584 F.3d 175 (4th Cir. 2007), 06-1572, In re Grand Jury Subpoena John Doe, No. 05GJ1318

Docket Nº:06-1572.
Citation:584 F.3d 175
Opinion Judge:KING, Circuit Judge:
Party Name:In re GRAND JURY SUBPOENA: JOHN DOE, NO. 05GJ1318. v. Under Seal, Intervenor-Appellant. United States of America, Movant-Appellee, Under Seal, Amicus Curiae.
Attorney:Amy Berman Jackson, Trout Cacheris, P.L.L.C, Washington, D.C., for Appellant. Patty Merkamp Stemler, United States Department of Justice, Criminal Division, Appellate Section, Washington, D.C., for Appellee. Robert P. Trout, Gloria B. Solomon, Trout Cacheris, P.L.L.C, Washington, DC, for Appellan...
Judge Panel:Before KING, GREGORY, and SHEDD, Circuit Judges. Affirmed by published opinion. Judge KING wrote the majority opinion, in which Judge SHEDD joined. Judge GREGORY wrote an opinion concurring in the judgment. GREGORY, Circuit Judge, concurring in the judgment:
Case Date:March 07, 2007
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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584 F.3d 175 (4th Cir. 2007)

In re GRAND JURY SUBPOENA: JOHN DOE, NO. 05GJ1318.

United States of America, Movant-Appellee,

v.

Under Seal, Intervenor-Appellant.

Under Seal, Amicus Curiae.

No. 06-1572.

United States Court of Appeals, Fourth Circuit.

March 7, 2007

Argued: Sept. 18, 2006.

Opinion Unsealed: Oct. 14, 2009.

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[Copyrighted Material Omitted]

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ARGUED:

Amy Berman Jackson, Trout Cacheris, P.L.L.C, Washington, D.C., for Appellant.

Patty Merkamp Stemler, United States Department of Justice, Criminal Division, Appellate Section, Washington, D.C., for Appellee.

ON BRIEF:

Robert P. Trout, Gloria B. Solomon, Trout Cacheris, P.L.L.C, Washington, DC, for Appellant.

Jeffrey P. Singdahlsen, United States Department Of Justice, Criminal Division, Appellate Section, Washington, D.C.; Kenneth E. Melson, Acting United States Attorney, Mark D. Lytle, Rebeca H. Bellows, Assistant United States Attorney, Michael K. Atkinson, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

Geraldine R. Gennet, General Counsel, Kerry W. Kircher, Deputy General Counsel, David Plotinsky, Assistant Counsel, U.S. House of Representatives, Office of General Counsel, Washington, D.C., for Amicus Curiae.

Before KING, GREGORY, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the majority opinion, in which Judge SHEDD joined. Judge GREGORY wrote an opinion concurring in the judgment.

OPINION

KING, Circuit Judge:

This appeal is taken by a sitting Congressman (the " Congressman" ), who challenges the district court's refusal to quash a grand jury subpoena duces tecum seeking documents from his Chief of Staff (" Doe" ).1 See In re Grand Jury Subpoena Duces Tecum, John Doe No. 05GJ1318 (Under Seal), No. 1:05dm401 (E.D.Va. May 4, 2006) (the " Order" ).2 The Congressman contends that the court erred in declining to recognize his Fifth Amendment privilege against production of the requested documents by Doe, and in entering its Order compelling Doe to produce subpoenaed documents to the grand jury. In support thereof, the Congressman maintains that at all relevant times he retained possession of the documents at issue, and that he is entitled to interpose his Fifth

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Amendment privilege to bar their production. As explained below, we affirm the district court.

I.

A.

The facts of this case were largely uncontested, and all pertinent factual disputes were resolved by the district court.3 On August 3, 2005, two separate grand jury subpoenas duces tecum were issued in the Eastern District of Virginia, each seeking records from the office of the Congressman. The first of the two subpoenas, directed to " [the Congressman], in his official capacity as Custodian of Records for [the Congressman]'s Congressional Office" was served on the Congressman himself (the " Custodian Subpoena" ). The second subpoena was directed to his Chief of Staff, as " [Doe], Chief of Staff, [the Congressman]'s Congressional Office" and was served on Doe (the " Doe Subpoena" ).4 These subpoenas were materially identical and requested production of ten categories of documents generated or retained by the Congressman's office relating to his official duties. After the subpoenas were served, Doe and two other staff members gathered the documents that they believed responsive to the Custodian Subpoena.5 They did so at the Congressman's direction, as communicated to them through his private counsel and the General Counsel of the House of Representatives (" House Counsel" ).

B.

