Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simels), In re

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore FEINBERG, Chief Judge, FRIENDLY and NEWMAN; FEINBERG; Donald Payden, as intervenor, appeals from an order entered in the United States District Court for the Southern District of New York, David N. Edelstein
Citation767 F.2d 26
Decision Date02 January 1985
PartiesIn re GRAND JURY SUBPOENA DUCES TECUM DATED

Page 26

767 F.2d 26
54 USLW 2049
In re GRAND JURY SUBPOENA DUCES TECUM DATED JANUARY 2, 1985
(Robert M. SIMELS, Esq.)
Donald PAYDEN, Intervenor-Appellant,
v.
UNITED STATES of America, Appellee.
No. 1196, Docket 85-6066.
United States Court of Appeals,
Second Circuit.
Argued April 26, 1985.
Decided June 27, 1985.

Page 27

Elkan Abramowitz, New York City (Obermaier, Morvillo & Abramowitz, P.C., Ronald C. Minkoff, Robert M. Simels, Bennett Gershman, Madeleine M. Nichols, New York City, of counsel), for intervenor-appellant.

John K. Carroll, Asst. U.S. Atty., S.D.N.Y., Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Rhea Kemble Brecher, Stuart E. Abrams, Asst. U.S. Attys., New York City, of counsel, for appellee.

Richard Emery, New York Civil Liberties Union, New York City, amicus curiae.

Herman Kaufman, New York Criminal Bar Association, New York City, amicus curiae.

Merrill N. Rubin, The National Association of Criminal Defense Lawyers, New York City, Alan Silber, New York City, of counsel, amicus curiae.

Gerald B. Lefcourt, Association of the Bar of the City of New York, New York, NY, Committee on Criminal Advocacy, John H. Doyle, III, Association of the Bar of the City of New York, New York, NY, Committee on Criminal Law, Mordecai Rosenfeld, New York County Lawyers Association Committee on Federal Courts, Sheldon H. Elsen, Association of the Bar of the City of New York, New York, N.Y., Committee on Federal Courts, New York City, amici curiae.

Before FEINBERG, Chief Judge, FRIENDLY and NEWMAN, Circuit Judges.

FEINBERG, Chief Judge:

Donald Payden, as intervenor, appeals from an order entered in the United States District Court for the Southern District of New York, David N. Edelstein, J., denying a motion to quash a grand jury subpoena served upon Robert M. Simels, Esq., 605 F.Supp. 839. Mr. Simels is Payden's counsel for the purpose of defending charges brought against Payden in an indictment pending before Judge Edelstein. The subpoena calls for the production of documents relating to the fee arrangement between Payden and Simels. For the reasons stated below, the district court's order must be reversed and the subpoena quashed.

I. PRIOR PROCEEDINGS

Payden was arrested early in August 1984 pursuant to a complaint charging him with violations of the federal narcotics laws. See United States v. Payden, 759 F.2d 202, 203 (2d Cir.1985). Shortly thereafter, he was indicted on similar charges. From the time of his arrest, Payden was represented by Jay Goldberg, Esq. until September 19, when, because of a potential conflict of interest, Goldberg was replaced by Simels. Before Goldberg's withdrawal as counsel, we are told by the government, he remarked to the prosecutor in charge of the case that he had expected to receive a fee of $250,000 from Payden. 1 The grand jury apparently continued its inquiry during this period, and on October 10, it returned a superseding indictment that added a count charging Payden with organizing and engaging in a continuing criminal narcotics enterprise in violation of 21 U.S.C. Sec. 848, a charge carrying a possible life sentence. The Sec. 848 count sought the forfeiture of "all profits and proceeds of profits

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obtained" by Payden from the operation of the enterprise.

A week later, the district court issued a subpoena to Simels, on the government's motion, commanding that he produce for use at trial (then scheduled for early December)

For the period January 1, 1984 to the present: any and all documents referring to, relating to, or reflecting any payment (or proposed payment) of fees (whether by cash, money order, real estate, or in any other way) by or on behalf of Donald Payden, with specific reference to (but not limited to) any retainer agreements, correspondence, bills, receipts, checks, photocopies of checks, or money orders, deposit tickets, ledger entries, as well as any documents pertaining to the transfer of property for legal services. *

This provoked opposition from both Simels and the criminal defense bar. The president of the Association of the Bar of the City of New York expressed concern about "[t]he obvious impact of such subpoenas on the attorney/client relationship and the defendant's right to effective assistance of counsel of his choice." At Simels' request, the trial subpoena was adjourned pending reconsideration of its issuance by the United States Attorney. No response came from the government until January 3, 1985, when Simels received a grand jury subpoena seeking the very same materials described in the trial subpoena; only after the issuance of this grand jury subpoena was the trial subpoena withdrawn.

