In re Grand Jury Subpoenas Duces Tecum, etc.

• Decision Date: 31 March 1975
• Docket Number: Misc. No. 75-50.
• Court: U.S. District Court — District of Rhode Island
• Parties: In re GRAND JURY SUBPOENAS DUCES TECUM ADDRESSED TO CERTAIN EXECUTIVE OFFICERS OF the M. G. ALLEN & ASSOCIATES, INC.

391 F. Supp. 991

In re GRAND JURY SUBPOENAS DUCES TECUM ADDRESSED TO CERTAIN EXECUTIVE OFFICERS OF the M. G. ALLEN & ASSOCIATES, INC.

Misc. No. 75-50.

United States District Court, D. Rhode Island.

March 31, 1975.

James R. McGowan, Salter, McGowan, Arcaro & Swartz, Inc., Providence, R. I., for movants.

Lincoln C. Almond, U. S. Atty., Providence, R. I., for respondent.

OPINION

DAY, District Judge.

The controversy presently before the Court concerns itself with the validity of two grand jury subpoenas duces tecum which were issued by the Clerk of this Court on March 7, 1975, pursuant to an application filed on behalf of the United States of America by the United States Attorney for the District of Rhode Island. Said subpoenas duces tecum commanded the production of certain designated books and records of the M. G. Allen and Associates, Inc.¹ before a federal grand jury in Providence, Rhode Island, on March 11, 1975.

Specifically, the grand jury subpoenas herein involved directed Mr. Max G. Allen, the President of M. G. Allen & Associates, Inc. and Mr. Joseph F. Farrell, the Vice-President of said corporation, to produce the following corporate books and records before the Federal Grand Jury:²

1. Bank statements and cancelled checks of M. G. Allen & Associates, Inc., including payroll checks for all checking accounts, open and/or closed, for the period October 1, 1970, through December 31, 1973; and

2. All invoices and bills and other supporting documents justifying entries to the cash disbursements journal for the period October 1, 1970, through December 31, 1973.

This matter is presently before the Court on a motion to quash the two aforementioned grand jury subpoenas duces tecum. Said instant motion to quash was filed on March 11, 1975 by Messrs. Allen and Farrell on behalf of their corporate employer.

The movants have proffered three grounds upon which they claim entitlement to an order quashing the two subpoenas duces tecum in question. First, the movants aver that the two subpoenas herein involved are invalid and unreasonable because (1) they are over broad on their face, that is, the descriptions of the books and records to be produced are so broad as to be unreasonable and oppressive, and (2) there has been no showing by the Government that all of the subpoenaed documents have some relevance to the grand jury's investigation of an offense within its jurisdiction. Second, the movants contend that the two subpoenas in question are "repetitious and harassing" insofar as they command the production of documents and records, the great bulk of which had previously been voluntarily turned over to Internal Revenue Agents by Mr. Farrell. Third, the movants argue that any enforced compliance with that part of the subpoenas herein involved calling for the production of "all invoices and bills and other supporting documents justifying entries to the cash disbursements journal" would be

"unreasonable and oppressive in that loss of custody of such records would interfere with the company's conduct of extensive litigation, as more fully set out in the attached affidavit of attorney Charles J. McGovern . . ."³

Consideration of the merits of these arguments follows immediately below.

REASONABLENESS OF THE GRAND JURY SUBPOENAS

This Court has previously placed its imprimatur on the well settled, almost proverbial, doctrine that federal courts have the jurisdiction to quash unreasonable and oppressive federal grand jury subpoenas. See In re Grand Jury Subpoenas Duces Tecum, Docket Number C. A. 75-191 (D.R.I. 12/27/74); Rule 17(c), Federal Rules of Criminal Procedure; Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946); Schwimmer v. United States, 232 F.2d 855 (8th Cir.), cert. denied, 352 U.S. 833, 77 S.Ct. 48, 1 L.Ed.2d 52 (1956); United States v. Gurule, 437 F.2d 239 (10th Cir.), cert. denied sub nom, Baker v. United States, 403 U.S. 904, 91 S.Ct. 2202, 29 L.Ed.2d 679 (1971); Schultz v. Yeager, 293 F.Supp. 794 (D.N.J.), aff'd, 403 F.2d 639 (3rd Cir.), cert. denied, 394 U.S. 961, 89 S.Ct. 1309, 22 L.Ed.2d 562 (1969); In re Grand Jury Subpoena Duces Tecum, etc., 203 F.Supp. 575 (S.D.N.Y.1961); In re Grand Jury Subpoena Duces Tecum, 342 F.Supp. 709 (D.Md.1972). Additionally, this Court has previously recognized that federal grand jury subpoenas which are over broad, and/or which command the production of documents having no proven relevance to a legitimate⁴ grand jury investigation, may be considered unreasonable and oppressive. See In re Grand Jury Subpoenas Duces Tecum, supra, at p. 8; United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1972); In re Horowitz, 482 F.2d 72 (2d Cir.), cert. denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973); Schwimmer v. United States, supra; In re Grand Jury Subpoena Duces Tecum Addressed to Corrado Bros., Inc., 367 F. Supp. 1126 (D.Del.1973).

