In re Grand Jury, John Doe No. G.J.2005-2

• Decision Date: 22 February 2007
• Docket Number: No. 06-4612.,06-4612.
• Citation: 478 F.3d 581
• Parties: In re GRAND JURY, JOHN DOE NO. G.J.2005-2. United States of America, Appellant, v. Under Seal, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

478 F.3d 581

In re GRAND JURY, JOHN DOE NO. G.J.2005-2.

United States of America, Appellant, v. Under Seal, Appellee.

No. 06-4612.

United States Court of Appeals, Fourth Circuit.

Argued November 30, 2006.

Decided February 22, 2007.

ARGUED: Grace Y. Chung Becker, United States Department of Justice, Civil Rights Division, Washington, D.C., for Appellant. Christopher Scott Boynton, City Attorney's Office, Virginia Beach, Virginia, for Appellee. ON BRIEF: Wan J. Kim, Assistant Attorney General, Dennis J. Dimsey, Karl N. Gellert, United States Department of Justice, Civil Rights Division, Washington, D.C., for Appellant. Leslie L. Lilley, Mark D. Stiles, Andrew B. Pittman, City Attorney's Office, Virginia Beach, Virginia, for Appellee.

Before WIDENER and WILKINSON, Circuit Judges, and DAVID A. FABER, Chief United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge WIDENER and Judge FABER joined.

WILKINSON, Circuit Judge.

This appeal arises from an order by the district court quashing a subpoena duces tecum. The subpoena was issued by a federal grand jury to a City Police Department ("the Department") to obtain the records of the Department's internal investigation into a complaint filed against an officer. Given the particular circumstances of this case, the district court did not abuse its discretion in quashing the subpoena, and we now affirm its judgment.¹

I.

An individual arrested by the City Police Department filed a complaint with the Department, alleging that a particular officer used excessive force against him in the course of arrest. The complaint resulted in an investigation by the Department's internal affairs office. During the internal investigation, Department officials interviewed various officers, including the officer identified in the arrested individual's complaint.

It is Department policy that officers are required to comply fully with internal investigations as a condition of their employment. False testimony or other failure to comply may result in disciplinary action or dismissal. Officers who are questioned as part of an internal investigation are notified in writing that their responses may not be used against them in criminal proceedings. The Department's general written policy on internal investigations reiterates this guarantee and further states that material relating to internal investigations will be treated as confidential. The policy goes on to state, "This is not to imply that such files are not discoverable in legal proceedings."

The United States Attorney's Office and the Criminal Section of the Civil Rights Division of the United States Department of Justice undertook an investigation of the same incident to determine whether it constituted a civil rights violation under 18 U.S.C. § 242 (2000)(deprivation of rights under color of law). In connection with this investigation and at the United States' behest, a federal grand jury issued a subpoena duces tecum requiring the production of documents relating to the Department's internal investigation.

The City moved to quash the subpoena, claiming that compliance would be "unreasonable" pursuant to Federal Rule of Criminal Procedure 17(c) for two reasons. First, the City argued that compliance would destroy the confidentiality of the internal investigation and would thus severely undermine the Department's ability to conduct such investigations effectively. Second, the City contended that compliance would be inconsistent with the interviewed officers' Fifth Amendment rights against self-incrimination.

The United States responded that the interviewees enjoyed no reasonable expectation of protection against a subpoena and that any interest in confidentiality was satisfied by the fact that grand jury proceedings are secret. The United States further argued that compliance held no Fifth Amendment risks because of two safeguards against the use of self-incriminating testimony. First, all internal investigation materials would be screened by a "Garrity review team," so named for Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), which prohibited the use in criminal proceedings of governmental employees' self-incriminating statements obtained under threat of termination. The Garrity review team would screen the materials before they were given to the prosecutors and redact any potentially self-incriminating statements, as well as any material that relied upon such statements. The Garrity team members would play no role in any subsequent investigation or prosecution, and the material redacted by the team would never be seen by the prosecutors, much less by the grand jury.

