In re Grand Jury Subpoena Duces

• Decision Date: 11 May 2005
• Docket Number: Misc. No. 05-MC-014.,Misc. No. 05-MC-015.
• Citation: 368 F.Supp.2d 846
• Parties: In re: GRAND JURY SUBPOENA DUCES TECUM TO JOHN DOE 1, John Doe 1, Petitioner, and In re: Grand Jury Subpoena Duces Tecum To John Doe 2, John Doe 2, Petitioner.
• Court: U.S. District Court — Western District of Tennessee

Page 846

368 F.Supp.2d 846

In re: GRAND JURY SUBPOENA DUCES TECUM TO JOHN DOE 1, John Doe 1, Petitioner, and

In re: Grand Jury Subpoena Duces Tecum To John Doe 2, John Doe 2, Petitioner.

Misc. No. 05-MC-014.

Misc. No. 05-MC-015.

United States District Court, W.D. Tennessee, Western Division.

May 11, 2005.

Stephen R. Leffler, Leffler Law Office, Memphis, for Nicholas Kerby, Petitioner, Pro se.

Dan Newsom, U.S. Attorney's Office, Memphis, for In Re: Grand Jury Proceeding.

Marty B. McAfee, McAfee & McAfee. Memphis, for Ryan Kerby.

ORDER GRANTING MOTIONS TO QUASH SUBPOENAS DUCES TECUM TO TESTIFY BEFORE FEDERAL GRAND JURY

MCCALLA, District Judge.

Before the Court are the Motions to Quash Subpoenas Duces Tecum to Testify Before Federal Grand Jury of Petitioners John Doe 1 and John Doe 2, filed in open court on March 15, 2005.¹ After an initial hearing on March 15, 2005, the Court requested that the parties submit briefs regarding the instant motions. The United States filed a consolidated response to both motions on March 23, 2005. Petitioner John Doe 2 filed a reply to the United States's response on March 24, 2005. The Court held a second hearing regarding these motions on March 24, 2005. In response to the Court's inquiry, the parties filed supplemental papers on March 29, 2005.² For the following reasons, Petitioners' motions to quash the subpoenas duces tecum are GRANTED.

I. BACKGROUND

On or about March 1, 2005, Petitioners John Doe 1 and John Doe 2 were served with subpoenas duces tecum³ to testify before a Federal Grand Jury and to bring with them: "[a]ny and all records pertaining to models used by [company/website names redacted] office located at [redacted]." (Mot. to Quash Subpoena Duces Tecum to Testify Before Federal Grand Jury, Ex. 1.)⁴ Petitioners move to quash the subpoenas because they are purportedly in violation of their Fifth Amendment rights to be free from self-incrimination. The United States contends that an exception to the general Fifth Amendment privilege applies in this case because the documents requested are records required to be kept pursuant to a valid regulatory scheme.

A. 18 U.S.C. § 2257

The records sought by the United States are those required to be kept under 18 U.S.C. § 2257. Section 2257 requires that anyone who "produces any book, magazine, periodical, film, videotape, or other matter which ... contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct ... shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction." 18 U.S.C. § 2257(a). Specifically, § 2257 requires producers, "with respect to every performer portrayed in a visual depiction of actual sexually explicit conduct," to:

(1) ascertain, by examination of an identification document containing such information, the performer's name and date of birth, and require the performer to provide such other indicia of his or her identity as may be prescribed by regulations;

(2) ascertain any name, other than the performer's present and correct name ever used by the performer including maiden name, alias, nickname, stage, or professional name; and

(3) record in the records required by subsection (a) the information required by paragraphs (1) and (2) of this subsection and such other identifying information as may be prescribed by regulation.

18 U.S.C. § 2257(b). The records required by § 2257 are to be maintained "at [the producer's] business premises, or at such other place as the Attorney General may by regulation prescribe." 18 U.S.C. § 2257(c). Producers must "cause to be affixed to every copy of any matter described in paragraph (1) of subsection (a) of this section ... a statement describing where the records required by this section with respect to all performers depicted in that copy of the matter may be located." 18 U.S.C. § 2257(e)(1). Further, producers "shall make such records available to the Attorney General for inspection at all reasonable times." 18 U.S.C. § 2257(c). Section 2257 also requires the Attorney General to issue regulations to implement the section. 18 U.S.C. § 2257(g).

