25-1726 In re Grand Jury Subpoena Dated May 29, 2025

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

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 16th day of December, two thousand twenty-five.

PRESENT:

DENNY CHIN, RICHARD J. SULLIVAN, ALISON J. NATHAN, Circuit Judges. _____________________________________

IN RE GRAND JURY SUBPOENA DATED MAY 29, 2025 ______________________________________

UNITED STATES OF AMERICA,

Movant-Appellee,

v. No. 25-1726 SEALED APPELLANT,

Respondent-Appellant. * _____________________________________

For Respondent-Appellant: PATRICK O’KEKE, O’keke & Associates, P.C., Brooklyn, NY.

For Movant-Appellee: HENRY L. ROSS (Mitzi S. Steiner, Jacob R. Fiddelman, on the brief), Assistant United States Attorneys, for Jay Clayton, United States Attorney for the Southern District of New York, New York, NY.

Appeal from an order of the United States District Court for the Southern

District of New York (Katherine Polk Failla, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the June 24, 2025 order of the district court is

AFFIRMED.

Sealed Appellant appeals from the district court’s order holding him in

contempt for failing to comply with two orders directing him to produce, pursuant

to a grand-jury subpoena, draft reports arising out of Sealed Appellant’s former

employment. We assume the parties’ familiarity with the underlying facts,

procedural history, and issues on appeal.

* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.

2 We previously dismissed this appeal for lack of jurisdiction. See In re Grand

Jury Subpoena Dated Apr. 26, 2023, No. 24-573,

, at *2 (2d Cir. Mar.

13, 2025). Because Sealed Appellant has since defied the district court’s order

enforcing the subpoena and was held in contempt, we now possess jurisdiction.

See In re Air Crash at Belle Harbor,

(2d Cir. 2007) (“To obtain

appellate review, the subpoenaed person ordinarily must defy the district court’s

enforcement order, be held in contempt, and then appeal the contempt order,

which is regarded as final under [section] 1291.” (internal quotation marks

omitted)). Proceeding to the merits, Sealed Appellant argues that the grand-jury

subpoena violates his Fifth Amendment right because the very act of producing

the draft reports would be a form of compelled self-incrimination. We disagree.

The Fifth Amendment provides that “[n]o person . . . shall be compelled in

any criminal case to be a witness against himself.” U.S. Const. amend. V.

Generally, the Fifth Amendment “applies only when the accused is compelled to

make a [t]estimonial [c]ommunication that is incriminating.” Fisher v. United

States,

(1976). Nevertheless, the Supreme Court has explained

that “[t]he act of producing evidence in response to a subpoena . . . has

communicative aspects of its own,” and thus may constitute an incriminating

3 testimonial communication “depend[ing] on the facts and circumstances” of the

case.

.

At the same time, the Supreme Court has recognized an exception to the

rule against self-incrimination, known as the foregone-conclusion doctrine, which

applies when “[t]he existence and location of the [subpoenaed] papers are a

foregone conclusion and the [subpoena recipient] adds little or nothing to the sum

total of the [g]overnment’s information by conceding that he in fact has the

papers.”

. To invoke the foregone-conclusion exception, “the

[g]overnment must establish with reasonable particularity its knowledge as to

(1) [the] existence of the documents, (2) the [recipient’s] possession or control of

the documents[,] and (3) the authenticity of the documents.” United States v.

Fridman,

(2d Cir. 2020) (internal quotation marks omitted). “The

[g]overnment must know[] and not merely infer[]” these elements, which must be

demonstrated by a quantum of proof that falls between a “mere inference” and

“perfect knowledge.”

at 174 n.3 (emphases deleted and internal quotation

marks omitted). If it does so, the compelled production of such documents “does

not run afoul of the Fifth Amendment.”

at 174 (citing Fisher,

).

We review a district court’s “determination of questions of law as to the

4 Fifth Amendment privilege” de novo, but “we will overturn [a] [d]istrict [c]ourt’s

[factual] determination as to whether ‘the act of producing the documents would

involve testimonial self-incrimination’ only where such a finding ‘has no support

in the record.’” United States v. Greenfield,

(2d Cir. 2016)

(emphasis added) (quoting United States v. Doe,

, 613–14 (1984)).

