threaten to swallow DiBella's carefully reasoned
limitation on Rule 41 (g) appeals. The DiBella test prohibits
appeals after an indictment has issued. See DiBella, 369 U.S. at
131. By contrast, even a movant who has been indicted may be
able to avail himself of the Perlman doctrine. Perlman, 24 7
U.S. at 9-10. Thus, extending Perlman to appeals from orders
denying Rule 41 (g) motions would allow appellate courts to
exercise jurisdiction over those appeals even when the
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movant's attempts to recover the property are "tied to a
criminal prosecution in esse" for the purposes of DiBella.
Given the concerns the Supreme Court expressed about
"disruption to the conduct of a criminal trial," DiBella, 369
U.S. at 129, we are hesitant to recognize this end-run around
the jurisdictional limitations in DiBella.

The Supreme Court recently cautioned that "the class of
collaterally appealable orders must remain 'narrow and
selective in its membership.' This admonition has acquired
special force in recent years with the enactment of legislation
designating rulemaking, 'not expansion by court decision,' as
the preferred means for determining whether and when
prejudgment orders should be immediately appealable."
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 130 S. Ct.
599, 609 (2009) (quoting Will v. Hallock, 546 U.S. 345, 350
(2006); Swint v. Chambers Cnty. Comm 'n, 514 U.S. 35, 48
(1995)) (referring to the Rules Enabling Act and subsequent
amendments to the Act's codified provisions); see also id. at
610 (Thomas, J ., concurring). We would be ill-advised to
expand Perlman's scope because its "Delphic" language is
capable of capturing a broad swathe of district court orders
without the indicia of finality. The danger of applying the
Perlman rationale too readily is that Perlman itself "does not
wrestle with the broad policy issues [relating to finality] which
perhaps had to await Cobbledick to be adequately disclosed."
In re Oberkoetter, 612 F.2d 15, 18 (1st Cir. 1980), overruled
on other grounds by In re Grand Jury Subpoenas, 123 F.3d
695, 697 (1st Cir. 1997). Appellants most commonly invoke
the doctrine in the context of an ongoing grand jury
investigation. 15B CHARLES ALAN WRIGHT, ET AL., FEDERAL
PRACTICE & PROCEDURE § 3914.23 at 166-67 (2d ed. 1992).
By permitting appeals during the pendency of these
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investigations, an expanded Perlman doctrine would "interfere
with the administration of the criminal law, postpone trials of
matters of utmost urgency, and ... overload crowded appellate
dockets." In re Oberkoetter, 612 F.2d at 18. Heeding the
admonition in Mohawk, we decline - invitation to
work this unprecedented extension of Perlman.

Because we hold that the Perlman doctrine does not apply
to appeals from orders denying Rule 41 (g) motions, it cannot
afford this court jurisdiction over this appeal.

IV

For the forgoing reasons, the appeal is dismissed for lack
of appellate jurisdiction.

So ordered.
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KAVANAUGH, Circuit Judge, concurring: I join the
Court's fine opinion but note that our decision does not
foreclose interlocutory appellate jurisdiction under Perlman
when (i) the underlying action is not a Rule 41 (g) motion for
return of property and (ii) the party whose documents were
seized raises an attorney-client privilege objection. See In re
Berkley & Co., Inc., 629 F.2d 548, 549-51 (8th Cir. 1980).
Here, however, the attorney-client privilege issue has become
moot during the pendency of the appeal. Therefore, the Court
properly does not address the merits of petitioner's attorney-
client privilege arguments.