Grand Jury Subpoena Served Upon Doe, In re

Decision Date16 July 1985
Docket NumberD,No. 638,638
Citation759 F.2d 968
PartiesIn re GRAND JURY SUBPOENA SERVED UPON John DOE, Esq., Petitioner, Richard ROE, Intervenor-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 84-6319.
CourtU.S. Court of Appeals — Second Circuit

Mark M. Baker, John H. Jacobs, New York City, for intervenor-appellant.

Michael A. Guadagno, Asst. U.S. Atty., Raymond J. Dearie, U.S. Atty., Edward A. McDonald, U.S. Dept. of Justice, Brooklyn, N.Y., for respondent-appellee.

Before TIMBERS, CARDAMONE and ROSENN, * Circuit Judges.

ROSENN, Senior Circuit Judge.

This case presents an important question concerning the right to have counsel of one's choosing. The issue arises in connection with a grand jury subpoena duces tecum served upon an attorney, John Doe, Esquire. Richard Roe (Client), a target of the grand jury's investigation and a longtime client of the attorney, obtained intervenor status and appeals from an order denying a motion to quash the subpoena. Client contends, and the Government concedes, that if the subpoena is enforced, his attorney will be disqualified as counsel if Client is indicted. The Government did make a showing of relevance. The district court, however, rejected the contention that the Government also should be required to make a preliminary showing of need before compelling the attorney to testify. We reverse.

I.

A grand jury in the Eastern District of New York is currently investigating an organized crime family. Of particular relevance is the grand jury's consideration of evidence that may establish that a certain faction of the crime family constitutes an "enterprise," as that term is defined in 18 U.S.C. Sec. 1961(4) (1982) (a portion of the RICO statute), and that Client headed that "enterprise." As part of this inquiry, the grand jury is interested in determining whether Client paid for, or otherwise arranged for, the legal representation of members of his "crew" (as the faction is known) who were apprehended during the commission of illegal activity. This would, according to the Government, tend to indicate the existence of an enterprise within the meaning of the RICO statute and to point to Client as the leader. In an effort to establish whether Client actually paid or arranged for the legal representation, the grand jury caused a subpoena duces tecum to be served upon his attorney, a lawyer who has represented Client for approximately the last 18 years. The subpoena called for the attorney's appearance and the production of records of "fees, monies, property or other things of value received, accepted, transferred or held by [him] ... on his behalf, from, on account of, or on behalf of" twenty-one individuals, several of whom are members of Client's "crew."

On October 5, 1984, the attorney moved for an order pursuant to Fed.R.Crim.P. 17(c) to quash the grand jury subpoena on the ground that the Government had not shown, among other things, either the relevance of the materials to the scope of the inquiry or a particular need for the materials sought. The attorney also argued that the Government was employing the subpoena as the "ultimate weapon" to disqualify him from the case. The Government responded by submitting an affidavit describing the scope of the grand jury inquiry and the relevance of the materials sought.

The district court denied the motion to quash, finding that the information requested in the subpoena was relevant to the grand jury inquiry and that the attorney had shown no reason why the material should not be provided to the grand jury. The court also held that the possibility of the lawyer's eventual disqualification was far outweighed by the importance of presenting the evidence to the grand jury.

The Government agreed to forbear from enforcing the subpoena pending appeal, and the district court granted intervenor status to Client for the purpose of bringing this appeal. 1

II.

Grand jury subpoenas are issued by the clerk of the court under the court's seal in blank to anyone requesting them without prior court approval or control. Fed.R.Crim.P. 17(a). Although sometimes viewed as instrumentalities of the grand jury, they are "in fact almost universally instrumentalities of the United States Attorney's Office or of some other investigative or prosecutorial department of the executive branch." In re Grand Jury Proceedings (Schofield), 486 F.2d 85, 90 (3d Cir.1973). To protect parties against the abuse of this subpoena power, Fed.R.Crim.P. 17(c) empowers the district court, on motion, to quash or modify a subpoena "if compliance would be unreasonable or oppressive." As noted by the First Circuit in In Re Pantojas, 628 F.2d 701, 705 (1st Cir.1980), and reaffirmed recently in In Re Grand Jury Matters, 751 F.2d 13, 16 (1st Cir.1984), "[t]he practical responsibility for controlling grand jury excesses lies with the district court, on which the grand jury must rely for subpoena [enforcement] and contempt procedures." Our standard of review of the district court's decision to deny the motion to quash the subpoena in this case is whether it "acted so arbitrarily here as to exceed its very broad, but not limitless, discretion in this area." In re Grand Jury Matters, 751 F.2d at 16.

Although the grand jury has the right and duty to procure every man's evidence, United States v. Dionisio, 410 U.S. 1, 9-10, 93 S.Ct. 764, 769- 770, 35 L.Ed.2d 67 (1973), the grand jury's powers are not limitless; they are subject to the court's supervisory powers under Fed.R.Crim.P. 17(c), which include the power to quash or modify a subpoena "if compliance would be unreasonable or oppressive." In exercising his supervisory power, "A judge may quash grand jury subpoenas in the proper exercise of his rule 17(c) ... powers even though the subpoenaed materials are not covered by a statutory, constitutional, or common law privilege. See, e.g., United States v. Winner, 641 F.2d 825 (10th Cir.1981)." In Re Grand Jury Matters, 751 F.2d at 18.

It may also be helpful to an analysis of the issue before us to state briefly some related or tangential matters that need not be considered. This case does not involve the integrity of the grand jury or the status of sixth amendment rights during the grand jury proceedings. 2 It is undisputed that the sixth amendment right to counsel does not attach at the grand jury stage. Nor is the attorney-client privilege at stake. 3 Our focus is upon a narrow issue in the spectrum of the attorney-client relationship and the administration of justice under an adversary system of law: did the district court act unreasonably in failing to require of the Government, before enforcing a subpoena served upon counsel to testify before a grand jury investigating his client, a preliminary showing of the relevance of and need for the attorney's testimony and records?

