Grand Jury Subpoena Dated June 5, 1985, In re

• Decision Date: 05 June 1985
• Citation: 825 F.2d 231
• Parties: In re GRAND JURY SUBPOENA DATED
• Court: U.S. Court of Appeals — Ninth Circuit

Page 231

825 F.2d 231

In re GRAND JURY SUBPOENA DATED JUNE 5, 1985 John DOE, Petitioner/Appellant, v. UNITED STATES of America, Respondent/Appellee.

Nos. 85-2456, 85-2457, 85-2845, 85-2875.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 10, 1986.

Decided Aug. 18, 1987.

Peter F. Vaira, Philadelphia, Pa., David P. Bancroft, San Francisco, Cal., for petitioner-appellant.

Geoffrey A. Anderson, San Francisco, Cal., for respondent-appellee.

Appeal from the United States District Court for the Northern District of California.

Before KENNEDY, HUG, ^* and HALL, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Appellants James Roe and John Doe ¹ appeal from two district court orders. The first order denied in part their motion to quash a subpoena duces tecum directed at Doe and ordered the clerk of the district court to release to the grand jury certain documents held under seal. The second order denied their motion to direct the government to disclose the contents of a grand jury transcript and a government affidavit presented to the district court. The district court viewed both of these documents in camera before deciding the first order. This court consolidated the appellants' four appeals from these two orders.

The appellants allege that the proceedings leading to the release of the documents violated their rights to procedural due process. They ask us to order the government to return all copies of the documents. The district court had jurisdiction pursuant to 28 U.S.C. Sec. 1331. Whether we have jurisdiction under 28 U.S.C. Sec. 1291 is in dispute. We hold that we do not have jurisdiction. We dismiss Roe's appeals because they are not justiciable; we dismiss Doe's appeals because they are from nonappealable orders.

I.

On June 5, 1985, a grand jury impaneled in the Northern District of California issued a subpoena duces tecum upon appellant John Doe, counsel for both appellant James Roe and a business associate of Roe, commanding him to produce certain records of transactions between Roe and the business associate and certain notes, correspondence, and memoranda concerning conversations between Doe and the business associate. On July 9, 1985, Doe moved to quash the subpoena, asserting the attorney-client and work-product privileges. The government opposed the motion, contending that the crime-fraud exception nullified both privileges.

On July 22, 1985, the district court judge held a hearing on the Motion to Quash. All parties were represented by counsel at this hearing, including Doe. The district court judge granted Roe leave to intervene and Roe joined in Doe's Motion to Quash. In support of the subpoena, the government filed a sealed affidavit of Department of Justice attorney Geoffrey Anderson which the district court reviewed in camera. Anderson's affidavit stated that the government possessed grand jury materials which established a prima facie case of ongoing fraud and criminal activity against Roe and Doe. In addition, the government filed a sealed grand jury transcript of one witness' testimony in support of the subpoena duces tecum. Appellants Doe and Roe did not object to the government's submissions to the court for in camera review, nor did they ask to examine the government's affidavit or the sealed grand jury transcript.

At the hearing, the district court judge asked Doe to provide him with the allegedly privileged documents for in camera review. The judge stated that he would not review those documents unless he determined, on the basis of the documents provided by the government, that the government had established a prima facie case of crime or fraud. Doe willingly complied with the court's request. In fact, in a memorandum dated July 29, 1985, Doe himself "suggest[ed] that the court examine [some of] the material in camera to determine if the crime-fraud exception applie[d]." Doe did not ask the district court judge to return the documents should he rule for the government.

On August 16, 1985, the district court entered an order denying in part Roe and Doe's motion to quash. The order concluded that "the government had made a prima facie showing of a violation sufficiently serious to preempt both the attorney client and work product privileges" and that "several of the documents, or portions thereof, should be released to the grand jury for their consideration." ² The order stated that the first conclusion was based solely on the court's in camera inspection of the submissions made by the government and that the second conclusion was based on its subsequent in camera review of the documents submitted by Doe. The order also stated that the court had "arranged for release of [the non-privileged] documents directly to a special agent in the U.S. Attorney's Office" for presentation to the grand jury. Appellants filed timely appeals from this order.

