In re Grand Jury Matters

Decision Date05 July 1984
Docket NumberNo. C84-338,C84-374-L.,C84-339,C84-346,C84-347,C84-338
Citation593 F. Supp. 103
PartiesIn re GRAND JURY MATTERS.
CourtU.S. District Court — District of New Hampshire

W. Hunt Dumont, U.S. Atty. by Robert J. Lynn, Asst. U.S. Atty., Concord, N.H., for plaintiffs.

Steven M. Gordon, Concord, N.H., Wiggin & Nourie by Richard B. McNamara, Manchester, N.H., Ellis, Fogelnest & Newman, P.C. by Alan Ellis, Philadelphia, Pa., Harry C. Mezer, Albert F. Cullen, Jr., Cullen & Wall, Boston, Mass., Backus, Shea & Meyer by H. Jonathan Meyer, Manchester, N.H., John Reinstein, Andrew Good, John Wall, Silverglate, Gertner, Baker & Fine by Judith H. Mizner, Boston, Mass., for defendants.

James D. Forsyth, II, Manchester, N.H., for S. Gordon.

Charles Nesson, Cambridge, Mass., for Wall and Cullen.

Ray Raimo, Manchester, N.H., for Hodes.

ORDER ON MOTION TO QUASH SUBPOENA

LOUGHLIN, District Judge.

On May 15, 1984 Attorney Paul W. Hodes, counsel for Robert Hollingworth, a defendant in the Rockingham County Superior Court and Attorney Steven M. Gordon, counsel for Benjamin Valenzuela, also a defendant in Rockingham County Superior Court, moved to quash subpoenas served upon them to appear before the Federal Grand Jury for the District of New Hampshire.

Hodes was served at his home at approximately 9:00 P.M.

An in camera hearing was held May 15, 1984 in chambers and an agreement was reached to hold the matter in abeyance pending a date certain for a hearing.

Subsequently the issue of subpoenas was further exacerbated by additional subpoenas being served upon other attorneys in the Rockingham County cases, who also sought to quash subpoenas served upon them to appear before the Federal Grand Jury for the District of New Hampshire.

Grand jury subpoenas were issued to Attorneys Albert Cullen, John Wall and Nancy Gertner.

The subpoenas ordered the recipients to have with them when they appeared before the Grand Jury

any and all records concerning legal fees, expenses, and any and all other monies paid to or received by you or your law firm by or on behalf of _____, including but not limited to:
1. ledgers showing date, amount, form (e.g. cash, check, etc.) and source of any monies received;
2. copies of deposit tickets, cancelled checks and all other backup documentation for all monies received;
3. retainer agreements; and
4. copies of all billings and/or charge or expense invoices or advices.

Attorney Gertner is counsel for Alvin Kanigher, Attorney Cullen for Stephen Young and Attorney Wall for Antimo DiMatteo. Kanigher, Young and DiMatteo are also co-defendants in the Rockingham County Superior Court cases.

Additionally, Attorney Cullen is requested to provide testimony and records pertaining to the dates, times and places (but not the content) of any meetings or telephone conversations between Young and his law firm, as well as information concerning the transfer or other disposition of any funds received by him or his firm from Young.

In the United States Attorney's memorandum of law in opposition to motions to quash he candidly admits,

A federal grand jury for the District of New Hampshire is conducting an investigation of federal drug and tax offenses allegedly committed by Stephen D. Young, Antimo DiMatteo, Benjamin Valenzuela, Alvin Kanigher, Robert Hollingworth and others.

The actions of the U.S. Attorney have elicited a ululation of protest and surprise from the New Hampshire Bar Association, National Association of Criminal Defense Lawyers, New Hampshire Civil Liberties Union, Civil Liberties Union of Massachusetts and the Massachusetts Association of Criminal Defense Lawyers, all allowed to file as intervenors in this action.

As heretofore stated, all defendants have been indicted as of February 7, 1984 in Rockingham County and probably will not be tried prior to the late fall or early winter of 1984.

A very important premise is that the actions are pending in a New Hampshire State Court and under investigation in the United States Federal Court for the District of New Hampshire.

In Re Terkeltoub, 256 F.Supp. 683 (S.D.New York, 1966) Terkeltoub, an attorney was called before a grand jury concerning a charge of perjury against his client before another grand jury. A conversation which occurred in a restaurant involving Terkeltoub, his client and a third individual was the focus of the inquiry.