A cornerstone of our adversary system of criminal justice is the right of an accused to have counsel represent him. The Colonists considered the right to the assistance of counsel in criminal cases to be fundamental even before the adoption of the federal Constitution and the Bill of Rights. See Powell v. Alabama, 287 U.S. 45, 61-64, 53 S.Ct. 55, 61-63, 77 L.Ed. 158 (1932). The sixth amendment, which incorporated this view of the role of counsel by providing that in all prosecutions the accused shall enjoy the right to have the assistance of counsel for his defense, gave the principle constitutional dimensions. "[T]he right ... is of such a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the basis of all our civil and political institutions.' " Id. at 67, 53 S.Ct. at 63 (quoting Hebert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270 (1926)).

The Supreme Court in more recent years has observed that the plain wording of the sixth amendment guarantee encompasses counsel's assistance whenever necessary to assure a meaningful defense. United States v. Wade, 388 U.S. 218, 225, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967). It therefore follows that in assuring a meaningful defense, and in the preparatory stages long before trial, 4 an accused has the fundamental right to be represented by counsel "of his own choice." Powell v. Alabama, 287 U.S. at 53, 53 S.Ct. at 58; see also United States v. Curcio, 694 F.2d 14, 22-23 (2d Cir.1982); United States v. Flanagan, 679 F.2d 1072, 1075 (3d Cir.1982), rev'd on other grounds, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984).

Of course, this right is not absolute. For example, it has been pointed out that the "protection [provided by the right] goes no further than preventing arbitrary dismissal of the chosen attorney." Id. at 1075. 5 Moreover, it is clear that the sixth amendment right to counsel does not attach at the grand jury stage. See Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); United States v. Vasquez, 675 F.2d 16 (2d Cir.1982) (per curiam). In the instant case, however, we are not concerned with sixth amendment rights as they apply, or do not apply, during the grand jury investigation. Rather, the facts of this case are more accurately seen as impinging on Client's right to have counsel of his choosing in the event an indictment is returned against him--a point at which the sixth amendment unquestionably becomes applicable. That is, this is not a case where a grand jury witness seeks to have the assistance of counsel, or have counsel appointed for him, while appearing before the grand jury. Instead, Client is seeking to preserve his right to have counsel of his own choosing in the event he is indicted. If the right is not protected now, once the right does attach it will already have been rendered meaningless. This circuit has stated that "the right to obtain the assistance of couns...

To continue reading

Request your trial
15 cases
  • In re Williams
    • United States
    • U.S. District Court — Southern District of Florida
    • August 3, 1987
    ...fee information has been addressed by several circuits in recent history, often with divergent results. In re Grand Jury Subpoena Service Upon Doe, 759 F.2d 968, 971 (2d Cir.1985); United States v. Liebman, 742 F.2d 807 (3d Cir.1984); In re Shargel, 742 F.2d 61 (2d Cir.1984); In re Ousterho......
  • State ex rel. Doe v. Troisi
    • United States
    • West Virginia Supreme Court
    • May 18, 1995
    ...Supreme Court in Williams v. District Court, El Paso County, 700 P.2d 549, 555 (Colo.1985),quoting In re Grand Jury Subpoena Served Upon John Doe, 759 F.2d 968, 975 (2nd Cir.1985), judgment vacated by 781 F.2d 238 (1986), cert. denied sub nom., Roe v. United States, 475 U.S. 1108, 106 S.Ct.......
  • United States v. Punn
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 6, 2013
    ...jurisdiction did not mention, or even cite, either Lavender or Perjury Grand Jury. Instead, it relied on In re Grand Jury Subpoena Served Upon Doe, 759 F.2d 968, 971 n. 1 (2d Cir.1985), vacated, 781 F.2d 238 (2d Cir.1986) (“Doe”) 7 and In re Katz, 623 F.2d 122, 124–25 (2d Cir.1980) (Fifth A......
  • U.S. v. Hurtado
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • December 19, 1985
    ...record in the case. United States v. Nixon, 418 U.S. 683, 702, 94 S.Ct. 3090, 3104, 41 L.Ed.2d 1039 (1974); In re Grand Jury Subpoena Served Upon Doe, 759 F.2d 968, 971 (2d Cir.1985); United States v. MacKey, 647 F.2d 898, 901 (9th Cir.1981) (per curiam ). However, here we must review the c......
  • Request a trial to view additional results
2 books & journal articles
  • Fighting for Fees-Drug Trafficking and the Forfeiture of Attorney's Fees
    • United States
    • Journal of Drug Issues No. 18-3, July 1988
    • July 1, 1988
    ...restrictions onthegovernment's grandjurysubpoena power have been imposed in certain appellate courts. In a 1985case, In re Doe (759 F 2d 968), the Second Circuit heldthatagrandjurycannotobtain asubpoena for information from a lawyer regarding aclient unlesstheprosecutor demonstratestheinfor......
  • Defending the Federal Drug or Racketeering Charge
    • United States
    • Colorado Bar Association Colorado Lawyer No. 16-4, April 1987
    • Invalid date
    ...605 F.Supp. 839 (S.D.N.Y. 1985) rvsd 767 F.2d 26 (2d Cir. 1985). 31. Id. at 846. 32. Id. at 848. 33. In re Grand Jury (Doe) (Roe v. U.S.), 759 F.2d 968 (2d Cir. 1985), vacated, 781 F.2d 238 (2d Cir. 1986) (en banc). 34. Id. at 972. 35. Payden v. United States, 767 F.2d 26 (2d Cir. 1985). 36......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT