In re Grand Jury Investigation

• Decision Date: 06 April 2006
• Docket Number: No. 04GJ4381.,04GJ4381.
• Citation: 431 F.Supp.2d 584
• Parties: In re GRAND JURY INVESTIGATION.
• Court: U.S. District Court — Eastern District of Virginia

431 F.Supp.2d 584

In re GRAND JURY INVESTIGATION.

No. 04GJ4381.

United States District Court, E.D. Virginia, Alexandria Division.

April 6, 2006.

James P. Gillis, Assistant U.S. Attorney, U.S. Attorney's Office, Alexandria, VA, for the government.

MEMORANDUM OPINION

ELLIS, District Judge.

At issue in this grand jury proceeding is whether a non-target witness in a grand jury proceeding or the witness' former spouse, who is a potential target, may (i) quash the witness' subpoena by asserting that the questions expected to be posed to the witness in the grand jury proceeding are the fruit of illegal electronic surveillance; or (ii) require the government to affirm or deny the existence of illegal electronic surveillance on the basis of mere speculation that such surveillance occurred. Also at issue is whether the nonwitness ex-spouse may quash the witness' subpoena on the basis of the marital privilege, the breadth of which the parties dispute.

I.¹

John Doe and Mary Roe were married on March 13,. 1999 and barely seven months later, on November 2, 1999, they separated permanently. Their divorce became final in January 2003.

John Doe was subpoenaed to testify before a federal grand jury in the Eastern District of Virginia on March 3, 2006. He believes that this subpoena relates to a possible criminal investigation of his ex-wife for violations of 18 U.S.C. § 951.² This belief is based on the following allegations:

(i) A physical search of Mary Roe's home was conducted pursuant to an investigation into possible violations of 18 U.S.C. § 951;

(ii) Mary Roe has traveled extensively throughout the Middle East;

(iii) Mary Roe is an expert on Middle East politics and history, and has lectured and written on the subject;

(iv) Some of Mary Roe's `writings and lectures have been viewed as controversial and overly sympathetic to Palestinian interests; and

(v) As part of her academic work, Mary Roe has interviewed members of Hamas, considered a terrorist organization by the United States government.³

On the basis of these facts, John Doe speculates that his ex-wife is a target of the grand jury's investigation, and further that owing to the nature of her work, she has been the subject of warrantless NSA surveillance pursuant to the program authorized by President Bush shortly after September 11, 2001 ("NSA Program'').⁴

Citing 18 U.S.C. § 2515 and Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), John Doe has moved to quash his subpoena on the ground that he believes he will be asked ' questions derived from the NSA Program's illegal electronic surveillance of his ex-spouse. As a necessary predicate for this motion, he has also moved for the disclosure of any warrantless electronic surveillance of his ex-spouse that is the basis of the grand jury investigation.

Mary Roe has also moved to quash the subpoena served on her ex-husband, based both on the alleged illegality of possible electronic surveillance, and on the privilege protecting confidential communications between husband and wife during marriage. Mary Roe, like her ex-husband, has also moved for the disclosure of any warrantless NSA electronic surveillance of her that may be the basis of any grand jury questioning of her ex-spouse.

II.

In general, a grand jury witness may not avoid his duty to testify because the questions are based on evidence obtained in violation of the witness' Fourth Amendment rights. See United States v. Calandra, 414 U.S. 338, 354, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). This general rule is based on the sensible notion that because any illegally obtained evidence or the fruits of such evidence will be excluded from the criminal trial, the incremental deterrent effect on government misconduct by excluding such questions at the grand jury stage is outweighed by the undue "interference with the effective and expeditious discharge of the grand jury's duties." Id. at 350-51, 94 S.Ct. 613. As the Supreme Court in Calandra stated:

Because the grand jury does not finally adjudicate guilt or innocence, it has traditionally been allowed to pursue its investigative and accusatorial functions unimpeded by the evidentiary and procedural restrictions applicable to a criminal trial. Permitting witnesses to invoke the exclusionary rule before a grand jury would precipitate adjudication of issues hitherto reserved for the trial on the merits and would delay and disrupt grand jury proceedings.

Id. at 349, 94 S.Ct. 613.

