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 office
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.
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.
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.,
To fall within the scope of the collateral order doctrine,- an order must “(1) conclusively determine the disputed question, (2) resolve an- important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.” Van Cauwenberghe v. Biard,
In general, an order denying a motion- to quash a grand jury subpoena is not a final decision and is not immediately appealable under § 1291. In re Grand Jury Subpoena for New York State Income Tax Records,
One such instance, the “Perlman Exception,” takes its name from the Supreme Court decision describing it, Perlman v. United States,
The Perlman decision has “come to stand for the principle that the holder of an asserted privilege may immediately appeal the enforcement of a subpoena when the subpoena is directed at another person who does not object to providing the testimony or documents at issue.” In re Air Crash at Belle Harbor,
II. Abuse of the Grand Jury Process
“The law is settled in this circuit and elsewhere that it is improper to utilize a Grand Jury for the sole or dominating purpose of preparing an already pending indictment for trial.” In re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simels),
III. Analysis
Punn initially argues that the district court’s order is immediately appealable because it denied his motion to intervene in the grand jury proceedings, and “[i]t is well settled that the denial of a motion to intervene as of right is an appealable final order under 28. U.S.C. § 1291.” In re Katz,
Punn next argues that the denial of his motion to quash the grand jury subpoenas issued to his children falls within the small category of rulings encompassed by the collateral order doctrine. That argument is more troubling, because our precedents appear to point in different directions. Punn points to our decision in Siméis, which permitted an immediate appeal of an order denying the appellant’s motion to quash a grand jury subpoena directed to another person, and held that its issuance constituted an abuse of the grand jury process.
The earliest of these cases, Perjury Grand Jury, involved an appeal by General Motors Corporation (“GM”) from an order denying, among other things, the company’s motion to quash grand jury subpoenas issued to certain GM officials. In 1961, a federal grand jury in the Southern District of New York investigated allegations that GM had violated the Sherman Act. During the investigation, a number of GM officials testified before the grand jury, which later returned an indictment against GM. The case was transferred to the. Northern District of Illinois, where it was prosecuted by the Antitrust Division of the Department of Justice. In 1962, a second grand jury, also in the' Southern District of New York, was convened to investigate whether the officials who had testified before the 1961 grand jury had committed perjury. An attorney in the Antitrust Division who was assisting in the prosecution of the case in Illinois caused the 1962 grand jury in the Southern District to issue subpoenas to GM officials who had not testified before the 1961 grand jury, but who were purportedly important witnesses for GM in its antitrust case. Upon learning of the subpoenas, GM moved in the Southern District of New York for various relief that would prevent the Antitrust Division from learning of and using evidence from the 1962
Like Punn, GM argued that the subpoenas had to be quashed to prevent the grand jury proceedings from being abused by “enabling the Government to examine defense witnesses in advance of a criminal trial, despite the considered omission from the Federal Rules of Criminal Procedure of any provision for this type of discovery, and to do so, moreover, in the secret, nonadversary form of grand jury testimony.” Perjury Grand Jury,
The Court viewed GM’s position as analogous to that of the movant in DiBella v. United States,
Presentations before a United States Commissioner, as well as before a grand jury, are parts of the federal prosecuto-rial system leading to a criminal trial. Orders granting or denying suppression in the wake of such proceedings' are truly interlocutory, for the criminal trial is then fairly in train. When at the time of ruling there is outstanding a complaint, or a detention or release on bail following arrest, or an arraignment, information, or indictment — in each such case the order on a suppression motion must be treated as but a step in the criminal case preliminary to the trial thereof.
Id. (internal quotation marks and citations omitted).-
In rejecting Lavender’s argument, we emphasized that an inability to precipitate immediate review of the denial one’s- claim is not equivalent to the denial of “any review whatsoever.” Id. at 632 (internal quotation marks omitted); see also Ryan, 402 U.S. at 533,
The district court’s rejection of Lavender’s abuse of process argument will not prevent him from asserting it at trial; he is similarly free to raise his Fourth Amendment claims via motions to suppress or for return of his passport. More to the point, the appellate review that Lavender presently seeks will be available if those arguments fail, the passport or its fruits are received in evidence and a conviction results.
Lavender,
[w]here a claim of privilege is involved appellate courts cannot always repair the error once the “cat is out of the bag.” If forced to rely on motions at trial or on post-trial review for vindication of his rights under the Fifth Amendment, the individual who unsuccessfully challenges a subpoena directed to a third party may be “compelled to surrender the very protection which the privilege is designed to guarantee.”
