United States v. Carter, 995 F.3d 1214 (10th Cir. May 4, 2021); United States v. Carter, 995 F.3d 1222 (10th Cir. May 4, 2021)

These related appeals presented interesting questions about appellate standing, jurisdiction, and ripeness.  Both arose from a criminal case in which the district court learned after charges were filed that a prosecutor had obtained recordings of conversations between detainees and their attorneys.  This led to a lengthy investigation, with the district court appointing a special master who conducted the investigation in three phases.

The first appeal was brought by four AUSAs who testified as fact witnesses in the third phase of the investigation.  Their appeal argued that statements the district court made at the close of the proceeding that reflected negatively on them deprived them of due process.  The Tenth Circuit held the four AUSAs—non-parties to the case—lacked appellate standing.  The court evaluated its attorney-standing doctrine, and held the AUSAs did not have standing under that doctrine because the district court’s statements did not “directly aggrieve the four AUSAs because they had acted only as fact witnesses and the district court had not found any misconduct.”

The United States Attorney’s Office brought the second appeal, challenging statements the district court made in its order dismissing the indictment against the remaining defendant that were adverse to the USAO and its finding of contempt based partly on the failure to preserve evidence.  Following the investigation, over a hundred prisoners filed post-conviction motions, challenging their convictions or sentences based on alleged Sixth Amendment violations.  The Tenth Circuit held that the USAO had not established a “stake in the appeal” sufficient for it to appeal from an adverse ruling collateral to the judgment on the merits, such that the court lacked jurisdiction.  It alternatively held that even if it had jurisdiction, the appeal would be prudentially unripe because the “statements about the Sixth Amendment lack any legal effect unless the district court applies them in the post-conviction cases.”