Grand Jury Matters, In re, 84-1556

• Citation: 751 F.2d 13
• Decision Date: 19 December 1984
• Docket Number: No. 84-1556,84-1556
• Parties: In re GRAND JURY MATTERS, Appeal of UNITED STATES of America.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 13

751 F.2d 13

In re GRAND JURY MATTERS,

Appeal of UNITED STATES of America.

No. 84-1556.

United States Court of Appeals, First Circuit.

Argued Sept. 14, 1984.

Decided Dec. 19, 1984.

Robert J. Lynn, First Asst. U.S. Atty., Concord, N.H., with whom W. Stephen Thayer, III, U.S. Atty., Concord, N.H., was on brief, for appellant.

Charles R. Nesson, Cambridge, Mass., for appellees Nancy Gertner, Albert Cullen, and John Wall.

Robert A. Stein, Concord, N.H., with whom Steven M. Gordon, Gregory T. Martin, and Shaheen, Cappiello, Stein & Gordon, Concord, N.H., were on brief, for appellee Steven M. Gordon.

Richard McNamara, Manchester, N.H., with whom Kelly M. Bird and Wiggin & Nourie, Manchester, N.H., were on brief, for appellees New Hampshire Bar Association.

Harry C. Mezer, Boston, Mass., with whom Alan Ellis, Philadelphia, Pa., H. Jonathan Meyer, Manchester, N.H., John Reinstein, Andrew Good, Boston, Mass., were on brief, for amicus curiae National Ass'n of Criminal Defense Lawyers, New Hampshire Civil Liberties Union, Civil Liberties Union of Mass and Mass. Ass'n of Criminal Defense Lawyers.

Before CAMPBELL, Chief Judge, COWEN, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

LEVIN H. CAMPBELL, Chief Judge.

The United States appeals from an order of the United States District Court for the District of New Hampshire, 593 F.Supp. 103 granting motions to quash five federal grand jury subpoenas. These subpoenas had been issued to attorneys who, in state criminal prosecutions, were then serving as defense counsel for the same persons the federal grand jury was investigating.

The pertinent facts are few. Federal and state authorities conducted a joint investigation of Stephen Young, Benjamin Valenzuela, Robert Hollingworth, Antimo DiMatteo, and Alvin Karngher for alleged drug and tax offenses. In February 1984, all five men were indicted on state drug charges. Those charges have since been awaiting trial in the Rockingham County Superior Court.

Meanwhile, a federal grand jury was conducting its own investigation. On May 14, 1984, that grand jury issued subpoenas to attorneys Albert Cullen (defense attorney for Stephen Young in the state proceeding), Steven Gordon (defense attorney for Benjamin Valenzuela), Paul Hodes (defense attorney for Robert Hollingworth), John Wall (defense attorney for Antimo DiMatteo), and Nancy Gertner (defense attorney for Alvin Karngher). The subpoenas required these attorneys to appear before the federal grand jury accompanied by records concerning legal fees, expenses or other monies received by them or their law firms from or on behalf of their respective clients. ¹ Because Stephen Young allegedly headed the drug "organization," the grand jury's subpoena to his attorney, Albert Cullen, also required Cullen to appear and provide records of the dates, times, places, and attendees (but not the content) of any actual or proposed meetings or telephone conversations between Young and Cullen or employees of Cullen's firm, as well as any information concerning the transfer or other disposition of any funds received by Cullen or his firm from Young.

The attorneys moved in the district court to quash the subpoenas. The New Hampshire Bar Association, the National Association of Criminal Defense Lawyers, the New Hampshire Civil Liberties Union, the Civil Liberties Union of Massachusetts, and the Massachusetts Association of Criminal Defense Lawyers intervened as amici curiae in opposition to the enforcement of the subpoenas.

The district court held a closed evidentiary hearing on the attorneys' motion on July 2, 1984. The government stated that it did not suspect the attorneys of wrongdoing but needed the fee information to tie each client to a drug conspiracy by proving that the legal fees of each were paid by Young or his organization pursuant to pre-existing agreements between Young and his "recruits." The government also filed an in camera affidavit that described the nature of its investigation and the basis for the subpoenas in greater detail.

The attorneys argued that the information was protected by attorney-client privilege and work product immunity. They also contended that forced disclosure would violate their clients' fifth amendment privilege against self-incrimination and sixth amendment right to effective counsel. Finally, the attorneys argued that enforcement of the subpoenas would damage the criminal justice system in New Hampshire by undermining the defense bar and discouraging attorneys from undertaking criminal defense work.

