Grand Jury Proceedings, In re

• Citation: 142 F.3d 1416
• Decision Date: 12 June 1998
• Docket Number: No. 95-2322,No. 93-2,93-2,95-2322
• Parties: 111 Fla. L. Weekly Fed. C 1497 IN RE GRAND JURY PROCEEDINGS () JOHN ROE, INC., John Roe, Movants-Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1416

142 F.3d 1416

111 Fla. L. Weekly Fed. C 1497

IN RE GRAND JURY PROCEEDINGS (No. 93-2) JOHN ROE, INC., John Roe, Movants-Appellants, v. UNITED STATES of America, Appellee.

No. 95-2322.

United States Court of Appeals Eleventh Circuit.

June 12, 1998.

Mark E. Grantham, Atlanta, GA, Robert R. Feagin, Holland and Knight, Tallahassee, FL, A. Brian Albritton, Tampa, FL, Peter E. George, Deborah R. Jordan, George and Titus, P.A., Tampa, FL, for Movants-Appellants.

Charles R. Wilson, U.S. Atty., Ronald Henry, Asst. U.S. Atty., Jacksonville, FL, Tamra Phipps, Asst. U.S. Atty., Tampa, FL, for Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before HATCHETT, Chief Judge, TJOFLAT, Circuit Judge, and GODBOLD, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

In this appeal, targets of a federal grand jury investigation, John Roe, Inc. and John Roe, ¹ the principal officer and shareholder of John Roe, Inc., challenge the district court's denial of their motion to quash a grand jury subpoena served on Attorney Doe, their former attorney (the "attorney"). After the district court denied appellants' motion to quash, the attorney appeared before the grand jury and testified, answering all of the questions put to him. Because the attorney has now testified, and because our jurisdiction "depends upon the existence of a case or controversy," North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971), we must consider whether this appeal is moot.

Appellants assert that their appeal is not moot. They argue that the in camera procedure the district court employed in disposing of their motion to quash denied them due process of law, and that, should we agree, we have the power to grant effective relief. Given the availability of effective relief, their argument continues, this appeal is not moot. We find no merit in appellants' argument, and therefore declare this appeal moot. Accordingly, we dismiss the appeal and instruct the district court, on receipt of our mandate, to dismiss the case.

I.

The attorney appeared before the grand jury, pursuant to subpoena, ² on several occasions in connection with a criminal investigation of appellants. ³ During these appearances the attorney was permitted to write down any question he thought might call for the disclosure of communications protected by the attorney-client privilege, and, before answering the question, to consult with appellants who were stationed outside the grand jury room. In most, if not all instances, he thereafter refused to answer the question.

After the attorney's third appearance, the United States Attorney (the "Government") moved the district court, in camera, for an order compelling the attorney to answer the questions he had refused to answer on the ground of attorney-client privilege. According to the Government, those questions and any reasonable follow-up questions would not call for the disclosure of communications protected by the attorney-client privilege because those communications fell within the crime-fraud exception to the privilege. ⁴ To demonstrate the applicability of the exception, the Government submitted to the court in camera supplemental material providing factual support for the motion to compel. This material included the grand jury testimony of the attorney (including the questions he had refused to answer) and of some witnesses; documents in the grand jury's possession; and relevant affidavits. ⁵

Finding that the Government's submission established a prima facie case that appellants had been executing a fraudulent scheme and that they had used the attorney to assist them in doing so, the district court granted the Government's motion to compel and ordered the attorney to answer the grand jury's questions. The court entered the order in camera, with the proviso that the Government disclose the existence of the order to appellants and permit the attorney to read the order.

Following the issuance of the compel order, the grand jury subpoenaed the attorney to appear again. When appellants learned of the subpoena, they moved the court in camera for leave to intervene and to quash the subpoena. ⁶ Citing the attorney-client privilege, they argued that the subpoena should be quashed in full on the ground that anything the attorney might say to the grand jury would reveal privileged communications. Appellants also requested that before ruling on their motion to quash, the court provide them copies of the Government's in camera motion to compel and supplemental supporting materials, as well as the court's order granting that motion (the "in camera documents"). According to appellants, without these in camera documents, they could not respond to the Government's representation that the crime-fraud exception foreclosed the assertion of the attorney-client privilege.

