Grand Jury Proceedings, In re, s. 86-1129

• Citation: 814 F.2d 61
• Decision Date: 10 October 1986
• Docket Number: 86-1169,Nos. 86-1129,s. 86-1129
• Parties: In re GRAND JURY PROCEEDINGS. Appeal of Hilton FERNANDEZ DIAMANTE. In re GRAND JURY PROCEEDINGS. Appeal of Elias Samuel Castro RAMOS. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 61

814 F.2d 61

In re GRAND JURY PROCEEDINGS.

Appeal of Hilton FERNANDEZ DIAMANTE.

In re GRAND JURY PROCEEDINGS.

Appeal of Elias Samuel Castro RAMOS.

Nos. 86-1129, 86-1169.

United States Court of Appeals,

First Circuit.

Heard Oct. 10, 1986.

Decided March 25, 1987.

Judith Berkan, Santurce, P.R., for appellants.

H. Manuel Hernandez, San Juan, P.R., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., and Roberto Moreno, Asst. U.S. Atty., San Juan, P.R., were on brief, for U.S.

Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges.

BOWNES, Circuit Judge.

Hilton Fernandez Diamante (Fernandez) and Elias Samuel Castro Ramos (Castro) appeal from the denial of their motions in the United States District Court for the District of Puerto Rico challenging the manner in which the prosecutors have been conducting a federal grand jury investigation. The two substantive issues in this appeal are: (1) whether a letter sent to recipients of a grand jury subpoena duces tecum violated the provisions of Federal Rule of Criminal Procedure 6(e)(2) governing the limits of grand jury secrecy; and (2) whether the purpose of the grand jury investigation is the improper gathering of evidence for the prosecution of a case for which indictments have already issued in Connecticut, United States v. Gerena, Cr. Case No. 85-50 (TEC) (D.Conn.). In addition, there is the threshold issue of the standing of appellants to challenge the government's conduct of the Puerto Rico grand jury investigation.

I. PROCEEDINGS BELOW

A. The Connecticut Criminal Case

In United States v. Gerena, appellants were among a group of people indicted for their participation in a bank robbery in 1983 at a Wells Fargo depot in Hartford, Connecticut. The indictment charged, inter alia, that Fernandez and Castro aided in the transport of money and of another participant in the robbery to Mexico and Cuba.

Fernandez was arrested in Puerto Rico in August, 1985. After his arrest, he was removed to Connecticut where a bail hearing was held. During the hearing, the government argued that there was a risk that Fernandez would flee, in view of his previous travel history and his extensive international contacts. The magistrate's order, providing for detention without bail, was based on this risk of flight. The magistrate declared that the government had not presented sufficient evidence to justify the denial of bail on any danger to the community posed by Fernandez. Fernandez was found to be a member of the Macheteros, an organization alleged by the Connecticut indictment to be committed to achieving the independence of Puerto Rico by the use of force and to "the establishment of a Socialist-Communist form of government." The magistrate stated, however, that although "some evidence" had been presented connecting the defendant to the Connecticut robbery, its "weight" was "not conclusive." The risk of flight was the basis for the district court's affirmance of the magistrate's denial of bail.

B. The Puerto Rico Grand Jury Investigation

According to the government, a federal grand jury in Puerto Rico has been inquiring, "for a number of years," into the activities of "clandestine Puerto Rican organizations." Government's Brief at 3. On November 18, 1985, the grand jury issued a subpoena duces tecum to Viajes Antillas, a Puerto Rico travel agency. The subpoena requested the travel agency to submit to the grand jury "any and all records pertaining to Hilton Fernandez Diamante."

The subpoena was accompanied by a letter from Roberto Moreno, Assistant United States Attorney for Puerto Rico, Special Prosecutions Unit. The letter's final paragraph read:

You are not to disclose the existence of this subpoena or the fact of your compliance for a period of 90 days from the date of the subpoena. Any such disclosure could seriously impede the investigation being conducted and, thereby, interfere with the enforcement of the federal criminal law.

Appellants objected to the terms both of the subpoena and of the accompanying letter; they also raised more general claims concerning the grand jury investigation. The government contended that appellants had no standing to challenge a subpoena issued to a third party. It also claimed that the more general challenges to the investigation failed to overcome the presumption of regularity attaching to grand jury proceedings.