In the In re Grand Jury Subpoenas Duces Tecum case this Court adopted a three-part test to be utilized in determining whether or not federal grand jury subpoenas duces tecum are unreasonable and oppressive. Specifically, this tripartite test was set forth as follows:

". . . there are three components, so-called, which this Court must consider in measuring the reasonableness of the seven aforementioned grand jury subpoenas. These three components are:

". . . (1) The subpoena may command only the production of things relevant to the investigation being pursued; (2) the specification of things to be produced must be made with reasonable particularity; and (3) production of records covering only a reasonable period of time may be required . . ." United States v. Gurule, supra, 437 F.2d at p. 241; see In re Grand Jury Subpoena Duces Tecum, 342 F.Supp. 709 (D. Md.1972); In re Grand Jury Subpoena Duces Tecum, etc., 203 F.Supp. 575 (S.D.N.Y.1961)." In re Grand Jury Subpoena Duces Tecum, supra, at p. 9.

As a final preliminary to an analysis as to whether or not the two grand jury subpoenas herein involved satisfy this three-part test, it must be noted that a presumption of regularity attaches to all grand jury subpoenas duces tecum. See In re Lopreato, 511 F.2d 1150 (1st Cir. 1975); In re Grand Jury Proceedings, Jacqueline Schofield, Witness, 486 F.2d 85 (3rd Cir. 1973); Beverly v. United States, 468 F.2d 732 (5th Cir. 1972). In the face of such a presumption of regularity, and the narrow scope of judicial review of grand jury proceedings and subpoenas, cf. In re Grand Jury Proceedings, Schofield, 507 F.2d 963 (3rd Cir. 1975),⁵ an individual seeking a court order quashing a grand jury subpoena must maintain a heavy burden of proving that the pertinent grand jury subpoena is unreasonable and oppressive. Specifically persons opposing the enforcement of a grand jury subpoena duces tecum have the initial burden of rebutting said presumption of regularity by introducing evidence which will establish —

1. That the pertinent grand jury subpoena's description of the documents to be produced is so broad as to be unduly oppressive and burdensome; and/or

2. That the pertinent grand jury subpoena's designation of the items to be produced is so generally phrased and non-specific as to render said subpoena's command for production unreasonable; and/or

3. That said pertinent grand jury subpoena's "command for production of documents" covers an unreasonably long period of time.

It is of ultimate importance to note that the initial burden of proof concerning the relevance, or lack thereof, of subpoenaed documents to a legitimate grand jury investigation falls upon the party seeking judicial enforcement of said subpoena, that is, said initial burden of proof falls upon the Government. The reason for this apparent reversal of the traditional procedure for allocating burdens of proof lies naturally in the fact that a party seeking to quash a grand jury subpoena duces tecum on the ground that the subpoenaed documents bear no relevance to a legitimate grand jury investigation has, because of secrecy of grand jury deliberations, no pre-compliance knowledge as to the nature of said investigation. Obviously, said moving party cannot, without any knowledge concerning the subject matter of the pertinent grand jury investigation, possibly establish that the particular subpoenaed documents bear no relevance to the unknown investigation. See In re Grand Jury Proceedings, Jacqueline Schofield, Witness, supra, 486 F.2d at p. 92 ("Certainly the fact of grand jury secrecy suggests that the party seeking enforcement of a grand jury subpoena be required to make some minimum showing of the existence of a proper purpose before it can trigger the enforcement machinery of the judicial branch . . .").

If the Government can establish to the Court's satisfaction that the documents requested have some general relevance to a legitimate grand jury investigation, said prima facie showing of relevance becomes irrebuttable. The parties opposing the enforcement of a grand jury subpoena duces tecum cannot, subsequent to a successful prima facie showing of relevance by the Government, obtain any evidence concerning the nature and purpose of the pertinent grand jury investigation.⁶ Additionally, said opposing parties cannot introduce any further evidence or offer new testimony in an attempt to rebut the Government's prima facie showing of relevancy. Any factual disputation of said prima facie showing, insofar as it relates to the occurrence of the alleged offense under investigation by the grand jury, must await resolution at a subsequent trial on the merits. See, e. g., United States v. Dionisio, supra, 410 U. S. at p. 17, 93 S.Ct. at 773 (1972) (". . . Any holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede the investigation and frustrate the public's interest in the fair and expeditious administration of the...