Id. (citation omitted).
Thus, by 1978, the law of this Circuit was well established that a criminal defendant whose efforts to quash third-party subpoenas on the ground of grand jury abuse were rejected' in the district court was not entitled to immediate review of the district court ruling. The logic of these rulings was clear. Unlike motions to quash that seek to preserve privileges of
This apparently clear and settled rule is arguably called into question, however, by the 1985 case Simels,
Like Punn, Payden argued “that the subpoena constituted an abuse of process because its ‘sole or dominant purpose’ [was] to obtain evidence for use at trial.” Id. Unlike Punn, however, Payden also argued that enforcement of the subpoena would impinge upon his “right to have counsel of his choice, and to have that counsel fully and effectively prepare for trial.” Id. (internal quotation marks omitted). We succinctly noted our jurisdiction over the appeal, explaining simply that “[bjecause appellant-intervenor ... seeks to quash a third-party subpoena on the ground that its enforcement will violate his constitutional rights, we may consider his claims without requiring his attorney to suffer a contempt citation.” Id. at 29. The Siméis Court’s discussion of appellate jurisdiction did not mention, or even cite, either Lavender or Perjury Grand Jury. Instead, it relied on In re Grand Jury Subpoena Served Upon Doe,
Punn points to Siméis as precedent for an immediate appeal of a denial of a motion to quash on the grounds of abuse of the grand jury for trial preparation. While the brief discussion of jurisdiction in Siméis is unenlightening, Punn’s argument draws some force from the basic facts of the case. The Court did accept jurisdiction over the appeal, and rather than address the appellant’s Sixth Amendment claims, it resolved the case by holding that the subpoena should have been quashed because it was issued for the. improper purpose of trial preparation. Simels,
Punn’s reading of Siméis, however, pointedly ignores our prior decisions in Lavender and Perjury Grand Jury. Accepting that reading would require us to hold that Siméis effectively overruled those cases. Such a conclusion is impermissible. First, Siméis cannot have overruled Lavender and Perjury Grand Jury, since a panel of this Court has no power to overrule holdings of prior panels. See WNET, Thirteen v. Aereo, Inc.,
The Siméis panel was faced with a client’s motion to quash a subpoena directed at his attorney, the enforcement of which, the client argued, would have infringed the client’s Sixth Amendment rights to effective assistance and choice of counsel. While no decision of this Court— then or since — has ever held that an order denying a motion to quash grand jury subpoenas directed at third parties on the basis of abuse of the grand jury process would be effectively unreviewable upon a later appeal, at least two decisions — the two decisions relied upon in Siméis — had held or implied that an immediate appeal was available when the movant’s attorney was the subpoenaed party, because of the potential impact on the attorney-client relationship. See Doe,
Viewing Siméis in the context in which it arose, and in relation to the precedent on which it relied, it is clear that the Court’s brief description of its appellate jurisdiction merely reiterated the view that a client could take an immediate appeal from the denial of his motion to quash a subpoena directed to his attorney. See Doe,
In opposition to this conclusion, Punn raises a series of arguments that seek to distinguish Lavender and Perjury Grand Jury from his case or otherwise diminish their import. Those arguments are unavailing. To begin, Punn points out that both Lavender and Perjury Grand Jury were decided before Simels. That point is meritless. As noted above, neither Lavender nor Perjury Grand Jury has been overruled, and we remain bound by both decisions.
With respect to Lavender, Punn contends that an immediate appeal was denied in that, case because Lavender’s passport had already been turned over to the government, and thus the cat was already out of the bag. In contrast, Punn’s children have not yet testified before the federal grand jury, and thus, Punn argues, the harm can and must be averted at this time. Punn’s argument pointedly ignores the fact that the Lavender court expressly distinguished Lavender’s Fifth Amendment self-incrimination claim from his grand jury abuse claim, explaining that only the former presented “a conceivable danger that appellate review following a subsequent conviction will not adequately preserve [appellant’s] rights.” Lavender,
Punn attempts to distinguish Perjury Grand Jury by pointing out that that case involved a grand jury’s investigation into individuals other than the movant and into possible offenses of perjury. We fail to see the relevance of these distinctions to the availability of an immediate appeal from the denial of a motion to quash a subpoena. In Perjury Grand Jury, as here, the essential argument was that the grand jury subpoenas were issued not for the purpose of investigating new crimes, but instead for the sole or dominant purpose of preparing for the movant’s trial on a pending indictment. In nearly every case of alleged grand jury abuse, the government can and does argue that it is investigating other individuals or other crimes.
