754 F.2d 154 (6th Cir. 1985), 84-3048, In re Grand Jury Proceedings (John Doe)

Docket Nº:84-3048.
Citation:754 F.2d 154
Case Date:January 28, 1985
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 154

754 F.2d 154 (6th Cir. 1985)



John DOE, Petitioner,


UNITED STATES of America, Respondent.

No. 84-3048.

United States Court of Appeals, Sixth Circuit

January 28, 1985

Argued Nov. 28, 1984.

Joshua R. Treem, argued, Schulman & Treem, P.A., Baltimore, Md., for petitioner.

David O. Bauer, Stephen Jigger, U.S. Dept. of Justice, Cleveland, Ohio, William C. Bryson, argued, Sp. Counsel, Organized Crime & Racketeering Section, U.S. Dept. of Justice, Washington, D.C., for respondent.

Before MARTIN, JONES and CONTIE, Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

John Doe appeals from the district court's order compelling Doe's attorney to respond to a subpoena duces tecum issued by a federal grand jury meeting in Cleveland, Ohio. Doe contends that the matter sought by the subpoena is protected by the attorney-client privilege. We affirm the district court's order.

In February 1983, a special grand jury issued a subpoena to Arnold Weiner, Doe's attorney. The subpoena required Weiner to appear before the grand jury to testify and to produce the following documents:

All records relating to the wire transfer of $61,625.00 from Metro Facilities, Amsterdam on or about August 17, 1978 to Melnicove, Kaufman & Weiner, account # 06 99 882, First National Bank of Maryland, Baltimore (main branch). These records should include, but not be limited to, those relating to receipt, classification, and/or disbursement of said funds.

Before Weiner was scheduled to appear to testify, Doe filed a motion to intervene in the proceedings and to quash the subpoena that had been served on Weiner. The district court conducted ex parte, in

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camera hearings at which both the government and Weiner made presentations regarding the subpoenaed materials.

Following the hearing, the court granted Doe's motion to intervene but denied the motion to quash the subpoena. In re Grand Jury Proceedings (John Doe), 575 F.Supp. 197 (N.D.Ohio 1983). Doe contended in the district court that once a client invokes the attorney-client privilege, the government must meet the three-part test of In re Grand Jury Proceedings (Schofield), 486 F.2d 85 (3d Cir.1973). Schofield requires the government to demonstrate by affidavit that: (1) the information sought is relevant to the investigation; (2) the investigation is within the jurisdiction of the grand jury; and (3) the information sought is not primarily for a purpose unrelated to the investigation. Schofield, 486 F.2d at 93. Although Schofield remains the law of the Third Circuit, other circuits have explicitly refused to adopt it. See In re Osterhoudt, 722 F.2d 591, 594 (9th Cir.1983) (per curiam); In re Slaughter, 694 F.2d 1258, 1260 (11th Cir.1982); In re Pantojas, 628 F.2d 701, 704-05 (1st Cir.1980); In re Walsh, 623 F.2d 489, 493 (7th Cir.), cert. denied, 449 U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291 (1980); In re Liberatore, 574 F.2d 78, 83 (2d Cir.1978); In re Grand Jury Proceedings (Guerrero), 567 F.2d 281, 283 (5th Cir.1978). Nevertheless, out of "an abundance of caution," the district court required the government to meet the Schofield requirements and found that they had, in fact, been met. John Doe, 575 F.Supp. at 200-01. The court then found that the subpoenaed material would be exempt from disclosure only if Doe could show that by answering particular questions or producing particular documents Weiner would reveal confidential communications with Doe or would implicate Doe in the very criminal activity that caused him to seek legal advice. Id. at 203-04. Because the propriety of non-disclosure of the materials could be determined only on the basis of particularized determinations, Weiner's blanket assertion of the attorney-client privilege and refusal to appear before the grand jury were improper. Id. at 204.

Subsequent to the district court's decision, we decided In re Grand Jury Subpoena 84-1-24# 1 (Battle), 748 F.2d 327 (6th Cir.1984). In Battle we refused to adopt the Schofield requirements. Instead, we held that the government need not make a showing that the information sought is minimally relevant to the grand jury investigation until the party who seeks to quash the subpoena makes a showing of irrelevancy or prosecutorial abuse. Id. at 330. Despite this holding, Doe argues that when a subpoena is directed to an attorney rather than a grand jury target, as in Battle, the government must demonstrate that the information sought could not be obtained from a source other than the attorney. We are not persuaded.

Doe cites three cases for the proposition that the government must demonstrate that the information sought is unavailable from sources other than an attorney when a client invokes the attorney-client privilege. Doe asserts that the court in In re Grand Jury Proceedings (Fine), 641 F.2d 199 (5th Cir.1981), required the government to demonstrate that it had reached a "dead end" before subpoenaing the attorney. The reference to the "dead end," however, was in the court's recital of the facts and was not incorporated in the court's legal analysis. Subsequent cases in the Eleventh Circuit, for which Fine is a binding precedent, have not required the government to establish that it has reached a "dead end" and have, in fact, refused to impose even the more modest requirements of Schofield. See In re Grand Jury Proceedings (Freeman), 708 F.2d 1571, 1575 (11th Cir.1983) (per curiam); In re Grand Jury Proceedings (Bowe), 694 F.2d 1256, 1258 (11th Cir.1982); In re Slaughter, 694 F.2d 1258, 1260 (11th Cir.1982).


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