Judge Frankel in a cogent, erudite opinion at length quoted the following.

On his appearance before the grand jury, Mr. Terkeltoub was asked questions (as the Government's Memorandum accurately summarizes them) "as to his alleged meeting, in the company of his client, with a third party, Tony Vone — the fact of such a meeting, the place, its duration, its initiation and purpose and the conversation which took place."
Mr. Terkeltoub asserted that answers by him to these questions would effect a deprivation of his client's rights to due process under the Fifth Amendment and to the effective assistance of counsel under the Sixth. Amplifying this view, he said: "If I am told by the Court that I am not breaking a professional confidence and privilege, then I will answer those questions providing there is nothing personal insofar as I am concerned."
It is common ground that this refusal to answer is not based upon the traditional attorney-client privilege. Here, then as in Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947), there is no necessity "to delineate the content and scope of that privilege as recognized in the federal courts."
Elimination of that privilege simplifies the problem, but does not make it simple. On the one hand, there is the heavy weight of history and public need commanding that the grand jury's investigations be as unfettered as possible. See, e.g., United States v. Thompson, 251 U.S. 407, 413-415, 40 S.Ct. 289 291-292 64 L.Ed. 333 (1920). And the Government comes here with the laudable purpose of guarding against suspected attacks on the integrity of the judicial process itself. Cf. Massiah v. United States, 377 U.S. 201, 207, 84 S.Ct. 1199 1203 12 L.Ed.2d 246 (1964); Caldwell v. United States, 92 U.S.App.D.C. 355, 205 F.2d 879, 881 (1953), cert. denied 349 U.S. 930, 75 S.Ct. 773, 99 L.Ed. 1260 (1955). On the other hand, the disclosures now demanded touch a vital center in the administration of criminal justice, the lawyer's work in investigating and preparing the defense of a criminal charge. Appraising these interests in the circumstances now presented, the court concludes that the attorney was not only entitled, but probably required, to withhold answers to the grand jury's questions.
In explaining this conclusion, it bears emphasis that while the witness before us is a lawyer, the crucial interests at stake belong to the whole community. As a seasoned trial lawyer and Justice said, "It too often is overlooked that the lawyer and the law office are indispensable parts of our administration of justice. * * * The welfare and tone of the legal profession is therefore of prime consequence to society, which would feel the consequences" of a practice impairing the lawyer's effective representation of his client. Hickman v. Taylor, supra, 329 U.S. at 514-515, 67 S.Ct. at 395 (Jackson, J., concurring).
In the same opinion, Mr. Justice Jackson said (id. at 5127, 67 S.Ct. at 396):
"Every lawyer dislikes to take the witness stand and will do so only for grave reasons. This is partly because it is not his role; he is almost invariably a poor witness. But he steps out of professional character to do it. He regrets it; the profession discourages it. But the practice advocated here is one which would not force him to be a
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  • Whitehouse v. U.S. Dist. Court for Dist. of Rhode Island
    • United States
    • U.S. Court of Appeals — First Circuit
    • 8 Diciembre 1994
    ...also noted the potential for abusive use of the attorney-subpoena. Klubock I, 832 F.2d at 653-54. See also In re Grand Jury Matters (Hodes and Gordon), 593 F.Supp. 103, 106 (D.N.H.) (quashing subpoenas and characterizing actions of U.S. Attorney in serving subpoenas on counsel as "without d......
  • U.S. v. Klubock, 86-1413
    • United States
    • U.S. Court of Appeals — First Circuit
    • 10 Octubre 1986
    ...circuit litigation, the possibility for improper use of attorney subpoenas in a PF 15 context are not far-fetched. See In re Grand Jury Matters, 593 F.Supp. 103, (D.N.H.), aff'd, 751 F.2d 13 (1st Cir.1984) (subpoenas to uncover fee arrangements between attorneys and their clients pending tr......
  • In re Grand Jury Subpoena For Attorney
    • United States
    • U.S. District Court — Southern District of Texas
    • 31 Octubre 1989
    ...petitioners are involved in pending INS proceedings on behalf of their clients, is unreasonable and oppressive"); In re Grand Jury Matters, 593 F.Supp. 103, 105 (D.N.H.) (stating that a "very important premise is that the actions are pending in a New Hampshire state court and under investig......
  • Grand Jury Matters, In re, 84-1556
    • United States
    • U.S. Court of Appeals — First Circuit
    • 19 Diciembre 1984
  • Request a trial to view additional results

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