Grand Jury Subpoena Dated Jan. 30, 1986 to Bronx Democratic Party, In re

• Decision Date: 30 January 1986
• Citation: 784 F.2d 116
• Parties: In re GRAND JURY SUBPOENA DATED
• Court: U.S. Court of Appeals — Second Circuit

Page 116

784 F.2d 116

In re GRAND JURY SUBPOENA DATED JANUARY 30, 1986 TO BRONX DEMOCRATIC PARTY, Secretary/Treasurer Stanley Friedman BRONX COUNTY DEMOCRATIC COMMITTEE and Stanley M. Friedman Plaintiffs-Appellants, v. Hon. Robert L. CARTER, Individually and as Judge of the United States District Court for the Southern District of New York and Rudolph W. Giuliani, Individually and as United States Attorney for the Southern District of New York Defendants-Appellees.

Nos. 955, 956, Dockets 86-6039, 86-6041.

United States Court of Appeals Second Circuit.

Argued Feb. 14, 1986.

Decided Feb. 14, 1986.

Thomas G. Puccio, New York City (Joann Crispi, Mary J. Fahey, Stroock & Stroock & Lavan, of counsel), for plaintiff-appellant Stanley M. Friedman.

Robert F. Katzberg, Kaplan & Katzberg, New York City, for plaintiff-appellant Bronx County Democratic Committee.

William J. Schwartz, Asst. U.S. Atty., S.D.N.Y. (Rudolph W. Giuliani, U.S. Atty., Stuart E. Abrams, Asst. U.S. Atty., New York City, of counsel), for defendants-appellees.

Before LUMBARD, PIERCE and ALTIMARI, Circuit Judges.

PER CURIAM:

Stanley M. Friedman and the Bronx County Democratic Committee (Committee) appeal from an order of the United States District Court for the Southern District of New York, Edelstein, Judge, denying appellant Friedman's motion to intervene and quash or modify a grand jury subpoena duces tecum and denying both appellants' motion for a preliminary injunction enjoining enforcement of the subpoena.

On January 30, 1986, a grand jury sitting in the Southern District of New York issued a subpoena duces tecum to the Secretary/Treasurer of the "Bronx Democratic Party" calling for the production of six categories of documents including, inter alia, all records relating to "contributions made to any and all candidates for elective office and contributions made to any and all political committees and party sub-committees" as well as "[l]ists of all contributors, date and amount of contributions to Bronx Democratic Party and all Queens [sic] Democratic Party sub-committees." The subpoena was returnable on Friday, January 31, 1986, forthwith and was served on the Committee by two FBI agents at 11:30 a.m. on January 31. Later that day, counsel for Friedman telephoned the Assistant United States Attorney (hereinafter referred to as the Government) to protest that counsel needed more time in which to examine the documents on behalf of his client, who is the chairman of the Committee. The Government replied that compliance was required forthwith and that it was prepared to defend the subpoena in court. At approximately 4:00 p.m., the government obtained an ex parte order from the United States District Court for the Southern District of New York, Carter, Judge, compelling production of the documents sought in the subpoena by 7:30 p.m. The order was read over the telephone to the Secretary of the Committee, Murray Lewinter; the government told him that non-compliance would lead to a contempt citation and incarceration. At approximately 6:00 p.m., counsel for the Committee brought on a motion to quash the subpoena before Judge Carter; the judge denied the motion after argument, and ordered production of the documents. The documents were produced that night. The Government agreed, however, to leave them unexamined in a sealed carton until Wednesday, February 5, 1986 at 2:00 p.m. when Lewinter, or a suitable substitute, was required to appear as a custodial witness to authenticate the documents before the grand jury.

Before the grand jury convened, however, appellants attempted to obtain relief from Judge Edelstein, who was then sitting in Part I. On the morning of February 5, Friedman moved to intervene in the action and obtain an order quashing or modifying the subpoena; Friedman and the Committee also filed a civil suit against Judge Carter and United States Attorney Rudolph Giuliani, claiming that enforcement of the subpoena would violate appellants' First Amendment rights of association and political expression and would have a chilling effect on the exercise of such rights by others. Accordingly, the appellants moved in a civil suit for a preliminary injunction preventing the subpoena's enforcement. After hearing oral argument, Judge Edelstein denied the relief sought and ordered appellants to comply with the subpoena. A new order was issued directing Lewinter to appear before the grand jury to produce and authenticate the records at 2:30 p.m. on February 5, 1986. Friedman and the Committee appealed to this court, which granted a stay of these orders pending these appeals. We announced our decision in open court on February 14, with a written opinion to follow. For the reasons set forth below, we vacated our stay and dismissed the appeals.

It is well-settled that a person who has been served with a subpoena may not...