829 F.2d 1291 (4th Cir. 1987), 86-5159, In re Grand Jury Subpoena: Subpoena Duces Tecum

Docket Nº:86-5159(L), 86-5171.
Citation:829 F.2d 1291
Party Name:In re GRAND JURY SUBPOENA: SUBPOENA DUCES TECUM, Petitioner (Four Cases). UNITED STATES of America, Plaintiff-Appellee, v. JOHN DOE 819 (MODEL MAGAZINE), Defendant-Appellant (Two Cases). UNITED STATES of America, Plaintiff-Appellee, v. JOHN DOE 819 (METRO VIDEO), Defendant-Appellant (Two Cases).
Case Date:September 24, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1291

829 F.2d 1291 (4th Cir. 1987)

In re GRAND JURY SUBPOENA: SUBPOENA DUCES TECUM, Petitioner

(Four Cases).

UNITED STATES of America, Plaintiff-Appellee,

v.

JOHN DOE 819 (MODEL MAGAZINE), Defendant-Appellant (Two Cases).

UNITED STATES of America, Plaintiff-Appellee,

v.

JOHN DOE 819 (METRO VIDEO), Defendant-Appellant (Two Cases).

Nos. 86-5159(L), 86-5171.

United States Court of Appeals, Fourth Circuit

September 24, 1987

        Argued Dec. 9, 1986.

Page 1292

        Herald Price Fahringer (argued), Edward Gasthalter (Ralph J. Schwarz, Jr., New York City, Gerard F. Treanor, Jr., Venable, Baetjer and Howard, McLean, Va., on brief), for defendant-appellant.

        Lawrence Joseph Leiser, U.S. Atty., Alexandria, Va., on brief, for plaintiff-appellee.

        Before PHILLIPS, ERVIN and WILKINSON, Circuit Judges.

Page 1293

        ERVIN, Circuit Judge:

        These cases concern the permissible breadth and requisite specificity of a subpoena duces tecum that seeks the production of materials that are presumptively protected under the first amendment to the United States Constitution. The cases arise on a motion to stay a contempt order. In their briefs and oral arguments the parties addressed the merits of the appeal from the contempt order. We therefore treat the issues before us on the merits, instead of limiting our consideration to the narrower request for a stay. Appeal of a civil contempt order is proper in this context. See United States v. Ryan, 402 U.S. 530, 532, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971); Cobbledick v. United States, 309 U.S. 323, 328, 60 S.Ct. 540, 542, 84 L.Ed. 783 (1940).

        A party who chooses to run the risk of fines and imprisonment due to contempt can contest the validity of a subpoena in the role of contemner. If the subpoena is even partially bad, the contempt conviction should be reversed. "One should not be held in contempt under a subpoena that is part good and part bad. The burden is on the court to see that the subpoena is good in its entirety and it is not upon the person who faces punishment to cull the good from the bad." Bowman Dairy v. United States, 341 U.S. 214, 221, 71 S.Ct. 675, 679, 95 L.Ed. 879 (1951).

        The subpoenas duces tecum involved in these cases were served upon appellants Model Distributors and Metro Video Distributors in October, 1986. Appellants, corporations located in New Jersey and New York, are apparently suspected by the government of having sent obscene videotapes into the Washington, D.C. metropolitan area for commercial purposes. 1 The government issued the subpoenas duces tecum in connection with a grand jury investigation into the distribution of obscene materials. The original subpoenas duces tecum were exactly alike. They sought:

  1. Corporate tax returns for the years 1980 through 1985.

  2. Any and all original records and documents including but not limited to: correspondence, notes, letters, invoices, memoranda, messages, receipts, shipping invoices and records, orders for merchandise, films and video tapes, contracts, license agreements, etc.; in other words, any and all records or documents between, to, from or concerning any of the following entities from 1980 to the present: [naming 11 entities].

  3. One copy of any video tape cassette, 8 mm film or 16 mm film that visually depict any of the following:

            (a) the use of a minor engaging in sexually explicit conduct, that is:

    (1) sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, whether between persons of the same or opposite sex;

    (2) bestiality;

    (3) masturbation;

    (4) sadistic or masochistic abuse; or

    (5) lascivious (lewd, lustful) exhibition of the genitals or pubic area.

            (b) adults engaging in sexually explicit conduct, that is:

    (1) sexual intercourse, involving oral-genital, anal-genital or oral-anal, whether between persons of the same sex or opposite sex;

    (2) bestiality;

    (3) masturbation;

    (4) sadistic or masochistic abuse; or

    (5) lascivious (lewd, lustful) exhibition of the genitals or pubic area.