On August 23, 2005, House Counsel represented to the United States Attorney that the potentially responsive documents were being identified and gathered by the Congressman's staff (the " Documents" ).6 In response, the United States Attorney expressed concern to House Counsel about possible copying of the Documents and emphasized the necessity of maintaining their integrity and security. The parties disagree on whether the United States Attorney requested that the Congressman not be provided with the " original"

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set of Documents,7 but they agree that the United States Attorney suggested that his security and integrity concern could be alleviated by " Bates-numbering" the Documents prior to any of them being provided to the Congressman's counsel. See Stipulated Facts ¶ 3.8 House Counsel rejected that course of action and made a single copy of the Documents, which was delivered to the Congressman's counsel. See id. ¶¶ 3, 4.

On or about September 16, 2005, the original set of Documents was placed in a locked cabinet in the Chief of Staff's office, because Doe was the only member of the staff-other than the Congressman himself-with an office cabinet that could be locked and secured.9 House Counsel then notified the United States Attorney that the Documents had been secured and were being maintained in Doe's locked cabinet. On September 28, 2005, the United States Attorney interviewed Doe on that point, and she confirmed that the Documents had been placed in the locked cabinet in the Chief of Staff's office. At the conclusion of the interview, Doe was served with a subpoena to testify before the grand jury, returnable on October 6, 2005 (the " Testimonial Subpoena" ). 10

C.

On October 6, 2005, Doe testified before the grand jury pursuant to the Testimonial Subpoena of September 27, 2005. During her testimony, she described her responsibilities as Chief of Staff as " [o]verall administrative responsibility for the office, human resource responsibility, and sort of overall direction for legislative strategy." J.A. 164. Doe was questioned about her role in identifying, gathering, and securing the Documents, and she indicated that, as Chief of Staff, she had been tasked with the responsibility of identifying and gathering them. In so doing, she ascertained that two staff members, in addition to herself, had material knowledge of the Documents. Those staff members-a legislative assistant (" Staff Member 2" ) and a Deputy Chief of Staff, described as an office manager and executive secretary (" Staff Member 3" )-were thus assigned to assist Doe in identifying and gathering the Documents. The Documents were identified and gathered from three primary sources: (1) the Congressman's private office, computer, and email account (the " Congressman's Materials" ); (2) Doe's files and computers (the " Doe Materials" ); and (3) the files and computers of Staff Members 2 and 3 (the " Staff Materials" ). The materials from these sources were identified, gathered, and placed in the locked cabinet in the Chief of Staff's office. Doe and Staff Member 3 were the only persons who knew where Doe kept the key to the locked cabinet, and they were thus the only persons with access to

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the Documents. The Congressman had no role in determining whether any of the Documents were responsive to either the Custodian Subpoena or the Doe Subpoena. He did not participate in identifying, gathering, copying, or securing the Documents, and none of the materials examined or reviewed included his private papers. According to Doe, the materials reviewed, as well as the Documents themselves, are official documents of the congressional office.

D.

On October 21, 2005, House Counsel, representing Doe in her official capacity, notified the United States Attorney that she objected to the Doe Subpoena's request for documents from the Congressman's office. This objection rested on two grounds: (1) the Documents sought by the Doe Subpoena belonged to the Congressman; and (2) Doe was not the custodian of the Congressman's records and had no authority to release or produce them to the grand jury. As a result, the United States Attorney, on November 14, 2005, filed a motion in the district court seeking a compulsion order on the Doe Subpoena (the "Motion to Compel" ). That same day, House Counsel informed the United States Attorney that Doe would be leaving her employment with the Congressman four days hence, on November 18, 2005. House Counsel and the United States Attorney then discussed whether the Documents-already secured in Doe's locked cabinet-should be moved because of her imminent departure. House Counsel took the position that Doe should simply transfer the key to the locked cabinet to Staff Member 3, without removing the Documents. In making this request, House Counsel maintained that (1) the Documents were responsive to the Custodian Subpoena and not the Doe Subpoena; (2) Doe's involvement with the Documents was " minimal," as Staff Members 2 and 3 had identified and gathered most of them; (3) the Documents had been locked in Doe's cabinet only " as a courtesy response" to the United States Attorney's integrity and security concerns; and (4) even if Doe was the custodian of the Congressman's records, her status as such would cease when her employment as the Congressman's Chief of Staff terminated.

On November 17, 2005, the United States Attorney filed in the district court a " Motion to Preliminarily Secure Documents Responsive to Grand Jury Subpoena Pending Judicial Determination" (the " Motion to Secure" ), seeking to compel the transfer of the Documents to the custody of the court's Clerk prior to Doe's departure (the next day) from the Congressman's office. Doe promptly filed a memorandum in opposition to the Motion to Secure, and the court conducted an immediate hearing on the matter. At this hearing, Doe and the United States Attorney agreed: (1) the Documents would be transferred to and held by House Counsel; and (2) Doe and House Counsel would not contend, in response to the pending Motion to Compel, that Doe's possessory...

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