This general rule is not without its limits. A grand jury may not itself violate a valid privilege, whether established by common law, statute or the Constitution. Id. at 346, 94 S.Ct. 613 (citing Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972)). For example, a grand jury may not override a witness's Fifth Amendment privilege against self-incrimination without a grant of immunity co-extensive with the privilege. Id. (citing Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)). Nor may a grand jury itself violate the Fourth Amendment by issuing a subpoena duces tecum "too sweeping in its terms to be regarded as reasonable." Id. (citing Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906)). Also, district courts have the power to grant a witness' motion to quash subpoenas for documents or objects if compliance would be "unreasonable or oppressive." Id. at 346 & n. 4, 94 S.Ct. 613 (citing Fed.R.Crim.P. 17(c)).

John Doe's and Mary Roe's motions to quash Doe's subpoena do not rely on any of these well-recognized exceptions, but rely instead on the Supreme Court's decision in Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972). There, a slim majority ⁵ held that a grand jury witness could defend against a contempt citation for refusal to testify before a grand jury by invoking the government's violation of 18 U.S.C. § 2515,⁶ the evidentiary prohibition of Title III of the Omnibus Crime and Control Act of 1968, as "just cause" for such refusal.⁷ Id. at 52, 92 S.Ct. 2357. Justice Brennan, writing for the majority, based this holding, in part, on § 2515's "fundamental policy" of preventing illegal electronic surveillance from invading an individual's privacy interest and entangling the courts in illegal acts. Id. at 51, 92 S.Ct. 2357.⁸ He also noted that the result was buttressed by the passage of 18 U.S.C. § 3504, which requires the government to affirm or deny the existence of illegal electronic surveillance in grand jury and other proceedings "upon the claim of a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act." 18 U.S.C. § 3504(a). In this respect, an "unlawful act" is defined by the statute as "the use of any electronic, mechanical, or other device (as defined in section 2510(5) of this title) in violation of the Constitution or laws of the United States or any regulation or standard promulgated pursuant thereto." 18 U.S.C. § 3504(b). According to Justice Brennan, this section, which he construed as a mechanism for enforcing § 2515, "confirms that Congress meant that grand jury witnesses might defend contempt charges by invoking the prohibition of § 2515 against the compelled disclosure of evidence obtained in violation of Title III.." Gelbard, 408 U.S. at 55, 92 S.Ct. 2357. Doe and Roe rely exclusively on Gelbard's holding as the basis for their motion to quash.

A.

Movants' reliance on Gelbard is misplaced as that decision is properly limited to the precise procedural posture in which it was presented, namely grand jury witnesses defending against contempt charges stemming from a refusal to testify. Nothing in Gelbard warrants the conclusion, advocated here by movants, that motions to suppress, disguised as motions to quash, are cognizable in grand jury proceedings. Indeed, Justice Brennan, pressed by a strong dissent by then Justice Rehnquist, was careful to limit the Gelbard holding to grand jury witnesses defending against contempt proceedings by expressly acknowledging that (1) a motion to suppress pursuant to 18 U.S.C. § 2518(10)(a)⁹ is unavailable in grand jury proceedings, and (2) that this subsection reflected a "congressional concern ... that defendants and potential defendants might be able to utilize suppression motions to impede the issuance of indictments ...." Id. at 59-60, 92 S.Ct. 2357. Additionally, he went on to affirm that "[n]ormally, there is no limitation on the character of evidence that may be presented to a grand jury, which is enforceable by an individual," and that when Congress enacted Title III, it did so with "no intent to change this general rule." Id. at 60, 92 S.Ct. 2357 (quoting United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966) and citing S.Rep.No.1097, 90th Cong., 2d Sess., 106 (1968); U.S.Code Cong. & Admin.News, p. 2195). Only because this "general rule has nothing whatever to do with the situation of a grand jury witness who has refused to testify and attempts to defend a subsequent charge of contempt," did the Gelbard majority hold that the general proscription contained in § 2515 is available as a defense in a contempt proceeding. Id.¹⁰

In sum, Gelbard is properly limited to its facts and thus applies only to grand jury witnesses who, after refusing to testify, seek to show good cause for doing so as a defense to a contempt citation and imprisonment.¹¹ As such, Gelbard is of no aid to these movants; neither has refused to testify and neither is the subject of either a show cause order or a contempt citation. Limiting Gelbard in this respect is appropriate because, as Justice Rehnquist's dissent warns, allowing suppression issues to be imported into grand jury proceedings disguised as motions to quash would spawn satellite litigation on issues properly resolved in post-indictment proceedings and thereby cause "interminable delay but add...