Thus, a proper application of the collateral order doctrine, and a careful reading of this Circuit’s case law that reconciles our various precedents, lead to the conclusion that an order denying a motion to quash a grand jury subpoena directed at a third party on the ground that the subpoena was issued for the improper purpose of preparing for the movant’s trial on a pending indictment is not a final decision under § 1291, and is therefore not immediately appealable. Punn, who is in the midst of his criminal proceedings, will have an opportunity at or before trial to challenge the admissibility of any evidence obtained through enforcement of the allegedly improper grand jury subpoenas, and his claim will not be “effectively unreviewable” upon appeal from a final judgment.
Although Punn, who is not the target of the grand jury subpoenas, is unable to precipitate immediate appellate review through contempt proceedings, his is simply not among the “limited class of cases where denial of immediate review would render impossible any review whatsoever.” Ryan,
In short, Punn’s claim can be adequately vindicated upon appeal from a final judgment. The nature of Punn’s interest in preventing the enforcement of the grand jury subpoenas is not the kind “whose legal and practical value will be destroyed if not vindicated on collateral review,” In re Local 178,
CONCLUSION
Accordingly, we hold that the district court’s orders denying Punn’s motion to quash the grand jury subpoenas directed to Sippy and Jesse Punn, and denying reconsideration of that motion, do not fall within the small class of rulings encompassed by the collateral order doctrine and are not otherwise final. Because they are not final decisions within the meaning of 28 U.S.C. § 1291, they are not immediately appealable. The appeal from the district court’s orders is therefore DISMISSED.
Notes
. Punn's motion was originally filed on his own behalf and, purportedly, on behalf of Jesse and Sippy. The Punn children were given an opportunity to seek their own counsel, and subsequently filed their own motion to quash the grand jury subpoenas, which the
. Although some of this Court’s opinions have referred to the question of appellate jurisdiction in cases such as the instant one as whether the appellant has “standing to pursue an immediate appeal” of the denial of the motion to quash, see In re Subpoenas to Local 478,
. In letters filed with the district court after the defendant's motion to quash, the defendant and government addressed the question of defendant's standing. In those letters, both the defendant and government characterized the defendant’s motion as a motion to intervene in the grand jury proceedings. This subsequent characterization, however, cannot trump Punn's own initial characterization of his motion, and the district court's understanding of that motion.
. Even if Punn had properly filed a motion to intervéne as of right in the grand jury proceedings, denial of that motion would merely give this Court-jurisdiction to review the district court's denial of intervention. It would not follow that a denial of his motion to quash would be immediately reviewable in that pro- • .cedural context.
. Today, pursuant to an amendment passed in 1968, see Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197 (1968), all such orders are subject to interlocutory appeal by the United States pursuant to 18 U.S.C. § 3731. At the time of DiBella, only some suppression orders were appealable. The DiBella Court thus had to address whether certain suppression orders not then covered by § 3731 were nevertheless appealable as final orders under 28 U.S.C. § 1291.
. Ultimately, the Court found no jurisdiction to hear even 'Lavender's Fifth Amendment claim of self-incrimination because, Lavender’s passport having already been turned over the Government, “whatever damage might have been prevented- by immediate review of the district court's order [had] already occurred.” Id. at 633.
. Doe, like Siméis, involved an appeal by a client of an order denying the client's motion to quash a grand jury subpoena served on his lawyer. Unlike Siméis, however, the client in Doe had not yet been indicted and there was no pending criminal proceeding. In a footnote, the Court in In re Doe explained the basis for its jurisdiction to the hear the appeal by recognizing an exception to the contempt rule "when the subpoena is directed to a third party and the one seeking to quash the subpoena claims that its enforcement will violate one or more of his constitutional rights,” and observing that many circuits had "allowed an immediate appeal in cases where a party’s attorney is subpoenaed.” Doe,
. We express no opinion as to whether, given subsequent case law development, see Mohawk Indus., Inc. v. Carpenter,
. Having apparently accepted jurisdiction of the appeal on this ground, the Siméis court nevertheless opted not to resolve the merits of Payden’s Sixth Amendment challenge to the subpoenas. Cognizant of the "significance” of the appellant's Sixth Amendment claims, but equally sensible of the view that courts "should not unnecessarily decide broad constitutional issues,” the Court opted to resolve the case on a "narrower ground.” Simels,
. Indeed, in the instant case, the government claims that the grand jury is investigating the additional crime of witness tampering.