On August 28, 1985, appellants Doe and Roe filed in the district court an emergency motion to stay implementation of the district court's order pending appeal to this court. Before the documents were delivered to the grand jury, the district court ordered the special agent to delay delivery to the grand jury until the district court resolved the appellants' motion to stay. The government agreed not to give the documents to the grand jury or disseminate them in the interim.

On October 23, 1985, the district court denied the stay motion. For purposes of completing the record for appeal, the district court ordered the government to return the originals of the documents to the clerk of the district court, but permitted the government to make copies. The appellants then filed a motion for full disclosure of the contents of government attorney Anderson's affidavit and the sealed grand jury transcript. The district court denied the appellants' motion, and Roe and Doe timely appealed from this order.

On October 29, 1985, appellants filed in this court an emergency motion to stay implementation of the district court's August 16, 1985 order. A motions panel of this court denied the appellants' emergency motion. At that point, the government apparently delivered the documents to the grand jury.

After briefing but before oral argument of this appeal, the grand jury returned an indictment against Roe based on its review of the documents. The grand jury did not take any action against Doe, but it did retain the documents. After the grand jury's indictment of Roe, the government moved to dismiss this case as moot. The appellants oppose this motion and ask us to order the government to return all copies of the documents. Appellants have never asked the district court judge to order the government to return the documents.

II.

The government contends that Roe's appeal is not justiciable because it is now moot. An appeal is moot when we are unable to grant any effective relief. In re Cook, 730 F.2d 1324, 1326 (9th Cir.1984). The government's argument is based on the fact that the relief which Roe originally requested--return of the documents prior to their release to the grand jury--is now impossible. Since the grand jury has received the documents and indicted Roe, the government contends that we are unable to grant Roe any effective relief. Roe maintains that his appeal is not moot because the government remains in possession of the documents at issue and we can order the government to return them to him. Roe relies on our holdings in In re Grand Jury Investigation (Sells ), 642 F.2d 1184, 1187-88 (9th Cir.1981), aff'd sub nom. United States v. Sells, 463 U.S. 418, 422 n. 6, 103 S.Ct. 3133, 3137 n. 6, 77 L.Ed.2d 743 (1983), and in Hoffritz v. United States, 240 F.2d 109, 111 (9th Cir.1956).

A.

Roe contends that in Sells we rejected a mootness argument indistinguishable from the government's argument in this case. In Sells, a district court disclosure order gave the Civil Division of the Department of Justice access to documents acquired by a federal grand jury in an earlier criminal proceeding. The government planned to and did use the documents against Sells in a civil proceeding. Sells appealed, alleging grand jury abuse. Sells, 642 F.2d at 1186. We held that the appeal was not moot, even though many of the materials had already been disclosed to Civil Division attorneys and their assistants, because each day that the order remained in effect the "veil of secrecy" was "lifted higher by disclosure to additional personnel and by the continued access of those to whom the documents have already become familiar." Id. at 1188. "By its terms the disclosure order grant[ed] access to all attorneys for the Civil Division, their paralegal and secretarial staff, and all other necessary assistants." Id. at 1187-88. Under these circumstances, we recognized that Sells' appeal was "a proper means to prevent future disclosure before it occurs." Id. at 1188 (emphasis added).

In the present case, the government is not using the documents in any civil proceeding; in fact, the district court did not grant access to anyone other than the grand jury. Roe has provided no evidence of further or otherwise improper disclosure. Future disclosure is unlikely, at least until Roe's trial, at which time Roe can move to suppress any improper disclosure by the government. See Part II. B. infra.

Roe's request for a remedy designed to prevent the grand jury from obtaining access to the documents is therefore moot since there is no effective relief which we can now order. Roe has been indicted; we cannot "unring that bell." See Maness v. Meyers, 419 U.S. 449, 460, 95 S.Ct. 584, 592, 42 L.Ed.2d 574 (1975); cf In re Grand Jury Proceedings (Katz ), 623 F.2d 122, 124 (2d Cir.1980) (order appealable) ("Here the cat apparently is still in the bag since the disputed documents are being held under seal in the district court.") (emphasis added) (citing Maness v. Meyers, 419 U.S. at 463, 95 S.Ct. at 593). In Roe's case, the cat has been out of the bag ever...