Grand Jury Subpoenas Dated Dec. 7 and 8, Issued to Bob Stover, Chief of Albuquerque Police Dept. v. U.S., s. 94-2032

• Decision Date: 21 November 1994
• Docket Number: 94-2033,Nos. 94-2032,s. 94-2032
• Citation: 40 F.3d 1096
• Parties: In re GRAND JURY SUBPOENAS DATED DECEMBER 7 AND 8, ISSUED TO BOB STOVER, CHIEF OF ALBUQUERQUE POLICE DEPARTMENT, Petitioner, v. UNITED STATES of America, Respondent-Appellee, Steve Nakamura, Albuquerque Police Department Officer; John Does 1 Through 5, Five Albuquerque Police Department Officers, Intervenors-Real Parties in Interest-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1096

40 F.3d 1096

In re GRAND JURY SUBPOENAS DATED DECEMBER 7 AND 8, ISSUED TO

BOB STOVER, CHIEF OF ALBUQUERQUE POLICE

DEPARTMENT, Petitioner, v. UNITED STATES of America, Respondent-Appellee, Steve Nakamura, Albuquerque Police Department Officer; John

Does 1 Through 5, Five Albuquerque Police

Department Officers, Intervenors-Real

Parties in Interest-Appellants.

Nos. 94-2032, 94-2033.

United States Court of Appeals, Tenth Circuit.

Nov. 21, 1994.

Peter Schoenburg (Randi McGinn with him on the briefs), Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg, Albuquerque, for appellants.

Mark L. Gross, Dept. of Justice, Washington, DC (Jessica Dunsay Silver, Department of Justice, Washington, DC; John J. Kelly, U.S. Atty., Albuquerque, and Deval L. Patrick, Asst. Atty. Gen., Washington, DC, with him on the briefs), for appellee.

Before ANDERSON, REAVLEY, ^* and HENRY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

In these consolidated appeals, we consider whether presentation to a grand jury of a police officer's compelled statement taken pursuant to an internal affairs investigation constitutes a violation of the officer's Fifth Amendment right against self-incrimination. We hold that it does not.

BACKGROUND

These appeals arise out of the fatal shooting of Peter Klunck by Albuquerque Police Department ("APD") officers on January 27, 1989. Following the shooting, the APD Internal Affairs Unit ("IAU") initiated an investigation into the incident. Department policy provides that APD officers must answer questions put to them during the course of an internal affairs investigation, but departmental regulations also provide that any statement given by an officer cannot be used against that officer in a subsequent criminal prosecution:

Personnel must, as a condition of continuing employment, truthfully answer any and all questions relating to the matter under investigation regardless of whether they are a participant or a witness to the matter. The determination of whether a question is relevant to the matter under investigation shall be made solely by the investigator conducting the investigation. Nothing contained herein shall be the basis for an individual waiving his Fifth Amendment rights under the Constitution or law of the Albuquerque Police Department, Administrative Order Sec. 3-43-10(B), Appellants' App. at 19. During the course of the investigation, Officer Steve Nakamura and other APD officers who were at the scene of the Klunck shooting were interviewed by IAU investigators. After receiving the admonition and assurances recited above, the officers answered the questions put to them by the investigator.

United States of America or the State of New Mexico.

In May of 1992, the Federal Bureau of Investigation began a preliminary investigation into the shooting of Mr. Klunck. The FBI requested the internal affairs file from APD Chief Bob Stover who refused the request on the basis that the statements were compelled by department policy and therefore not subject to disclosure. Appellants' App. at 18.

On December 7, 1993, a federal grand jury in Albuquerque investigating the shooting of Mr. Klunck served a subpoena duces tecum on Chief Stover requesting a "[c]omplete copy of the Internal Affairs Report regarding the shooting and subsequent death of Peter James Klunck by officers of the Albuquerque Police Department." Appellants' App. at 12. On December 8, a grand jury in Las Cruces subpoenaed the same documents.

Stover filed a motion to quash or modify the subpoena on the ground that the officers were compelled to give their statements under threat of termination and, therefore, under Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), these statements could not be used in a subsequent criminal proceeding against the officers. Appellants' App. at 59-63. The district court reviewed the statements in camera and found that Stover had failed to carry his burden of showing that the subpoena was unreasonable. See Fed.R.Crim.P. 17(c). On January 7, 1994, the court denied Stover's motion to quash. The court ordered Stover to turn the subpoenaed material over to the Assistant United States Attorney with directions that the documents not be disclosed except to those persons authorized to receive grand jury material under Fed.R.Crim.P. 6. Stover immediately filed a motion to stay the order.

