IN RE: GRAND JURY INVESTIGATION On Appeal from the United States District Court… v. Skiles, 420 F.3d 301, 304-05 3d Cir. 2005 internal quotation marks omitted . The…

Because this is an appeal from a grand jury proceeding, the docket of which is sealed,1
we will refer to the appealing party in this matter only as “Appellant.”
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3727
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IN RE: GRAND JURY INVESTIGATION
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Misc. Action No. 2-07-mc-003000-002)
District Judge: Honorable Stewart Dalzell
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 2, 2009
Before: BARRY, AMBRO and ROTH, Circuit Judges
(Opinion filed January 29, 2010 )
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OPINION
PER CURIAM
Appellant’s employer was recently the subject of a federal grand jury1
investigation. The Government issued Appellant a subpoena to produce his fingerprints
for use by the grand jury. Appellant provided his fingerprints to the grand jury pursuant
to an agreement with the Government that preserved Appellant’s right to seek a protective

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order from the District Court to prevent the Government from entering his fingerprints
into any database or from providing them to any other law enforcement agency.
Appellant also sought to have the Government destroy the fingerprints at the close of its
investigation. The District Court denied the motion, and Appellant filed a timely notice
of appeal.
We are satisfied that we have jurisdiction over this appeal pursuant to 28 U.S.C. §
1291. An order is appealable under the collateral order doctrine where it (1)
“conclusively determines the disputed question,” (2) “resolves an important issue that is
completely separate from the merits of the dispute,” and (3) will be “effectively
unreviewable on appeal from a final judgment.” Shingara v. Skiles, 420 F.3d 301,
304–05 (3d Cir. 2005) (internal quotation marks omitted). The District Court’s denial of
Appellant’s motion for a protective order satisfies this standard: (1) the Court
“conclusively determine[d]” that Appellant was not entitled to the relief he sought; (2)
Appellant’s challenge to the Government’s future use of his fingerprints is “completely
separate” from the grand jury’s investigation of Appellant’s employer; and (3) the District
Court’s order will be “effectively unreviewable” on appeal, as Appellant is neither a
subject nor a target of the grand jury investigation (thus presumably foreclosing a direct
appeal from a criminal conviction as a possible avenue for appellate review). Cf.
Perlman v. United States, 247 U.S. 7, 12–13 (1918) (prospective grand jury target could
immediately appeal the refusal to quash a grand jury subpoena directed to a third party in

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possession of the target’s property); United States v. RMI Co., 599 F.2d 1183, 1186-87
(3d Cir. 1970) (applying Perlman and holding that district court’s denial of corporation’s
motion for a protective order seeking to prevent the disclosure of documents disclosed to
the grand jury in response to a subpoena was an immediately appealable order). In this
context, we are satisfied that the denial of Appellant’s motion for a protective order is
sufficiently final for purposes of our appellate review. We review the District Court’s
denial of a protective order for abuse of discretion. Shingara, 420 F.3d at 305.
In support of his contention that the District Court erred in denying his motion,
Appellant points to the following statement:
Finally, it may appropriately be noted that since the Government has no
general right to retain files of handwriting exemplars, fingerprints and mug
shots, any enforcement order may properly, on the witness’ request, provide
that if these materials do not prove to be relevant to the grand jury’s inquiry,
or to a resulting indictment, they be returned to the witness or destroyed.
In re Grand Jury Proceedings (Schofield), 486 F.2d 85, 93-94 (3d Cir. 1973).
First, we agree with Appellee that this statement is dictum, as Schofield dealt primarily
with the showing the Government is required to make before a district court may hold a
witness in civil contempt for refusing to comply with a subpoena. See id. at 88. Further,
even if, for the sake of argument, this statement establishes a rule which applies to grand
jury witnesses, Appellant has failed to show that he falls within the ambit of that rule.
Namely, Appellant has not shown or even alleged that his fingerprints are not relevant to

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Appellant asserts that the grand jury has returned an indictment against his employer.2
The Government does not address this issue.
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the grand jury’s inquiry or the resulting indictment. Finally, the language in Schofield is2
discretionary. A district court “may properly” enter an order directing the Government to
return witness materials if they are not relevant to the grand jury’s investigation. Id. at
93. Appellant points to no case-law or statute which requires a district court to return or
destroy a grand jury witness’s fingerprints.
Appellant argues that the District Court abused its discretion by allowing the
Government to publish his fingerprints in a database in violation of Fed. R. Crim. P. 6.
The Government, however, has not indicated that it would “publish” Appellant’s
fingerprints in any database nor has Appellant specifically alleged which portion of Rule
6 the Government’s retention of his fingerprints would violate. Indeed, Rule 6 allows
disclosure of a grand jury matter to any government personnel that an attorney for the
government considers necessary to assist in performing that attorney’s duty to enforce
federal criminal law. Fed. R. Crim. P. 6(e)(3)(A)(ii).
Finally, Appellant argues that the District Court ignored his separation of powers
argument. Apparently, Appellant believes that the U.S. Attorney, without Congressional
authorization, will build a national database of citizens’ “biometric identifiers” through
the use of grand jury subpoenas. (Appellant’s Br. at 19.) This argument is patently
meritless. In fact, Schofield, the case on which Appellant relies in the first portion of his

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brief, requires the Government to make “some preliminary showing by affidavit that each
item [being subpoenaed] is at least relevant to an investigation being conducted by the
grand jury and properly within its jurisdiction, and is not sought primarily for another
purpose.” In re Grand Jury Subpoena, 223 F.3d 213, 216 (3d Cir. 2000) (quoting
Schofield, 486 F.2d at 93). Therefore, the District Court did not abuse its discretion in
denying Appellant’s motion for a protective order.
For the foregoing reasons, we will affirm the District Court’s order.
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