In re Jury

Citation35 V.I. 516
Decision Date09 January 1997
Docket NumberNos. 96–7529 and 96–7530,No. 95–7354,95–7354,s. 96–7529 and 96–7530
PartiesIn re GRAND JURY.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

OPINION TEXT STARTS HERE

Father of target of grand jury investigation moved to quash subpoena requiring him to testify against his son, asserting parent-child privilege. The District Court of the Virgin Islands, St. Croix, Raymond L. Finch, J., denied motion. Father appealed. In separate case, daughter of target of another grand jury investigation moved to quash subpoena requiring her to testify against father, also asserting parent-child privilege. The United States District Court for the District of Delaware, Sue L. Robinson, J., denied motion. Daughter, mother, and father appealed. Considering appeals together, the Court of Appeals, Garth, Circuit Judge, held, as a matter of first impression, that it would not recognize new parent-child privilege.

Affirmed.

Mansmann, Circuit Judge, concurred and dissented and filed opinion. Gordon C. Rhea (Argued), Alkon, Rhea & Hart, Christiansted, St. Croix, VI, for Appellant in No. 95–7354.

James A. Hurd, Jr., Azekah E. Jennings, Office of United States Attorney, Christiansted, St. Croix, VI, David S. Kris (Argued), United States Department of Justice, Criminal Division, Washington, DC, for Appellee in No. 95-7354.

Charles M. Oberly, III, Kathleen M. Jennings, Oberly, Jennings & Drexler, Wilmington, DE, Bartholomew J. Dalton (Argued), Brandt & Dalton, Wilmington, DE, for Appellant John Doe 1 in No. 96–7529. .

George H. Seitz, III (Argued), Pricket, Jones, Elliott, Kristol & Schnee, Wilmington, DE, for Appellant John Doe 2, as Parent and Guardian of the Minor Child, and the Minor Child in No. 96–7529.

Gregory M. Sleet, United States Attorney, Colm F. Connolly (Argued), Assistant U.S. Attorney, Wilmington, DE, for Appellee in Nos. 96–7529, 96–7530.

BEFORE: MANSMANN, SAROKIN,*GREENBERG and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge:

Three appeals presenting the same critical issue are before us. One appeal originated in the District Court of the Virgin Islands at docket number 95–7354. The other two appeals pertaining to the same Delaware defendant originated in the District Court of Delaware at docket numbers 96–7529 and 96–7530.1

We scheduled oral argument in all three appeals on the same day inasmuch as they raised the same question—should this court recognize a parent-child privilege? The Delaware appeals also challenge the adequacy of a Schofield affidavit and charge that the in camera ex parte proceeding permitted by the district court constituted a deprivation of due process. We answer the questions presented by holding that a parent-child privilege should not be recognized, and we affirm the district court's rulings which rejected the appellants' objections to the Schofield affidavit and in camera ex parte proceeding.

I.

The facts and procedure of the Virgin Islands case giving rise to one appeal, and of the Delaware case giving rise to two appeals, will be stated separately. 2

Docket Number 95–7354: In the Virgin Islands case, the grand jury sitting in St. Croix subpoenaed the father of the target of the grand jury investigation as a witness.3 The target of the grand jury proceeding was the son of the subpoenaed witness. The son became the target of a government investigation as a result of “certain transactions that [he] was allegedly involved in.” Tr. at 11. At the time of the alleged transactions, the son was eighteen years old.

The grand jury subpoenaed the target's father to testify on April 18, 1995. The father, a former FBI agent, lived with his wife and son in St. Croix. On April 17, 1995, based on his belief that the grand jury intended to question him about conversations that he had had with his son, the father moved to quash the subpoena, asserting that those conversations were privileged from disclosure under Fed.R.Evid. 501.

The father testified, at a hearing before the district court, that he and his son “ha[d] an excellent relationship, very close, very loving relationship.” Tr. at 4. He further testified that if he were coerced into testifying against his son, [their] relationship would dramatically change and the closeness that [they] have would end....” Id. at 5. The father further explained that the subpoena would impact negatively upon his relationship with his son:

I will be living under a cloud in which if my son comes to me or talks to me, I've got to be very careful what he says, what I allow him to say. I would have to stop him and say, “you can't talk to me about that. You've got to talk to your attorney.” It's no way for anybody to live in this country.

Id. at 6.