The district court granted appellants' motion to intervene and subsequently entertained, in camera, their memorandum in support of the motion to quash. The court denied appellants' request for copies of the in camera documents, however. After considering the parties' submissions on the application of the crime-fraud exception, the court adhered to its earlier ruling--that the crime-fraud exception rendered the communications between the attorney and appellants discoverable--and therefore denied appellants' motion to quash. Addressing appellants' argument that by denying them access to the in camera documents, the court had deprived them of their day in court on the crime-fraud issue, the court stated that appellants would have a full opportunity to litigate that issue in a contempt hearing, should the attorney refuse to answer the grand jury's questions.

After the district court denied their motion to quash, appellants brought this appeal. They also moved the district court to stay its order pending appeal. The court denied their motion; we likewise denied a stay. Thereafter, the attorney appeared before the grand jury and fully responded to its questions. No indictment has issued.

II.

Appellants ask us to vacate the district court's order denying their motion to quash on the ground that the district court's refusal to provide them with the in camera documents denied them a reasonable opportunity to be heard on the applicability of the crime-fraud exception and, thus, denied them due process of law. ⁷ We cannot entertain this argument ⁸ without first determining whether this appeal is moot. We therefore consider that issue. ⁹

A.

The exercise of federal jurisdiction "depends upon the existence of a case or controversy." Rice, 404 U.S. at 246, 92 S.Ct. at 404. A federal court has no authority "to give opinions on moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 449, 121 L.Ed.2d 313 (1992) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293 (1895)). If, during the pendency of an appeal, an event occurs that makes it impossible for this court to grant " 'any effectual relief whatever' " to a prevailing party, the appeal must be dismissed as moot. Id. at 12, 113 S.Ct. at 449 (quoting Mills, 159 U.S. at 653, 16 S.Ct. at 133).

Considering facts analogous to the instant case, we dismissed an appeal as moot in In re Federal Grand Jury Proceedings 89-10 (MIA), 938 F.2d 1578, 1580-81 (11th Cir.1991). In that case, the appellant was the target of a grand jury investigation. During the course of the investigation, the government moved the district court to compel the testimony of the appellant's attorney, who had refused to answer the grand jury's questions on the ground of attorney-client privilege. After conducting an in camera review of materials submitted by the parties, the district court granted the government's motion, and the target appealed. While the appeal was pending, however, the attorney appeared before the grand jury and testified. Because the attorney had already testified, we declared the case moot. Id. at 1580-81. ¹⁰

In the absence of any controlling precedent to the contrary, this case would appear to involve nothing more than a straightforward application of In re Federal Grand Jury Proceedings 89-10, and would merit summary dismissal of the appeal. The Supreme Court's decision in Church of Scientology v. United States, 506 U.S. 9, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992), however, has presented us with two impediments to the facile disposition of this case: First, the Court's holding in Scientology effectively overruled the cases that served as the precedential basis for our decision in In re Federal Grand Jury Proceedings 89-10, perhaps calling into question the continuing validity of that decision; Second, appellants have crafted an argument, based largely on dicta from a footnote in Scientology, 506 U.S. at 13 n. 6, 113 S.Ct. at 450 n. 6, that, notwithstanding the fact that the attorney has testified, their appeal is not moot because effective relief could be granted if they were to prevail on the merits of their claim. We find that Scientology is distinguishable from the case at hand and that no effective relief is available to remedy appellants' claim. We therefore reject appellants' argument and reaffirm our holding in In re Federal Grand Jury Proceedings 89-10.

B.

Turning to the first issue, our decision in In re Federal Grand Jury Proceedings 89-10 relied primarily on two prior decisions, United States v. First American Bank, 649 F.2d 288 (5th Cir. Unit B 1981), ¹¹ and Lawhon v. United States, 390 F.2d 663 (5th Cir.1968), both of which were effectively overruled by Scientology. In Scientology, the Church of Scientology ("Scientology") appealed a summons enforcement order requiring a state court clerk to comply with an Internal Revenue Service summons. The summons compelled the clerk to deliver to...