In re Grand Jury Subpoena

• Decision Date: 17 January 1986
• Docket Number: Misc. No. 85-147(PG).
• Citation: 626 F. Supp. 1057
• Parties: In re GRAND JURY SUBPOENA.
• Court: U.S. District Court — District of Puerto Rico

626 F. Supp. 1057

In re GRAND JURY SUBPOENA.

Misc. No. 85-147(PG).

United States District Court, D. Puerto Rico.

January 17, 1986.

Judith Berkan, Hato Rey, Puerto Rico, for movant.

Roberto Moreno, Asst. U.S. Atty., Hato Rey, Puerto Rico, for the United States.

OPINION AND ORDER

PEREZ-GIMENEZ, Chief Judge.

This matter is before this Court on Hilton Fernández Diamante's motion to intervene and to quash a grand jury subpoena and a motion for injunctive relief.¹

Hilton Fernández Diamante (hereinafter movant) was arrested on August 30, 1985, along with several other defendants in the case of United States v. Gerena, et al., Cr. Case No. 85-50 (TEC), in the District of Connecticut, pursuant to an indictment returned by a grand jury in the District of Connecticut, on August 26, 1985. In the case of United States v. Gerena, et al., Mr. Fernández Diamante is charged, along with others, of participating in a conspiracy to rob a Wells Fargo truck in West Hartford, Connecticut. The indictment further alleges that Mr. Fernández Diamante is a member of the Macheteros, a pro-independence clandestine organization, which is alleged to have claimed responsibility for the robbery. The indictment further alleges that Mr. Fernández Diamante and others caused the movement of money and/or persons to Mexico and to Cuba in connection with the aforementioned conspiracy. On November 18, 1985, a subpoena was issued to Viajes Antillas, a travel agency located in Rio Piedras, Puerto Rico, ordering the delivery to a grand jury of "any and all records pertaining to Hilton Fernández Diamante. This subpoena was accompanied by a letter signed by Assistant United States Attorney Roberto Moreno, of the Special Prosecutions Unit. The letter stated in part as follows:

You are not to disclose the existence of this subpoena or the fact of your compliance for a period of 90 days from the date of the subpoena. Any such disclosure could seriously impede the investigation being conducted and, thereby, interfere with the enforcement of the federal criminal law.

On December 3, 1985, the movant filed a motion to intervene and to quash the grand jury subpoena and motion for injunctive relief. The latter motion requests this Court to issue an order requiring the office of the United States Attorney to refrain from using the referred letter, to remove any obligation of secrecy with respect to the grand jury witnesses, and to prohibit the alleged misconduct on the part of the United States Attorney. In support thereof, the movant filed amemorandum where he argues that the language used in the above letter is unauthorized, amounts to prosecutorial interference with the rights of the recipients and obstructs the performance of an adequate defense. The motion to quash is based on several grounds:

(1) Improper use of the grand jury investigation to obtain information and leads with respect to a pending criminal case in which Mr. Fernández Diamante is charged;

(2) Pattern of prosecutorial misconduct in the course of the investigation resulting in an intimidation of witnesses and an interference with the defense of the pending criminal case;

(3) Impingement of the right to travel and free speech and freedom of press rights;

(4) Facial overbreadth.

Memorandum in Support of Motion to Intervene and to Quash Grand Jury Subpoena, p. 1.

On December 16, 1985, the Government filed its opposition to movant's motion for injunctive relief. The Government argues that the injunction is not issuable because the movant has another adequate remedy at law,² the movant lacks standing to request the relief prayed for³ and the letter accompanying the subpoena is proper. On December 17, 1985, the Government filed its motion in opposition to the motion to intervene and to quash the grand jury subpoena. The Government argues the following: 1) petitioner lacks standing to intervene and quash the grand jury subpoena; 2) the grand jury subpoena was issued under proper authority; and 3) Viajes Antillas is a proper party with standing and willing to comply with the subpoena. On December 27, 1985, the movant filed his reply.

On December 27, 1985, the movant also filed a motion for protective order (I) and memorandum in support thereof asking this Court to prohibit the Government from providing the information obtained from Viajes Antillas to any prosecuting authorities participating in the case of United States v. Gerena, et al. That same day, movant also filed a motion for protective order (II) and memorandum in support thereof, requesting the Court to order the Government to communicate with every person who received the letter and explain to them that he or she has no obligation of secrecy under the federal law.

