751 F.2d 13 (1st Cir. 1984), 84-1556, In re Grand Jury Matters

Docket Nº:84-1556.
Citation:751 F.2d 13
Party Name:In re GRAND JURY MATTERS, Appeal of UNITED STATES of America.
Case Date:December 19, 1984
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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751 F.2d 13 (1st Cir. 1984)


Appeal of UNITED STATES of America.

No. 84-1556.

United States Court of Appeals, First Circuit

December 19, 1984

Argued Sept. 14, 1984.

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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.

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and Mass. Ass'n of Criminal Defense Lawyers.

Before CAMPBELL, Chief Judge, COWEN, [*] Senior Circuit Judge, and BREYER, Circuit 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

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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.


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...

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