Grand Jury Proceedings, In re

• Decision Date: 26 June 1997
• Docket Number: No. 96-20728,96-20728
• Parties: In re GRAND JURY PROCEEDINGS.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1240

115 F.3d 1240

In re GRAND JURY PROCEEDINGS.

No. 96-20728.

United States Court of Appeals Fifth Circuit.

June 26, 1997.

Paula Camille Offenhauser, Assistant U.S. Attorney, Kathlyn Giannaula Snyder, Houston, TX, for Appellant.

Simson Unterberger, Durango, CO, for Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before REYNALDO G. GARZA, JONES and DeMOSS, Circuit Judges.

EDITH H. JONES, Circuit Judge:

I. BACKGROUND

Faced with a request to quash a grand jury subpoena, the federal district court in Houston was apprised that two months earlier, the movants' premises had been searched in Colorado under a warrant with a sealed supporting affidavit. The district court disagreed philosophically that a search could be so conducted. Consequently, although the movants never objected to the search, the court went them one better on relief from the grand jury subpoena. He ordered that unless the search warrant affidavit was unsealed, he would suppress the evidence from the search. The government has appealed. Because this order lacks supporting authority and, indeed, flouts the governing procedures for contest of search warrants and grand jury subpoenas, we reverse.

On May 6, 1996, the United States Attorney for the Southern District of Texas requested two grand jury subpoenas, to be served on two Colorado organizations, Pro Vantage One International, L.L.C., and Pro Vantage One (collectively, "Pro Vantage"), requiring them to produce documents and appear before a Houston, Texas federal grand jury. In connection with the grand jury investigation, the government also applied to a federal magistrate judge in Colorado for a search warrant. The magistrate judge promptly issued the warrant, which was executed on May 15 at a house in Colorado. The printed search warrant form completed by the government did not list the objects of the search. Instead, the form stated:

[T]here is now concealed a certain person or property, namely (describe the person or property)

PLEASE SEE AFFIDAVIT

The only attachment described the premises with a photograph of the building to be searched. By request of the government, the Colorado magistrate judge sealed the application and affidavit supporting the search warrant except to law enforcement officials. Thus, Pro Vantage never received the affidavit that listed the objects of the search in the warrant. After a large volume of documents was seized pursuant to the warrant, however, Pro Vantage was given an inventory.

On July 25, Pro Vantage One International, L.L.C. and its manager Thomas Kiser ("Appellees") moved to quash the grand jury subpoenas in the Southern District of Texas, arguing that the subpoenas are impermissibly overbroad and lacking in particularity in violation of the Fourth Amendment, and that by serving subpoenas simultaneously with search warrants, the government was seizing Appellees' papers and effects without having to show the probable cause that a search warrant would require.

The federal district court held a hearing on this motion, during which the court requested to see the sealed affidavit that the government had filed in the Colorado federal court pursuant to its FED. R. CRIM. P. 41 search warrant application. The court reviewed the affidavit in camera. A day later, he ordered the government to disclose the search warrant affidavit to Appellees. That August 2nd order also stated that the scope of the subpoena was "excessive on the basis of the affidavit," and required the government to revise its description of the documents being sought by subpoena. Responding to the government's motion to reconsider, the court entered another order on August 7, which stated in part: "the government must disclose the affidavit supporting the search warrant by noon, Friday, August 9, 1996, or all the evidence from the search will be suppressed." The district court reiterated this demand in an accompanying Opinion on Search Warrant issued on August 7, 1996. This court stayed the district court's order pending appeal.

II. STANDARD OF REVIEW

We review subject matter jurisdiction de novo as a question of law. DeCell & Assoc. v. Federal Deposit Ins. Corp., 36 F.3d 464, 467 (5th Cir.1994), cert. denied, 515 U.S. 1121, 115 S.Ct. 2275, 132 L.Ed.2d 279 (1995). We review a district court's decision granting a motion to quash or modify a subpoena for abuse of discretion. See Tiberi v. CIGNA Ins. Co., 40 F.3d 110, 112 (5th Cir.1994). We review a district court's rulings on a motion to suppress under the clearly erroneous standard for findings of fact, and de novo for issues of law, viewing evidence in the light most favorable to the prevailing party. United States v. Brown, 102 F.3d 1390, 1394 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1455, 137 L.Ed.2d 559 (1997).

