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`20-3061
`United States v. Maxwell
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`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`SUMMARY ORDER
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`Rulings by summary order do not have precedential effect. Citation to a summary order filed
`on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
`Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
`document filed with this Court, a party must cite either the Federal Appendix or an
`electronic database (with the notation “summary order”). A party citing a summary order
`must serve a copy of it on any party not represented by counsel.
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`At a stated term of the United States Court of Appeals for the Second Circuit, held at
`the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
`on the 19th day of October, two thousand twenty.
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`PRESENT:
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`JOSÉ A. CABRANES,
`ROSEMARY S. POOLER,
`REENA RAGGI,
`Circuit Judges.
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`UNITED STATES,
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`20-3061-cr
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`LARA POMERANTZ, Assistant United
`States Attorney (Maurene Comey, Alison
`Moe, and Karl Metzner, Assistant United
`States Attorneys, on the brief), for Audrey
`Strauss, Acting United States Attorney,
`Southern District of New York, New
`York, NY.
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`ADAM MUELLER (Ty Gee, on the brief),
`Haddon, Morgan and Foreman, P.C.,
`Denver, CO.
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`Appellee,
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`v.
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`Defendant-Appellant.
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`GHISLAINE MAXWELL,
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`FOR APPELLEE:
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`FOR DEFENDANT-APPELLANT:
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`Appeal from an order of the United States District Court for the Southern District of New
`York (Alison J. Nathan, Judge).
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`UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
`ADJUDGED, AND DECREED that the motion to consolidate is DENIED and the appeal is
`DISMISSED for want of jurisdiction.
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`Defendant-Appellant Ghislaine Maxwell seeks interlocutory relief from a September 2, 2020
`denial of her motion to modify a protective order entered on July 30, 2020. In the alternative, she
`argues that this Court should issue a writ of mandamus directing the District Court to modify the
`protective order. She also moves to consolidate the instant appeal with the appeal pending in Giuffre
`v. Maxwell, No. 20-2413. Meanwhile, the Government moves this Court to dismiss the appeal for
`lack of jurisdiction and opposes Maxwell’s motion to consolidate on the grounds that the issues
`presented on appeal are both factually and legally distinct. We assume the parties’ familiarity with the
`underlying facts, the procedural history of the case, and the issues on appeal.
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`This Court has jurisdiction over the “final decisions of the district courts.” 28 U.S.C. § 1291.
`“Finality as a condition of review is an historic characteristic of federal appellate procedure.”
`Cobbledick v. United States, 309 U.S. 323, 324 (1940). The “final judgment rule requires that a party
`must ordinarily raise all claims of error in a single appeal following final judgment on the merits.”
`Flanagan v. United States, 465 U.S. 259, 263 (1984) (internal quotation marks omitted). “This
`insistence on finality and prohibition of piecemeal review discourage undue litigiousness and leaden-
`footed administration of justice, particularly damaging to the conduct of criminal cases.” Di Bella v.
`United States, 369 U.S. 121, 124 (1962) (citing Cobbledick, 309 U.S. at 324–26). The final judgment rule
`is therefore “at its strongest in the field of criminal law.” United States v. Hollywood Motor Car Co., 458
`U.S. 263, 265 (1982). In criminal cases, “finality generally is defined by a judgment of conviction and
`the imposition of a sentence.” Florida v. Thomas, 532 U.S. 774, 777 (2001) (internal quotation marks
`omitted).
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`There is a “narrow” exception to the final judgment rule that permits appeals from
`“decisions that do not terminate the litigation, but must, in the interest of achieving a healthy legal
`system, nonetheless be treated as final.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867–
`68 (1994) (internal quotation marks and citations omitted). The Supreme Court has described the
`“conditions for collateral order appeal as stringent” in general, Digital Equip. Corp., 511 U.S. at 868
`(emphasis added), and, with respect to criminal cases, it has “interpreted the collateral order
`exception with the utmost strictness.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989)
`(emphasis added) (internal quotation marks omitted). To fall within this limited category of
`appealable collateral orders, a decision must “(1) conclusively determine the disputed question, (2)
`resolve an important issue completely separate from the merits of the action, and (3) be effectively
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`unreviewable on appeal from a final judgment.” United States v. Punn, 737 F.3d 1, 5 (2d Cir. 2013)
`(internal quotation marks omitted).