On January 19, Payden moved in the district court to intervene as of right and to quash the grand jury subpoena pursuant to...

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65 practice notes
  • U.S. v. Monsanto, No. 436
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 29, 1988
    ...See In re Grand Jury Subpoena Duces Tecum dated January 2, 1985 (Payden), 605 F.Supp. 839, 849 n. 14 (S.D.N.Y.), rev'd on other grounds, 767 F.2d 26 (2d Cir.1985). Clearly, he would thus attain a benefit not available to indigent defendants who do not have tainted funds at their More import......
  • U.S. v. Nichols, Nos. 87-1459
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 10, 1988
    ...Duces Tecum Dated January 2, 1985 (Payden v. United States), 605 F.Supp. 839, 849-50 n. 14 (S.D.N.Y.1985), rev'd on other grounds, 767 F.2d 26 (2d Cir.1985). The commentators who have addressed the issue have reached similarly diverse conclusions. Page 1491 We must decide two questions on a......
  • U.S. v. LaPorta, Nos. 39
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 30, 1994
    ...v. United States, 495 U.S. 910, 110 S.Ct. 1936, 109 L.Ed.2d 299 (1990); In re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simels), 767 F.2d 26, 29 (2d Cir.1985); and United States v. Dardi, 330 F.2d 316 (2d Cir.), cert. denied, 379 U.S. 845, 869, 85 S.Ct. 50, 117, 13 L.Ed.2d 50 (196......
  • Com. v. Melson
    • United States
    • Superior Court of Pennsylvania
    • April 18, 1989
    ...when it is established that the sole or dominant purpose for the issuance of a subpoena is improper. See Payden v. United States, 767 F.2d 26 (2nd Cir.1985); United States v. Moss, 756 F.2d 329 (4th Cir.1985); see also Gershman, Prosecutorial Misconduct, § 3.2 (1987) (collecting cases). How......
  • Request a trial to view additional results
65 cases
  • U.S. v. Monsanto, No. 436
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 29, 1988
    ...See In re Grand Jury Subpoena Duces Tecum dated January 2, 1985 (Payden), 605 F.Supp. 839, 849 n. 14 (S.D.N.Y.), rev'd on other grounds, 767 F.2d 26 (2d Cir.1985). Clearly, he would thus attain a benefit not available to indigent defendants who do not have tainted funds at their More import......
  • U.S. v. Nichols, Nos. 87-1459
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 10, 1988
    ...Duces Tecum Dated January 2, 1985 (Payden v. United States), 605 F.Supp. 839, 849-50 n. 14 (S.D.N.Y.1985), rev'd on other grounds, 767 F.2d 26 (2d Cir.1985). The commentators who have addressed the issue have reached similarly diverse conclusions. Page 1491 We must decide two questions on a......
  • U.S. v. LaPorta, Nos. 39
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 30, 1994
    ...v. United States, 495 U.S. 910, 110 S.Ct. 1936, 109 L.Ed.2d 299 (1990); In re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simels), 767 F.2d 26, 29 (2d Cir.1985); and United States v. Dardi, 330 F.2d 316 (2d Cir.), cert. denied, 379 U.S. 845, 869, 85 S.Ct. 50, 117, 13 L.Ed.2d 50 (196......
  • Com. v. Melson
    • United States
    • Superior Court of Pennsylvania
    • April 18, 1989
    ...when it is established that the sole or dominant purpose for the issuance of a subpoena is improper. See Payden v. United States, 767 F.2d 26 (2nd Cir.1985); United States v. Moss, 756 F.2d 329 (4th Cir.1985); see also Gershman, Prosecutorial Misconduct, § 3.2 (1987) (collecting cases). How......
  • Request a trial to view additional results

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