We have jurisdiction over a district court order quashing or modifying a grand jury subpoena pursuant to 18 U.S.C. § 3731. See In re Grand Jury Subpoena, 646 F.2d 963, 967 (5th Cir.1981). We also have jurisdiction over a preindictment conditional suppression order pursuant to 18 U.S.C. § 3731. See United States v. Ramirez-Gonzalez, 87 F.3d 712, 713 (5th Cir.1996) (stating that court had jurisdiction over appeal of suppression order before jeopardy attached under 18 U.S.C. § 3731); United States v. Presser, 844 F.2d 1275, 1279-80 (6th Cir.1988) (finding appellate jurisdiction under 18 U.S.C. § 3731 for a government appeal of a discovery order when suppression of evidence was threatened for noncompliance); United States v. Horwitz, 622 F.2d 1101, 1104-05 (2d Cir.1980), cert. denied, 449 U.S. 1076, 101 S.Ct. 854, 66 L.Ed.2d 799 (1981) (concluding that government could immediately appeal a conditional suppression order under 18 U.S.C. § 3731).

III. ANALYSIS

1. Order to Revise Grand Jury Subpoenas.

The only issue properly before the district court in Houston was Appellees' motion to quash the grand jury subpoenas. Appellees did not challenge the Colorado search based on Fourth Amendment grounds or pursuant to Fed. Rule Crim. Proc. 41(e), but rather argued that the documents requested by the subpoenas might be the same as those seized during the search, and that the subpoenas (not the warrants ) were overbroad and lacking in particularity. Although the district court reviewed the search warrant affidavit in camera, the government never filed the sealed affidavit with the district court, and the government urged that it did not need to establish probable cause to support a grand jury subpoena. Thus, the subpoena alone, and not the search warrant, was properly before the court.

In general, courts have very little authority over the proceedings of a grand jury. As the Supreme Court has observed, "the grand jury is an institution separate from the courts, over whose functioning the courts do not preside." United States v. Williams, 504 U.S. 36, 47, 112 S.Ct. 1735, 1742, 118 L.Ed.2d 352 (1992). Further, "[j]udges' direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office." Id. These cautions frame the first issue, whether there was any ground for the district court, in its August 2 order, to find that the scope of the subpoena was excessive and to require the government to modify the subpoena by revising the list of documents being sought.

In examining a grand jury subpoena, a court considers whether compliance "would be unreasonable or oppressive." See FED. R. CRIM. P. 17(c); United States v. R. Enterprises, Inc., 498 U.S. 292, 299, 111 S.Ct. 722, 727, 112 L.Ed.2d 795 (1991). The law presumes, however, that, "absent a strong showing to the contrary, ... a grand jury acts within the legitimate scope of its authority." Id. at 301, 111 S.Ct. at 728. Moreover, "a grand jury subpoena issued through normal channels is presumed to be reasonable, and the burden of showing unreasonableness must be on the recipient who seeks to avoid compliance." Id.

The Appellees have failed to meet their burden. In their Motion to Quash Subpoenas to Testify Before Grand Jury, Appellees objected to the grand jury subpoenas on three grounds. First, they argued that certain items which the subpoenas required the Appellees to produce may have already been seized pursuant to the search warrant; they asserted they were hampered from confirming this by the sealing of the warrant affidavit. This complaint proves nothing in terms of unreasonableness or oppression. Appellees received a written inventory of the documents seized. Rather than seeking to quash the subpoenas, the Appellees could state to the grand jury that the documents are now in the government's possession. Appellees' administrative compliance problem is not the courts' business.

Second, Appellees contended that the subpoenas were overbroad and lacking in particularity, in violation of their Fourth Amendment right to be free of unreasonable searches and seizures. A subpoena duces tecum is not itself a search or seizure, however, and the actual search that occurred on May 15, 1996 was conducted pursuant to a search warrant. Thus, Appellees' argument conflates a grand jury subpoena with a magistrate judge's search warrant. But the instruments are different in nature and issued from different authorities. Even if this court were to construe Appellees' argument as an assertion that compliance with the subpoena would be unreasonable or oppressive, Appellees have failed to make the requisite showing. Appellees cite that the subpoena requested at least eighty-five kinds of documents relating to approximately one hundred and seventy-eight different persons and entities, but they do not explain how, if at all, production of the documents unreasonably burdens them. Simply citing the types of information sought by the government does not alone constitute a "strong showing" sufficient to counter the presumption that...