On January 11, 1994, Officer Nakamura filed a motion to intervene as a real party in interest and requested a stay and reconsideration of the court's order denying Stover's motion to quash the subpoena. Nakamura, like Stover, argued that the internal affairs statements were compelled and, therefore, Garrity required the court to limit and supervise the grand jury's use of the internal affairs file. Appellants' App. at 114-19. Additionally, five unnamed members of the APD, all of whom had been involved with the Klunck shooting and had given internal affairs statements, separately filed a "Motion for Intervention, Stay of Order and Reconsideration." The officers also argued that, under Garrity, their statements could not be disclosed to the grand jury.

The district court denied Stover's motion for a stay and on January 12, 1994, denied the motions of Nakamura and the five unnamed officers. The statements were turned over to the grand jury. Subsequently, Officer Nakamura was subpoenaed and testified before the grand jury in Albuquerque under a formal grant of immunity. See 18 U.S.C. Sec. 6002. The record does not disclose that any of the APD officers were indicted by the grand jury. However, the jury had not been discharged at the time the district court entered its order.

Officer Nakamura and the five unnamed officers challenge the district court's denial of their motions to intervene, ¹ claiming that the very act of disclosing a police officer's

compelled statement to the grand jury constitutes a violation of the officer's Fifth Amendment right against self incrimination. In the alternative, they argue that the court erred in ordering production of the internal affairs statements without conducting a hearing to determine (1) the government's "compelling interest" in the statements, (2) that the statements sought bore a substantial relationship to the investigation, and (3) that the officers whose statements were sought were not targets of the investigation.

DISCUSSION

I.

Before reaching the merits of this appeal, we first address the basis of this court's jurisdiction. Our appellate jurisdiction under 28 U.S.C. Sec. 1291 is limited to final decisions rendered by the district courts. The denial of a motion to quash a subpoena duces tecum is not a final decision, but is, rather, interlocutory in nature and thus not an appealable order. United States v. Ryan, 402 U.S. 530, 532, 91 S.Ct. 1580, 1581-82, 29 L.Ed.2d 85 (1971); Cobbledick v. United States, 309 U.S. 323, 329-30, 60 S.Ct. 540, 543-44, 84 L.Ed. 783 (1940); In re Grand Jury Proceedings, 857 F.2d 710, 711 (10th Cir.1988) ("Company X ").

The law is well settled that "one to whom a subpoena is directed may not appeal the denial of a motion to quash that subpoena but must either obey its commands or refuse to do so and contest the validity of the subpoena if he is subsequently cited for contempt on account of his failure to obey." Ryan, 402 U.S. at 532, 91 S.Ct. at 1582. The Supreme Court, however, has recognized an exception to this general rule. In Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918), the Court held that the district court's order denying Perlman's motion to quash a subpoena was immediately appealable because the third party to whom the subpoena was directed, a court clerk, would not have risked a contempt citation in order to preserve Perlman's privilege. Id. at 13, 38 S.Ct. at 419-20.

We addressed the parameters of the Perlman exception in In re Grand Jury Proceedings, Vargas, 723 F.2d 1461 (10th Cir.1983), holding that in order for a corporate client to appeal denial of its motion to quash a subpoena directed at its attorney, it had to "await a contempt citation against its attorney or be able to prove that the attorney [would] produce the records rather than risk contempt." Id. at 1466; see United States v. Nixon, 418 U.S. 683, 691, 94 S.Ct. 3090, 3099, 41 L.Ed.2d 1039 (1974); Company X, 857 F.2d at 711-12.

In this case, however, Chief Stover, informed the officers that he intended to turn the internal affairs file over to the grand jury. Appellants' App. at 122. Thus, if denial of the officers' motions were not immediately appealable, they would have been "powerless to avert the mischief of the order." Perlman, 247 U.S. at 13, 38 S.Ct. at 419; see In re Federal Grand Jury Proceedings, Cohen, 975 F.2d 1488, 1491-92 (11th Cir.1992) (holding intervening police officers' claim within Perlman exception because attorney in that case not expected to risk contempt). We conclude, therefore, that, as to Nakamura and the five unnamed APD officers, the district court's denial of their motions to intervene, stay, and reconsider constituted a final appealable order. Accordingly, we have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

Our next threshold inquiry is whether this case is moot. "[A] federal court has no authority 'to give opinions upon 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, --- U.S. ----, ----, 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)); see North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971); In re Osborn, 24 F.3d 1199, 1203 (10th Cir.1994). "[T]he existence of a live case or controversy is a constitutional prerequisite to the jurisdiction of the federal courts." Beattie v. United States, 949 F.2d 1092, 1093 (10th Cir.1991)....