  4. For the period 1980 to the present any and all documents and records concerning, referring to, naming, listing or

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    in any way dealing with any visual depictions, i.e., video tape cassettes, 8 mm films, 16 mm films, etc., where the production of such visual depiction involves: [same categories as above, (a) and (b) ].

  5. For the period 1980 to the present any and all records and documents that reflect the payment of any things of value including, but not limited to, cash, money, checks, commissions, gifts and gratuities to any officer, employee, consultant, agent or in other words any payment of anything of value made to any individual or entity on behalf of [name of party], including, but not limited to: Forms W-2, 1099, 941 and 940, employee payroll ledgers, payroll account bank statements, cancelled checks, deposit tickets and debit/credit memoranda.

  6. For the period 1980 to the present any and all cash receipts, records, cash disbursement records, general journals and ledgers including, but not limited to:

    (a) invoices (sales and creditors and shipping receipts);

    (b) accounts receivable/payroll;

    (c) bank statements, cancelled checks, deposit tickets and debit/credit memoranda; and

    (d) records of inventory.

            The government met with counsel and the custodian of records for Metro Video Distributors and agreed to modify the subpoena duces tecum in several ways. In particular, Metro Video Distributors explained that it did not deal in tapes involving minors as specified in items 3(a) and 4(a) of the subpoena, so that compliance would consist in a custodian's explaining to the grand jury that no such tapes or records existed. The government postponed compliance on several other items. After a later meeting between the United States Attorney and counsel for Metro Video Distributors, the government agreed to limit the required production under items 3 and 4 to "only those titles which you characterize as x-rated." Model Distributors did not negotiate an agreement with the government.

            Both Metro Video Distributors and Model Distributors moved to quash their subpoenas duces tecum in the United States District Court for the Eastern District of Virginia. At separate hearings before the same district court judge, the appellants argued that the production of tapes called for in item 3 of the subpoenas duces tecum was overly burdensome and violated their rights under the first and fourth amendments to the United States Constitution. The district court judge agreed with the government that production of the videotapes was not overly burdensome because the categories in the subpoenas duces tecum were specific. The government urged, and the court accepted, that a business enterprise, no matter how large, that sells videotapes will be familiar enough with the contents of those tapes to comply with subpoenas duces tecum such as these in a relatively short amount of time.

            Metro Video Distributors claims to be one of the world's largest distributors of videotapes, with over 200 employees in seven areas around the country and Puerto Rico. Its inventory of videotapes purportedly exceeds 85,000 titles. Metro Video Distributors claims that less than one percent of the tapes that it distributes could be considered "x-rated and/or obscene." In response to the subpoena duces tecum, Metro Video Distributors identified 141 x-rated tapes. However, at the time of the district court's refusal to quash the subpoena, Metro Video Distributors indicated that it would refuse to comply with the item 3 request for the tapes in order to preserve its right to appeal in the posture of a contemner.

            Model Distributors claims to distribute roughly 6,000 magazines and paperbacks and approximately 3,000 videotapes each week. Like Metro Video Distributors, it denies handling any items that involve child pornography, although it apparently has, to date, refused to place a corporate custodian on the stand to so testify. Model Distributors claimed in the district court that it had roughly 2,000 videotapes that might contain material described in the subpoena

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    duces tecum that it had received. 2 Both appellants point out that the titles of videotapes in their inventory and the boxes in which those videotapes are stored do not indicate whether any particular tape contains a "lewd display of genitals" or other form of sexual activity specified in the subpoenas. 3

            For purposes of this appeal, we deal only with those items in the subpoenas duces tecum calling for production of videotapes, packaging in which those tapes are contained, 4 and documents related to tapes involving listed categories of sexual activity. The requests for business records otherwise appear to be clearly delineated and not overly burdensome. It is only as to those items that require a prior identification of videotapes that we are troubled.

            Model Distributors refused to produce the requested tapes or the boxes and containers in which they were stored, or documents relating to the sale of such tapes. It is unclear in the record before us whether business and tax records not linked to the videotapes have been satisfactorily produced. Metro Video Distributors apparently complied with the request for tax records and business dealings, but refused to deliver tapes conforming to the subpoena duces tecum.

            The district court judge held Model Distributors in civil contempt and assessed a fine of $1000 for every day that it refused to comply with item 3 of the subpoena. The district court judge refused to stay this order pending appeal. Model Distributors applied for and received a stay from a panel of this court, pursuant to Fed.R.App.P. 8(a). Metro Video Distributors went before the district court thereafter and was held in civil contempt and assessed the...

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