434 F.Supp.2d 377 (E.D.Va. 2006), N04-2294, United States v. Doe

Docket Nº:N04-2294, G.J.2005-2.
Citation:434 F.Supp.2d 377
Party Name:In re: UNITED STATES v. John DOE
Case Date:May 18, 2006
Court:United States District Courts, 4th Circuit, Eastern District of Virginia

Page 377

434 F.Supp.2d 377 (E.D.Va. 2006)



John DOE

Nos. N04-2294, G.J.2005-2.

United States District Court, E.D. Virginia, Norfolk Division.

May 18, 2006

Jennifer Dominguez, Edward Caspar, Department of Justice, Civil Rights Division--Criminal Section, Washington, DC, for United States.

Christopher Boynton, Senior City Attorney, Office of the City Attorney, Va. Beach, for City of Virginia Beach.


DOUMAR, District Judge.

Presently before the Court is a Motion by a City to Quash Subpoena Duces Tecum under Rule 17(c) of the Federal Rules of Criminal Procedure. The City's motion is hereby GRANTED.


The City was served with a subpoena duces tecum from the United States that requested the production of documents containing statements made by police officers

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to what the Court will refer to as the Department's internal affairs office--an investigatory arm within the Department. These statements were obtained as part of the Police Department's internal investigation of what may be the target of a grand jury investigation.

The City contends that the documents contain statements given under conditions of confidentiality and other candid information "indispensable to the objective investigation of police department operations required for command review and action and privileged from disclosure and use for criminal prosecution purposes under applicable law."

The records at issue here belong to the an office akin to an "Internal Affairs" body. The Chief of Police has decreed that every officer, including those subject to internal investigation, must cooperate in internal investigations as a condition of employment. The Chief further decreed that any information can be used in departmental administrative actions, but not in any criminal proceeding. Officers from whom information is requested are advised in writing that the information cannot be used in criminal matters. The City asserts that this compelled information, which is necessary for the administration and management of the Police Department, was given with the express promise that it not be used in a criminal proceeding.


A. Rule 17(c)

Rule 17(c) of the Federal Rules of Criminal Procedure states that "the court may quash or modify the subpoena if compliance would be unreasonable or oppressive." Under the Rule, the City has the burden of showing that compliance with the subpoena is unreasonable. The law presumes that a grand jury subpoena is reasonable and the burden of showing unreasonableness is on the party seeking to avoid compliance. See United States v. R. Enters., Inc., 498 U.S. 292, 301, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991). "[T]he challenging party's unenviable task is to seek to persuade the court that the subpoena that has been served on [him or her] could not possibly serve any investigatory purpose that the grand jury could legitimately be pursuing." Id. at 300, 111 S.Ct. 722.

In determining the reasonableness of a subpoena duces tecum, a court must take into account "the difficult position of subpoena recipients [without impairing] the strong governmental interests in affording grand juries wide latitude, avoiding mini-trials on peripheral matters, and preserving the necessary level of secrecy." Id. at 292, 111 S.Ct. 722. As part of the Court's determination of reasonableness, the Court may consider policy concerns, which can include the expectations of confidentiality of those whose records are sought. See Grand Jury Proceedings: Subpoenas Duces Tecum, 827 F.2d 301, 306 (8th Cir.1987); see also R. Enters., Inc., 498 U.S. at 303-306, 111 S.Ct. 722 (Stevens, concurring). The inquiry into the reasonableness of a particular subpoena "cannot be reduced to formula; for relevancy and adequacy or excess in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope of the inquiry." Okla. Press Pub. Co. v. Walling, 327 U.S. 186, 209, 66 S.Ct. 494, 90 L.Ed. 614 (1946).

B. Compelled Statements

"[T]he protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office." Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) .

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The Fifth Amendment protects against the use of compelled statements against the person who made the statement in criminal proceedings. Garrity, 385 U.S. at 500, 87 S.Ct. 616. However, it does not protect against the production of those statements to a grand jury. See In re Grand Jury Subpoena (Huntington Beach Police Dept.), 75 F.3d 446, 447 (9th Cir.1996). "[T]he protection of the Fifth Amendment privilege, when applied to statements made by police officers in internal affairs files, must focus on the use of those statements against the officers who gave them. The statements are not privileged from production to a subpoenaing authority." Id.


Under Rule 17(c), the standard for quashing a subpoena is one of reasonableness. Generally speaking, a grand jury has wide latitude in subpoenaing witnesses and documents. See R. Enters., Inc., 498 U.S. at 297, 111 S.Ct. 722. While the majority opinion in R. Enterprises, Inc. focused on reasonableness with respect to the relevance of a subpoena, three Justices concurred with the opinion, writing separately to emphasize that reasonableness can depend on a number of factors. Id. at 305-06, 111 S.Ct. 722. As specific examples, the Justices pointed out that burdens in terms of cost, time, and effort, or significant intrusions on privacy interests, trade secrets, or other confidential information can be valid reasons for challenging a subpoena duces tecum. Id. While the majority opinion was restricted to the more narrow question of relevancy, the concurring justices asserted, more broadly, that Rule 17(c) "requires the district court to balance the burden of compliance, on the one hand, against the governmental interest in obtaining the documents on the other." Id. at 303, 111 S.Ct. 722.

A. Burden of Compliance v. Interests of the United States

The City argues that it faces two closely-related burdens in complying with the subpoena. First, compliance would undermine its ability to operate the internal affairs office in an efficient and effective manner. Second, the use of these compelled statements would violate the officers' privileges against self-incrimination under the Fifth Amendment. The United States counters these arguments by downplaying the importance of confidentiality in the operation of the internal affairs office, by asserting the importance of the grand jury's role in checking a potentially overzealous prosecutor, and by asserting that, given the complex set of procedures used to handle statements that might run afoul of the Fifth Amendment, it more than adequately addresses the City's concerns about self-incrimination.

The subpoena duces tecum at issue here requests files maintained by the Police Department's internal investigative arm. According to a Police Department order, the internal affairs office is "responsible for maintaining and, where possible, increasing the integrity of the [ ] Department of Police through the full, fair, and objective investigation of allegations of misconduct on the part of members and employees of the department." The purpose of the internal affairs office, in essence, is to enable the Police Department to keep its own house in order. The office has broad investigatory power within the Department. Compliance with its requests for information from police officers is a condition of employment. In return for compliance, police officers are given certain expectations of confidentiality. Before any questioning occurs, a subject is given a form that states, in...

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