781 F.2d 238 (2nd Cir. 1985), 638, In re Grand Jury Subpoena Served Upon Doe

Docket Nº:638, Docket 84-6319.
Citation:781 F.2d 238
Party Name:Fed. R. Evid. Serv. 1367 In re GRAND JURY SUBPOENA SERVED UPON John DOE, Esq. Richard ROE, Intervenor-Appellant, v. UNITED STATES of America, Appellee.
Case Date:June 13, 1985
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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781 F.2d 238 (2nd Cir. 1985)

Fed. R. Evid. Serv. 1367

In re GRAND JURY SUBPOENA SERVED UPON John DOE, Esq.

Richard ROE, Intervenor-Appellant,

v.

UNITED STATES of America, Appellee.

No. 638, Docket 84-6319.

United States Court of Appeals, Second Circuit

June 13, 1985.

Originally Argued Before Panel Dec. 13, 1984; April 1, 1985

Application for stays pending certiorari denied by Justice Marshall on Feb. 18, 1986 and by Justice Brennon on Feb. 24, 1986.

Petition for Rehearing Submitted to Panel May 24, 1985

Petition for Rehearing En Banc Submitted to En Banc Court Sept. 6, 1985

Argued Oct. 3, 1985

Decided Jan. 9, 1986

Certiorari Denied April 7, 1986.

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Ronald E. DePetris, Asst. U.S. Atty., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., L. Kevin Sheridan and Mary McGowan Davis, Asst. U.S. Attys., Brooklyn, N.Y.; Edward A. McDonald, Attorney-in-Charge, U.S. Dept. of Justice, Organized Crime Strike Force, E.D.N.Y., Brooklyn, N.Y.; Michael A. Guadagno, Sp. Atty., Organized Crime Strike Force, Brooklyn, N.Y., on the brief) for United States, appellee.

Mark M. Baker, New York City (John H. Jacobs, New York City, on the brief) for intervenor-appellant.

Richard Emery and Ann Detiere, New York City, submitted a brief for New York Civil Liberties Union, amicus curiae.

Herman Kaufman and Austin V. Campriello, New York City, submitted a brief for New York Criminal Bar Ass'n, amicus curiae.

George H. Newman, Philadelphia, Pa., for Nat. Ass'n of Criminal Defense Lawyers and New Jersey Ass'n of Criminal Defense Lawyers, submitted a joint brief amicus curiae.

Gerald B. Lefcourt and John H. Doyle, III, New York City, for Ass'n of the Bar of the City of New York; and Mordecai Rosenfeld, New York City, for New York County Lawyers Ass'n, submitted a joint brief amicus curiae.

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Before FEINBERG, Chief Judge, OAKES, TIMBERS, MESKILL, NEWMAN, KEARSE, CARDAMONE, PIERCE, WINTER, PRATT and MINER, Circuit Judges. [*]

TIMBERS, Senior Circuit Judge (with whom OAKES, MESKILL, NEWMAN, KEARSE, PIERCE, WINTER, PRATT and MINER, Circuit Judges, concur):

We have before us for en banc reconsideration an appeal from an order entered October 22, 1984 in the Eastern District of New York, Eugene H. Nickerson, District Judge, which denied a motion to quash a grand jury subpoena duces tecum.

A panel of this Court on April 1, 1985, by a divided vote, 759 F.2d 968, reversed the order of the district court and remanded the case for further proceedings.

For the reasons set forth below, we vacate the judgment and opinion of the panel and we affirm the order of the district court.

I. FACTS AND PRIOR PROCEEDINGS

A grand jury in the Eastern District of New York is investigating the activities of the Colombo organized crime family and a faction of that enterprise known as the "Anthony Colombo crew". Under investigation are a number of serious offenses, including murder, racketeering, narcotics trafficking, robbery, gambling, extortion, interstate transportation of stolen property and other federal crimes. On September 5, 1984, in connection with this ongoing investigation, a subpoena duces tecum was served on Barry I. Slotnick, attorney for Anthony Colombo, intervenor-appellant. The subpoena commanded Slotnick to appear before the grand jury and to produce:

"any and all records of fees, monies, property or other things of value received, accepted, transferred or held by BARRY SLOTNICK or by any associate of BARRY SLOTNICK on his behalf, from, on account of, or on behalf of [twenty-one named individuals including Anthony Colombo].

These records are to include, but not be limited to, records of fees, monies, property or other things of value received, accepted, transferred to or held by BARRY SLOTNICK or by any associate of BARRY SLOTNICK on his behalf in connection with [nine enumerated criminal proceedings]."