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`Thus far, the Supreme Court has identified just four circumstances in criminal cases that
`come within this exception: motions to dismiss invoking double jeopardy, motions to reduce bail,
`motions to dismiss under the Speech or Debate Clause, and the forced administration of
`antipsychotic medication. See Sell v. United States, 539 U.S. 166 (2003) (holding that an order
`permitting the forced administration of antipsychotic medication is immediately appealable), see also
`Midland Asphalt, 489 U.S. at 799 (listing the recognized exceptions). Maxwell does not appeal from
`an order falling within one of these categories. Instead, she appeals from a denial of her motion to
`modify a protective order, which we have held does not fall within the collateral order exception. See
`Mohawk Indus. v. Carpenter, 558 U.S. 100, 107–08 (2009) (holding that pretrial discovery orders are not
`immediately appealable absent a showing that “delaying review until the entry of a final judgment
`would imperil a substantial public interest or some particular value of a high order” (internal
`quotation marks omitted)); S.E.C. v. Rajaratnam, 622 F.3d 159, 168 (2d Cir. 2010) (holding that the
`Court lacks jurisdiction to review interlocutory “discovery orders allegedly adverse to a claim of
`privilege or privacy”); United States v. Caparros, 800 F.2d 23, 26 (2d Cir. 1986) (holding that the Court
`lacks jurisdiction to review interlocutory protective orders governing “the right of a criminal
`defendant to disclose information given to [her] in discovery”). We decline to exercise jurisdiction
`where we have none, and accordingly dismiss this appeal for lack of jurisdiction.
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`In the alternative, Maxwell asks that this Court issue a writ of mandamus directing the
`District Court to modify the protective order. This Court will issue the writ as an exception to the
`finality rule “only in exceptional circumstances amounting to a judicial usurpation of power or a
`clear abuse of discretion.” In re City of New York, 607 F.3d 923, 932 (2d Cir. 2010) (internal quotation
`marks omitted). “[M]ere error, even gross error in a particular case, as distinguished from a
`calculated and repeated disregard of governing rules, does not suffice to support issuance of the
`writ.” United States v. DiStefano, 464 F.2d 845, 850 (2d Cir. 1972). Here, Maxwell failed to
`demonstrate that such exceptional circumstances exist and that the District Court usurped its power
`or abused its discretion. Accordingly, we decline to issue a writ modifying the protective order.
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`Finally, Maxwell also seeks to consolidate the instant appeal with the civil appeal pending in
`Guiffre v. Maxwell, No. 20-2413-cv. Because this Court lacks jurisdiction over Maxwell’s appeal of the
`denial of her motion to modify her protective order, and because mandamus relief is not warranted,
`we deny as moot her motions to consolidate this appeal with the civil appeal. In any event, this
`Court has heard Maxwell’s criminal appeal in tandem with her civil appeal. To secure the further
`relief of formal consolidation, Maxwell “bear[s] the burden of showing the commonality of factual
`and legal issues in different actions.” In re Repetitive Stress Injury Litig., 11 F.3d 368, 373 (2d Cir. 1993).
`Here, the parties, Judges, and legal issues presented in these appeals lack common identity. The
`criminal appeal concerns a denial of Maxwell’s motion to modify a protective order while the civil
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`appeal concerns an unsealing order. Further, as the District Court correctly noted, Maxwell
`“provide[s] no coherent explanation” connecting the discovery materials at issue in the criminal case
`to the civil litigation.
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`CONCLUSION
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`We have reviewed all of the arguments raised by Defendant-Appellant Maxwell on appeal
`and find them to be without merit. For the foregoing reasons, the appeal is DISMISSED and the
`motion to consolidate is DENIED as moot.
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`Any appeal in this criminal case shall be referred to another panel in the ordinary course.
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`FOR THE COURT:
`Catherine O’Hagan Wolfe, Clerk
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