On June 19, 1995, the district court entered its order denying the father's motion to quash. On the same day, the district court granted the targeted son's motion to intervene and then stayed its order which denied the quashing of the father's subpoena pending any appeal. The court's memorandum opinion and order, although clearly sympathetic with the plight of the subpoenaed father, “regretfully decline[d] to recognize [a parent-child] privilege” because the Third Circuit had yet to address the issue and “every United States Court of Appeals that has confronted this question has declined to recognize the parent-child privilege.” In re Grand Jury Proceeding, Misc. No. 95–0009, at 14 (D.V.I. June 19, 1995). Appeal of the June 19, 1995 order was promptly taken by the targeted son on June 22, 1995.4

Docket Numbers 96–7529 & 96–7530: In the Delaware case, a sixteen year old minor daughter was subpoenaed to testify before the grand jury, as part of an investigation into her father's participation in an alleged interstate kidnapping of a woman who had disappeared. The daughter was scheduled to testify on September 10, 1996. However, on September 9, 1996, a motion to quash subpoena was made by counsel for the daughter and her mother, as well as by separate counsel for the father.5

The motion sought to bar the testimony of the daughter claiming a parent-child privilege which would cover testimony and confidential communications. [T]he privilege [was] claimed for confidential communications as well as for protection against being compelled to testify in a criminal proceeding”. Joint Motion to Quash Subpoena at ¶ 5.

The district court held a hearing during the morning of September 10, 1996; ordered further briefing due that afternoon;6 and issued a ruling in the late afternoon denying the motion to quash and ordering the minor daughter to testify before the grand jury that evening.

In the order, the district court reasoned that, because there is “no recognized familial privilege”, the appropriate process for determining whether to grant the motion to quash was “to weigh the competing interests of the parties in order to determine whether the anticipated testimony of the minor child is material and nonduplicative, thus tipping the scales toward requiring the testimony”. In re Grand Jury, 96–cv–51, at 1 (D.Del. September 10, 1996). The district court concluded that, based on the government's in camera ex parte proffer, “the government's interests in compelling the testimony outweigh the privacy interests asserted by the moving parties and denied the motion to quash on those grounds. See id. at 2.

Pursuant to the court order, the daughter appeared at court (in an ante-room to the grand jury courtroom) in the evening of September 10, 1995. She refused to testify and was found in contempt. The district court then stayed the imposition of sanctions during the pendency of these appeals. Appeal of the September 10, 1996 order was promptly made in joint motions by mother and daughter, and father on September 13, 1996.7

The district courts had jurisdiction over both the Virgin Islands case and Delaware case under 18 U.S.C. § 3231. We have jurisdiction over the appeals taken by the intervenors pursuant to 28 U.S.C. § 1291. See Perlman v. United States, 247 U.S. 7, 12–13, 38 S.Ct. 417, 419–20, 62 L.Ed. 950 (1918); In re Grand Jury Applicants (C. Schmidt & Sons, Inc.), 619 F.2d 1022, 1024 (3d Cir.1980). In addition, in the Delaware case, the daughter appealed on her own behalf after being cited for contempt, providing separate grounds for jurisdiction. See Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686 (1906); In re Grand Jury Applicants, 619 F.2d at 1024.

Our review as to all issues, is plenary.

II.

Because we find little merit in the arguments advanced in the Delaware case pertaining to the Schofield affidavit and the in camera proceeding before the district court, we will dispose of these two issues first and without substantial discussion. We then will turn to the more pressing issue of whether we should be the first federal Court of Appeals to recognize a parent-child privilege.

We have held that, when a subpoena for purposes of a grand jury proceeding is challenged, the government is “required to make some preliminary showing by affidavit that each item is at least relevant to an investigation being conducted by the grand jury and properly within its jurisdiction, and is not sought primarily for another purpose.” In re Grand Jury Proceedings, 486 F.2d 85, 93 (3d Cir.1973) ( Schofield I ); see also In re Grand Jury Proceedings, 507 F.2d 963, 966 (3d Cir.) ( Schofield II ) (identifying this burden of proof as a “three-pronged showing requirement”), cert. denied sub nom. Schofield v. United States, 421 U.S. 1015, 95 S.Ct. 2424, 44 L.Ed.2d 685 (1975). This requirement stems from the Schofield cases ( I and II ) where the targeted defendant had refused to furnish handwriting exemplars and had refused to allow her fingerprints and photograph to be taken. We have commonly referred to such an affidavit as a Schofield affidavit.8

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