Appellants attacked the language of the subpoena by claiming that it was facially overbroad in violation of the fourth amendment. They claimed that documents "pertaining to" Fernandez could include materials concerning the travel of such individuals as Fernandez' attorneys, potential witnesses in the Connecticut case and other associates of Fernandez. The subpoena's request for all documents "pertaining to" Fernandez, appellants charged, could result in intimidation and interference with the preparation of the defense for the Connecticut trial. They argued that the breadth of the subpoena's request thereby exceeded the information necessary and proper for the investigation. See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209, 66 S.Ct. 494, 505, 90 L.Ed. 614 (1946).

Appellants claimed, in addition, that the letter accompanying the subpoena imposed an "obligation of secrecy" in violation of Federal Rule of Criminal Procedure 6(e)(2). The government has acknowledged, in the proceedings below and in oral argument before us, that sending such letters to recipients of subpoenas duces tecum is standard procedure in the District of Puerto Rico and elsewhere. ¹ The government contended, however, that the letter did not impose any "obligation" but simply stated the United States Attorney's belief that disclosure would be harmful to the investigation.

Appellants also made the wider contention that the subpoena, when viewed in conjunction with other circumstances surrounding the investigation, indicated that the grand jury was being used for the improper purpose of gathering evidence for a criminal case in which indictments have already issued, viz., United States v. Gerena. They based their claim on several factors. First, they inferred a connection between the importance of the element of travel in the Connecticut indictment and bail hearing and the nature of the subpoena issued to Fernandez' travel agency in Puerto Rico. Second, they claimed that since the government was only able to present inconclusive evidence against Fernandez at the bail hearings it needed the Puerto Rico grand jury investigation to provide the missing information. ² Third, they pointed to the fact that Roberto Moreno, the Assistant United States Attorney assigned to the Puerto Rico grand jury investigation, also participated in pretrial proceedings and in the preparation and submission of the affidavits used to obtain Title III wiretaps in connection with the Connecticut case. ³

Finally, appellants argued that the district court should be particularly sensitive to their claims of prosecutorial misconduct because of its implications for Fernandez' right to travel and freedom of the press. Fernandez is an editorial board member of a political journal, Pensamiento Critico (Critical Thought). He contended that he travels extensively in Latin America as part of his work for the journal. According to appellant, the premises of the journal were searched as part of the "massive operation" during which Fernandez and eleven other individuals were arrested. Affidavit of Appellant's Attorney, App. at 32. Appellants have not raised these constitutional claims on appeal.

The government contended that the prime purpose of the Puerto Rico grand jury was the investigation of crimes other than those named in the Connecticut indictment. In support of this claim, the government submitted a sealed affidavit which it identified as a "Certified Statement of a Special Agent of the Federal Bureau of Investigation."

The district court denied appellants' motions: (1) to quash the subpoena directed to Viajes Antillas; (2) to grant injunctive relief prohibiting the use of the letter containing the paragraph regarding nondisclosure; (3) to grant a protective order prohibiting the government from providing the information obtained from the subpoena to prosecutors in United States v. Gerena; (4) to grant a protective order requiring the government to inform any recipients of the letter accompanying the subpoenas that they were under no legal obligation of secrecy; and (5) to subpoena the foreperson of the grand jury or to allow the unsealing of the government's affidavit in order to help appellants contest the government's claim concerning the object of the grand jury's investigation. The district court did agree with appellants that the subpoena to Viajes Antillas was overbroad and ordered the subpoena restricted to documents pertaining to Fernandez' own travels and not to the travels of his friends, relatives, attorneys or witnesses. ⁴ In re Grand Jury Subpoena, 626 F.Supp. 1057 (D.P.R.1986).

On January 31, 1986, two weeks after the district court issued its decision, Viajes Antillas received a letter from Roberto Moreno requesting the submission of "documents subpoenaed by the Federal Grand Jury ... regarding Hilton Fernandez Diamante and Elias Castro Ramos." Viajes Antillas, which had previously declared its willingness to comply with the subpoena, filed a motion in district court requesting a temporary stay. It based this request on the grounds that the new request relied on the authority of a subpoena that the court had found to be overbroad; it also objected to the request for documents concerning Castro since no subpoena concerning him had been issued. In its response to this motion, the government claimed that Viajes Antillas was engaged in "another dilatory tactic ... to again hinder the conduct of criminal investigations by the federal grand jury." Subsequently, a new subpoena was issued limited to Fernandez and phrased in...