On December 30, 1985, Elias Castro Ramos also filed a motion to intervene and to quash the grand jury subpoena. He adopted the arguments raised by movant Hilton Fernández Diamante. Elias Castro Ramos is a co-defendant in the case of United States v. Gerena, et al.

This Court held a hearing on January 3, 1986, on Fernández Diamante's motion to intervene and to quash the grand jury subpoena and his motion for injunctive relief.

This Court is of the opinion that both the subpoena and the language of the letter were proper under law.⁴ We explain.

It is a well established rule that "calling a grand jury investigation for the sole or dominating reason of gathering information to be used in the trial of a pending indictment is an abuse." In re Maury Santiago, 533 F.2d 727 (1st Cir.1976). It is also well established that "once a defendant has been indicted, a prosecutor may not use the grand jury's investigative powers for the purpose of securing additional evidence against the defendant for use in the upcoming trial." In Re Grand Jury Proceedings (Johanson), 632 F.2d 1033, 1041 (3rd Cir.1980); see, United States v. Woods, 544 F.2d 242, 249 (6th Cir.1976); United States v. Fisher, 455 F.2d 1101, 1104-05 (2nd Cir.1972); United States v. Star, 470 F.2d 1214, 1217 (9th Cir.1972). However, "a good faith inquiry into other charges within the scope of the grand jury's lawful authority is not prohibited even if it uncovers further evidence against an indicted person." (emphasis ours) In Re Grand Jury Proceedings (Johanson), 632 F.2d at 1041; see, United States v. (Under Seal), 714 F.2d 347, 350 (4th Cir. 1983); United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979); United States v. Beasley, 550 F.2d 261 (5th Cir.1977); United States v. Sellaro, 514 F.2d 114, 122 (8th Cir.1973). As stated in United States v. Doe, 455 F.2d 1270, 1273 (1st Cir.1972), citing Professor Moore, "It is improper to use the grand jury for the purpose of preparing an already pending indictment for trial. But the courts have generally held that where another purpose is predominant the fact that the government may derive incidental benefit from a grand jury proceeding does not preclude its use."

In his motion to quash the subpoena, the movant argues that the real purpose of the grand jury subpoena directed at Viajes Antillas is to prepare the government's case in Hartford. In support of this, the movant relies on the fact that 1) Assistant U.S. Attorney Moreno participated in the Hartford case; 2) the question of international travel is extensively wooven into the Hartford indictment and the bail hearings,⁵ and 3) the possibility that the Government's investigation is incomplete. As part of its response, the Government filed a sealed affidavit affirming that the grand jury investigation seeks the documents in aid of another investigation.⁶ After reading this affidavit this Court finds no evidence of an improper purpose and rejects the need for imaging one. The grand jury seeks the documents in connection with another investigation involving other charges of crimes allegedly committed in this district. This is entirely a proper purpose. See, In Re Grand Jury Proceedings (Johanson), supra. The fact that the Government may derive incidental benefits from a grand jury proceeding does not preclude its use in another trial. United States v. Doe, supra.

Because the grand jury seeks the documents in connection with another investigation involving other charges of crimes allegedly committed in this district, we conclude that Hilton Fernández Diamante's indictment and Elias Castro Ramos's indictment are not a bar to enforcement of the subpoena. If an unlawful purpose in seeking enforcement of the subpoena is shown, this Court will not hesitate to fashion an appropriate remedy. However, when the predominant and only purpose is to investigate other charges, the issuance of the indictment against Fernández Diamante and Castro Ramos does not prevent the enforcement of the subpoena issued to Viajes Antillas.

With regard to the letter, no obligation of secrecy may be imposed upon grand jury witnesses under F.R.Cr.P. 6(e).⁷ In re Vescovo Special Grand Jury, 473 F.Supp. 1335 (C.D.Cal.1979). However, the Government's letter requesting that the subpoena not be disclosed was appropriate. The court, in In re Vescovo Special Grand Jury, Id., considered a similar letter served upon a bank which the court summarized as follows:

that the custodian of the records was not to

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