Although § 2257 generally exempts information required to be kept under the statute from being used in some criminal prosecutions,⁵ that exemption does not extend to "the use of such information or evidence in a prosecution or other action for a violation of this chapter or chapter 71, or for a violation of any applicable provision of law with respect to the furnishing of false information." 18 U.S.C. § 2257(d)(2). The reference to "this chapter" refers to Chapter 110 of the United States Code, entitled "Sexual Exploitation and Other Abuse of Children." See 18 U.S.C. Pt. 1, Ch. 110. That chapter includes statutes that prohibit, inter alia, the employment of minors in sexually explicit media (hereinafter "child pornography"). See 18 U.S.C. § 2251 et seq. Accordingly, information required to be kept under § 2257 may be utilized in a criminal prosecution relating to child pornography.⁶

In addition to delineating the above requirements, § 2257 specifically provides that:

(f) It shall be unlawful —

(1) for any person to whom subsection (a) applies to fail to create or maintain the records as required by subsections (a) and (c) or by any regulation promulgated under this section;

(2) for any person to whom subsection (a) applies knowingly to make any false entry in or knowingly to fail to make an appropriate entry in, any record required by subsection (b) of this section or any regulation promulgated under this section;

(3) for any person to whom subsection (a) applies knowingly to fail to comply with the provisions of subsection (e) or any regulation promulgated pursuant to that subsection; and

(4) for any person knowingly to sell or otherwise transfer, or offer for sale or transfer, any book, magazine, periodical, film, video, or other matter, produce [sic] in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce or which is intended for shipment in interstate or foreign commerce, which —

(A) contains one or more visual depictions made after the effective date of this subsection of actual sexually explicit conduct; and

(B) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;

which does not have affixed thereto, in a manner prescribed as set forth in subsection (e)(1), a statement describing where the records required by this section may be located, but such person shall have no duty to determine the accuracy of the contents of the statement or the records required to be kept.

18 U.S.C. § 2257(f). Specific criminal penalties for violation of the statute are included, as follows:

i) Whoever violates this section shall be imprisoned for not more than 5 years, and fined in accordance with the provisions of this title, or both. Whoever violates this section after having been convicted of a violation punishable under this section shall be imprisoned for any period of years not more than 10 years but not less than 2 years, and fined in accordance with the provisions of this title, or both.

18 U.S.C. § 2257(i). Section 2257 does not provide for any other types of penalties. Moreover, § 2257 does not provide for any civil enforcement mechanisms.

II. ANALYSIS

The Court will first discuss the relevant precedent regarding the required records exception, followed by a discussion of the purpose behind § 2257. Finally, the Court will analyze the applicability of the required records exception to this case in light of the relevant precedent.

A. The Required Records Exception

Petitioners contend that requiring compliance with the subpoena would violate their Fifth Amendment privilege to be free from self-incrimination. The United States contends that the documents are required records and therefore Petitioners' Fifth Amendment privileges do not apply.

The general Fifth Amendment privilege against self-incrimination does not apply to records that are required to be kept pursuant to a valid regulatory scheme. Shapiro v. United States, 335 U.S. 1, 17-18, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948)⁷. However, "the privilege against self-incrimination must be construed so as to preserve its constitutional imperative `as a bulwark against iniquitous methods of prosecution.'" In re Grand Jury Subpoena Duces Tecum Served Upon Underhill, 781 F.2d 64, 67 (6th Cir.1986)(quoting United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944)). Accordingly, the required records exception is a "narrow exception." Underhill, 781 F.2d at 67. In order for the government's request for information to meet this narrow exception, three requirements must be met: "[f]irst, the purposes of the government's inquiry must be essentially regulatory, rather than criminal. Second, the records must contain the type of information that the regulated party would ordinarily keep. Third, the records must have assumed public aspects which render them at least analogous to public documents." Id. (citing Grosso v. United States, 390 U.S. 62, 67-68, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968)) (internal quotation marks omitted).⁸

The fact that the Grand Jury investigates crimes does not mean that the purposes of the government's inquiry in this case are criminal. Underhill, 781 F.2d at 67. Rather, "the relevant inquiry is whether the statute and regulations which require their maintenance are regulatory in nature." Id.

The Supreme Court has found that the purpose of the government's inquiry is not regulatory, and therefore the required records exception does not apply, when the persons to whom the inquiry is directed are "a highly selective group inherently suspect of criminal activities" and when the inquiry concerns "an area...