Second, if an officer were to be indicted and believed that his own privileged statements were used to indict him, he would be entitled to a Kastigar hearing, at which the government would bear the burden of "prov[ing] that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony." Kastigar v. United States, 406 U.S. 441, 460, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

The United States furthermore asserted its own interest in obtaining the information and the grand jury's power to subpoena it. At the hearing on the City's motion to quash, the government noted that any false statements by officers in the course of the internal investigation might form the basis of an independent charge of obstruction of justice. The government also asserted that it required the internal investigation materials in order to "close . . . the file" on the complaint. Counsel for the United States stated there was "no expectation that [the case] will turn into a prosecutable offense" and that it was "99.9 percent certain" that the civil rights complaint was "a bunch of baloney."

The district court granted the City's motion to quash the subpoena. The court found that both the City and the United States asserted highly significant law enforcement interests with respect to the "`policing' of the police." United States v. Doe, 434 F.Supp.2d 377, 381 (E.D.Va.2006). The court found that the City established that compliance would pose substantial risks for confidentiality and Fifth Amendment interests, while the United States for its part could easily obtain the desired information by subpoenaing the interviewed officers directly, thus avoiding the risks of self-incrimination, the complexities of the Garrity review procedure, and the potential destruction of the Department's ability to investigate itself. While noting that the interests of the grand jury would as a general matter prevail, the court held that, in this particular instance, the City's asserted interests outweighed those of the United States, and thus compliance with the subpoena would be unreasonable under Rule 17(c). The United States appeals.

This court has jurisdiction to review a district court order quashing a subpoena pursuant to 18 U.S.C. § 3731 (Supp. 2002). See In re Grand Jury Subpoena, 175 F.3d 332, 336 (4th Cir.1999); United States v. (Under Seal), 745 F.2d 834, 835 n. 1 (4th Cir.1984).

We review the grant of a motion to quash a subpoena under Rule 17(c) for abuse of discretion. See United States v. Fowler, 932 F.2d 306, 311-12 (4th Cir. 1991); In re Grand Jury Subpoena: Subpoena Duces Tecum, 829 F.2d 1291, 1296 (4th Cir.1987). "A district court has abused its discretion if its decision is guided by erroneous legal principles or rests upon a clearly erroneous factual finding." Morris v. Wachovia Sec., Inc., 448 F.3d 268, 277 (4th Cir.2006) (internal quotation marks omitted).

II.

The grand jury is a unique institution within the criminal justice system. Belonging to no branch of government, the grand jury is a "constitutional fixture in its own right . . . serving as a kind of buffer or referee between the Government and the people." United States v. Williams, 504 U.S. 36, 47, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992) (internal quotation marks omitted). Its mission is to "inquire into all information that might possibly bear on its investigation until it has identified an offense or has satisfied itself that none has occurred." United States v. R. Enters., Inc., 498 U.S. 292, 297, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991).

Although the grand jury operates with great independence, "the powers of the grand jury are not unlimited and are subject to the supervision of a judge." Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). One such judicial limitation arises from Federal Rule of Criminal Procedure 17(c)(2), which provides that a district judge may quash or modify a subpoena duces tecum "if compliance would be unreasonable or oppressive."

Courts have recognized various ways in which a subpoena may be unreasonable or oppressive under Rule 17(c). Rule 17(c) offers a vehicle for a subpoenaed party to assert a constitutional, statutory, or common-law privilege. See Branzburg, 408 U.S. at 688, 92 S.Ct. 2646; see, e.g., In re Grand Jury Proceedings, 45 F.3d 343, 345 (9th Cir.1995); In re Grand Jury Proceedings: Subpoenas Duces Tecum, 827 F.2d 301, 305 (8th Cir.1987). In the absence of such a privilege, a subpoena may still be unreasonable or oppressive under Rule 17(c) if it is irrelevant, see R. Enters., 498 U.S. at 301, 111 S.Ct. 722; abusive or harassing, see In re Grand Jury Subpoena, 175 F.3d at 340; United States v. (Under Seal), 714 F.2d 347, 350 (4th Cir. 1983); overly vague, see United States v. Loe, 248 F.3d 449, 466 (5th Cir.2001); or excessively broad, see In re Grand Jury Proceedings, 601 F.2d 162, 165 (5th Cir. 1979). Additionally, some courts have recognized that Rule 17(c) enables district courts to quash a subpoena that intrudes gravely on significant interests outside of the scope of a recognized privilege, if compliance is likely to "entail consequences more serious than...