AUSAs lacked standing to complain about court's comments on their credibility; US Attorney's office's appeal of results of investigation into its office dismissed for lack of jurisdiction and prudential ripeness

United States v. Carter, David Paxton Zabel; Sheri Catania; Kim I. Flannigan; Terra D. Morehead, Objectors – Appellants, v. Federal Public Defender, Movant - Appellee, 2021 WL 1743232 (10th Cir., May 4, 2021) (KS): What’s the matter with Kansas you may be asking. Here, the district court made statements reflecting “negatively” on four Assistant United States Attorneys, who testified in court about practices in their office. They appealed, arguing that the district court deprived them of due process. The panel dismissed their appeal for lack of standing. Specifically they did not have a “particularized and significant stake in the appeal.” The district court’s comments arose from a criminal case, in which the government investigated and then later charged 6 people in a drug conspiracy among detainees and employees at a Kansas detention facility. After the charges were filed the district court found out a prosecutor seized recordings of conversations between detainees and their attorneys. These included soundless videos of meetings and audio recordings of telephone calls. A lengthy investigation with a special master ensued which included an examination into the actions and conduct of the USAO and staff in “procuring, obtaining and using video and audio recordings of attorney-client meetings and phone calls.” The four AUSAs testified as fact witnesses in this investigation. From this investigation the district court concluded that all four were known to engage in “heavy-handed, unfair prosecutorial practices,” (like late disclosure of Giglio and Brady information), abusive charging practices in drug cases and “bait and switch” § 5K1.1 agreements. The court also found much of their testimony regarding what they knew about the seized recordings not credible. The panel said the court’s statements did not trigger appellate standing for these nonparty prosecutors. The four were not “directly aggrieved” by these statements. An adverse credibility finding is not a finding of misconduct. To have standing, a non party attorney must show the court ordered direct restrictions on the attorney. Here, the court did not disqualify them or impose sanctions or make a finding of misconduct. Even a referral for discipline does not confer standing. United States v. Carter, Federal Public Defender, Movant-Appellee, 2021 WL 1743235 (10th Cir., May 4, 2021) (KS): This case relates to the one above. Using Fed.R.Crim.P. 41(g), our fearless FPD colleagues in Kansas moved for the return of the recordings containing attorney-client communications that were seized by the United States Attorney’s Office. That motion lead to the investigation referenced above. In this appeal the USAO argued the investigation into its practices and the office was unlawful, the district court’s statements and findings regarding possible Sixth Amendment violations were incorrect, that court’s contempt findings were clearly erroneous and it also erred in stating it intended to be assigned to the post-conviction cases caused by the investigation’s results. The panel dismissed the USAO’s appeal for lack of jurisdiction and prudential ripeness. Just because the district court’s adverse statements and contempt findings may bolster more than 100 post conviction claims does not mean the USAO was “aggrieved” by those findings as a matter of law. The panel explained that the district court’s statements and findings do not necessarily mean the USAO will be precluded by collateral estoppel from relitigating the same issues in a 28 U.S.C. § 2255 context. And even if the court does rely on its earlier statements and findings in ruling on the § 2255 motions, the USAO can appeal those rulings. The court’s contempt findings were not part of its judgment, nor necessary for its final decision, in which it dismissed Carter’s indictment and ordered that the USAO give the FPD the recordings. Thus, the USAO does not have standing to challenge them in this appeal. Regarding possible Sixth Amendment violations by the USAO, the district court did not make a final determination on whether there were actual violations. It said it would assess each case individually and decide whether that particular person’s Sixth Amendment right was violated. Similarly, its comment that it intended to take on the post conviction cases, was just a comment. The USAO can challenge the reassignments in those cases, if they take place. Finally, the USAO complaint that the investigation was unlawful is moot. Even it had been improper, there is no “effectual relief” the panel could grant.