Having considered the record as a whole, we agree with the district court

that the foregone-conclusion doctrine clearly applies here. With respect to the

first prong of the doctrine, the district court credited the testimony of two

witnesses who represented that Sealed Appellant’s attorney, Patrick O’keke,

disclosed the existence of the draft reports on at least two occasions. Specifically,

Assistant United States Attorney Mitzi Steiner testified that O’keke disclosed to

her the existence of the reports at a January 12, 2023 meeting. Steiner further

testified that during a January 23, 2023 phone call, O’keke reiterated the existence

of these reports and provided details concerning their contents, as well as where

they were being stored. This testimony was corroborated by Steiner’s

contemporaneous notes of the call, the testimony of a law-student intern who also

participated in the call, the intern’s handwritten contemporaneous notes of the

call, the research assignment that Steiner gave to the intern regarding corporate

5 records held by an employee, and the subpoena that Steiner subsequently issued

to O’keke to produce the draft reports. Although Sealed Appellant insists that

O’keke used only “noncommittal words and phrases” when discussing the

existence of the draft reports, Sealed Appellant Br. at 4, we will not disturb the

district court’s finding that “O’[k]eke spoke in a declarative tone and not a

hypothetical one regarding his possession of the draft report,” Sp. App’x at 10,

which was supported by Steiner’s and the intern’s testimony and notes to that

effect. See Greenfield,

.

With respect to the second prong of the foregone-conclusion doctrine –

whether the recipient is in possession or control of the documents – the record

similarly supports the district court’s conclusion that “the draft reports were first

in [Sealed Appellant’s] possession[,] then in Mr. O’[k]eke’s[,] and then returned to

[Sealed Appellant].” Sp. App’x at 16. As Steiner and the intern testified, O’keke

informed them in January 2023 that he possessed the draft reports. O’keke

subsequently disclosed that on March 2, 2023, he returned Sealed Appellant’s file

to him, “including any and all documents [Sealed Appellant] may have brought

in for [O’keke’s] review.” Sealed App’x at 37. As a result, when the subpoena

was issued less than two months later on April 26, 2023, the government had

6 sufficient knowledge that the reports were in Sealed Appellant’s possession. 1 See

Fridman,

(“The [g]overnment must prove its knowledge [of

existence and possession or control] at the time the summons was issued.”); see

also Greenfield,

(“[I]n many circumstances, the [g]overnment’s

ability to establish existence and control as of an earlier date does permit an

inference of existence and control as of the date of the [s]ummons.” (emphasis

added)). This is especially true given “the absence of any indication that the

documents were transferred to someone else or were destroyed” and “the

relatively short time period between the date as of which possession was shown

and the date of the ensuing” subpoena. Greenfield, 831 F.3d at 125–26 (alteration

adopted and internal quotation marks omitted).

Finally, as to the third prong – the authenticity of the documents – the record

supports the district court’s conclusion that the government could independently

authenticate the draft reports. We have previously explained that documentary

evidence can be independently authenticated “through the testimony of third

parties familiar with that type of document,” “by comparison to a prior version of

1 Because the grand jury that issued the April 2023 subpoena had since expired, the government “cover[ed] its bases,” Sp. App’x at 23, by empaneling “a new, current grand jury,” Gov’t Br. at 17, and reissuing a “substantially identical” subpoena, Add. at 14 n.1, on May 29, 2025. The government then served Sealed Appellant with the reissued subpoena on June 3.

7 the document,” or “by comparison to other related documents.” Id. at 118. We

have likewise held that a document can be independently authenticated by

“asking the trier of fact to compare” the different versions, In re Grand Jury

Subpoena Duces Tecum Dated Oct. 29, 2002,

(2d Cir. 1993), through the

testimony of an individual with knowledge of the author’s handwriting, cf., e.g.,

In re Grand Jury Subpoena Dated July 6, 2005,

(2d Cir. 2007)

(discussing voice authentication), or through expert testimony, see

The district

court correctly noted that each of these methods could be employed here – i.e., the

government could call another employee who was familiar with the report, ask

the trier of fact to compare the filed and draft versions of the report, call a witness

familiar with Sealed Appellant’s handwriting, or call a handwriting expert.

In sum, we conclude that ample evidence supported each of the three

elements of the foregone-conclusion doctrine, and that the grand-jury subpoena

did not compromise Sealed Appellant’s Fifth Amendment right against compelled

self-incrimination.

8 * * *

We have considered Sealed Appellant’s remaining arguments and find

them to be without merit. Accordingly, we AFFIRM the order of the district

court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

9