The grand jury seeks to determine whether Colombo paid for, or otherwise arranged for, the legal representation of members of his crew. Evidence of such benefactor payments made to Slotnick might establish Colombo as the head of "an enterprise", as that term is defined in the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1961(4) (1982).

At oral argument before this en banc court, the government stated that the subpoena duces tecum, although admittedly broad on its face, will be limited specifically to benefactor payments made by Colombo on behalf of his "crew" members. The subpoena, according to the government, will not encompass Colombo's payments to Slotnick for his own representation in the past, nor for Colombo's representation in connection with other outstanding indictments. Thus, the scope of the subpoena is limited to the government's inquiry as to a possible RICO violation.

Slotnick moved to quash the grand jury subpoena pursuant to Fed.R.Crim.P. 17(c), asserting that the government had failed to establish the relevance of, or need for, the information. Judge Nickerson denied the motion to quash. Colombo was granted intervenor status to appeal. In a 2-1 decision, a panel of this Court reversed the district court.

Subsequent to the panel decision, Colombo and members of his crew were indicted on charges of conspiracy to violate the narcotics laws, 21 U.S.C. Sec. 846 (1982); engaging in a continuing criminal enterprise, 21 U.S.C. Sec. 848 (1982); participating in multiple violations of the Hobbs and Travel Acts, 18 U.S.C. Secs. 1951, 1952 (1982); and

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transporting stolen property interstate, 18 U.S.C. Sec. 2314 (1982). Colombo was not indicted for the RICO violation in connection with which the grand jury seeks the information called for in the subpoena duces tecum.

Colombo claims that the appearance and testimony before a grand jury of his attorney, Slotnick, who has represented Colombo for nearly eighteen years, will lead, inevitably, to the disqualification of the attorney. A grand jury appearance, according to Colombo, would undermine this long-established relationship of confidence between Colombo and Slotnick. Thus, Colombo claims that his Sixth Amendment rights are implicated; and that, absent the government's demonstration of need for the information and that the attorney is the only source of that information, the subpoena should be quashed. Colombo also claims that, since he now has been indicted on some criminal charges and his Sixth Amendment rights have attached as to them, the subpoena constitutes an impairment of such rights and an abuse of the grand jury process.

In the balance of this opinion, we shall address each of these claims asserted by Colombo. We shall discuss, first, the pre-indictment issue and, second, the post-indictment issue.

II. PRE-INDICTMENT ISSUE

Turning to appellant's claims urged upon this en banc court, we shall focus first on the questions presented to the district court in October 1984, i.e., during the pre-indictment period. The question as to whether the district court abused its discretion in denying the motion to quash the subpoena prior to indictment is not moot. Whether the government must establish a need for the information, in addition to its relevance, before a subpoena served on the attorney for an unindicted target of a grand jury investigation can be enforced, is a question that is "capable of repetition yet evades review". See In Re Special April 1977 Grand Jury, 581 F.2d 589, 591 (7 Cir.), cert. denied, 439 U.S. 1046 (1978); In Re Grand Jury Proceedings (Freeman), 708 F.2d 1571, 1573 (1 Cir.1983). Grand jury investigations must proceed expeditiously. The length of time required for appellate review often is protracted. Frequently indictments will be returned before the appellate process is completed, as occurred here. The instant subpoena was served on Slotnick on September 5, 1984, more than a year ago.

Colombo asserts that compliance with the subpoena will chill the relationship between his attorney and himself and thus violate his Sixth Amendment right to assistance of counsel and his Fifth Amendment due process rights. Colombo therefore argues that, before this subpoena can be enforced, the government must demonstrate both a compelling or reasonable need for the information regarding benefactor payments and that his attorney is the only source of that information. Colombo contends that the traditional standard of relevance, see In Re Liberatore, 574 F.2d 78, 82-83 (2 Cir.1978), is not adequate to protect his "implicated" right to counsel. Colombo further contends that Fed.R.Crim.P. 17(c), which empowers a district court to quash a subpoena where "compliance would be unreasonable or oppressive", is not sufficient protection.

For the reasons stated below, we find Colombo's essential claims referred to above to be without merit. We decline to impose upon the government the additional requirement that it demonstrate a need for the information. At the pre-indictment stage, appellant's Sixth Amendment rights have not attached; nor at that stage, absent interrogation of a custodial target himself, are there additional rights grounded in the due process clauses. The fee information which the government seeks is not privileged. The appropriate time to balance the interests of the government and Colombo's right to counsel is at the pretrial stage, not at the grand jury stage.

A.

There is no constitutional basis for imposing additional requirements for the

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government to meet before the grand jury subpoena can be enforced in this case. The Sixth Amendment does not require a preliminary showing of need before enforcing a grand jury subpoena served...

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