The district court quashed the subpoenas, emphasizing the negative effect that it believed the subpoenas would have on the attorneys' ability to defend their clients in the pending state criminal action. The court expressed concern that forced disclosure would jeopardize the attorney-client relationship at a crucial point in the defense preparations. The court also found that "[t]he actions of the U.S. Attorney are without doubt harassing" and noted that enforcement of the subpoenas in this context would deter attorneys from following a career in criminal law because of the personal and professional traumas resulting from the United States Attorney's investigatory tactics.

I.

Although grand jury subpoenas are issued in the name of the district court, they are issued pro forma and in blank to anyone requesting them without prior court approval or control. Fed.R.Crim.P. 17(a). See also In re Special Grand Jury No. 81-1 (Harvey), 676 F.2d 1005, 1010 (4th Cir.), vacated on other grounds, 697 F.2d 112 (4th Cir.1982); In re Grand Jury Proceedings (Schofield), 486 F.2d 85, 90 (3d Cir.1973). These subpoenas are "in fact almost universally instrumentalities of the United States Attorney's office or of some other department of the executive branch." In re Grand Jury Proceedings (Schofield), 486 F.2d at 90.

Because this subpoena power may be abused, Fed.R.Crim.P. 17(c) gives the district court, on motion, the power to quash or modify a subpoena duces tecum "if compliance would be unreasonable or oppressive." ² As this court pointed out in In re Pantojas, 628 F.2d 701, 704-05 (1st Cir.1980), "[t]he practical responsibility for controlling grand jury excesses lies with the district court, on which the grand jury must rely for subpoena [enforcement] and contempt procedures." Id. at 705.

We review a district court decision to quash, or not quash, a grand jury subpoena, solely for abuse of discretion, with much deference being owed to the lower court's authority. Margoles v. United States, 402 F.2d 450, 451-52 (7th Cir.1968). See also 2 C. Wright, Federal Practice & Procedure Sec. 275 (2d ed. 1982) ("the trial court has so much discretion in these matters that reversal is unlikely") (footnote omitted). Cf. United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). ³ We turn now to whether the district court acted so arbitrarily here as to exceed its very broad, but not limitless, discretion in this area.

II.

In evaluating the district court's exercise of discretion, we begin with the basic principle that the grand jury has the right and duty to procure every man's evidence. United States v. Dionisio, 410 U.S. 1, 9-10, 93 S.Ct. 764, 769-70, 35 L.Ed.2d 67 (1973); In re Lopreato, 511 F.2d 1150, 1152 (1st Cir.1975). As the Supreme Court explained,

Because its task is to inquire into the existence of possible criminal conduct and to return only well-founded indictments, [the grand jury's] investigative powers are necessarily broad. "It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime." Blair v. United States, 250 U.S. 273, 282 [39 S.Ct. 468, 471, 63 L.Ed. 979] (1919). Hence, the grand jury's authority to subpoena witnesses is not only historic, id., at 279-281 , but essential to its task. Although the powers of the grand jury are not unlimited and are subject to the supervision of a judge, the longstanding principle that "the public ... has a right to every man's evidence," except for those persons protected by a constitutional, common-law, or statutory privilege, United States v. Bryan, 339 U.S. at 331 [70 S.Ct. 724 at 730, 94 L.Ed. 884 (1950) ], Blackmer v. United States, 284 U.S. 421, 438 [52 S.Ct. 252, 255, 76 L.Ed. 375] (1932); 8 J. Wigmore, Evidence Sec. 2192 (McNaughton rev. 1961), is particularly applicable to grand jury proceedings.

Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972) (footnote omitted).

The Court's above language makes two points relevant here: first, the grand jury's right to every man's evidence is substantively limited only by express "constitutional, common-law or statutory privilege[s]"; second, the grand jury's "not unlimited" powers are subject to judges' supervisory powers, which, under Fed.R.Crim.P. 17(c), include the power promptly to "quash or modify the subpoena if compliance would be unreasonable or oppressive."

We do not see this appeal as involving the first matter, i.e., privilege. Although certain of the appellees and amici have argued that the subpoenaed materials are protected by express privileges, the district court did not quash the subpoenas on the ground of a particular privilege. ⁴ Rather the court acted from concern over "the crucial factual situation present here": "Defendants have cases pending for trial in the state court[;] the same defendants are under investigation in this court [sic]." The court's repeated references to the "very important premise ... that the actions are pending in a New Hampshire State Court," and the cases upon which it relied, make clear that the court below quashed the subpoenas because of the effect the timing of the subpoenas could have on the...