In re Stolar
| Decision Date | 08 July 1975 |
| Docket Number | Misc. No. 11-118. |
| Citation | 397 F. Supp. 520 |
| Parties | In re Grand Jury Subpoena of Martin R. STOLAR. |
| Court | U.S. District Court — Southern District of New York |
Paul J. Curran, U. S. Atty., S.D.N.Y., by Lawrence B. Pedowitz, Asst. U. S. Atty., New York City, for United States.
James Reif, Brooklyn, N. Y., Martin R. Stolar, Stolar, Alterman & Gulielmetti, New York City, for Stolar and Shepherd.
Association of Legal Aid Attorneys, Center for Constitutional Rights, National Conference of Black Lawyers, National Emergency Civil Liberties Committee, National Lawyers Guild, New York Civil Liberties Union, and Puerto Rican Legal Defense and Education Fund, Inc., amici curiae in Support of Motion to Quash.
This is an application to quash a grand jury subpoena directed to Martin R. Stolar, an attorney Execution of the subpoena has been stayed pending the Court's disposition of the motion.
By and large, the facts are not in dispute. On December 20, 1974 a magistrate's warrant was issued for the arrest of one Colette Ali on a charge of unlawful flight to avoid prosecution in violation of 18 U.S.C. § 1073. One William Sheperd was believed to have information concerning Ali's whereabouts. Accordingly, the Federal Bureau of Investigation (FBI) began making efforts to question Sheperd. On April 11, 1975, Sheperd, having learned that the FBI was seeking to interview him, telephoned Martin Stolar, an attorney, and requested legal advice. An appointment was made by the attorney for Sheperd to meet with him on the afternoon of April 14, 1975. Having learned of the attorney's involvement, on the morning of April 14th an FBI agent called Stolar, and indicated that he wanted to question his client, Sheperd. He did not disclose the questions he wanted to ask Sheperd, but he did reveal that he was investigating the whereabouts of Colette Ali. During their discussion on the afternoon of April 14, 1975 Sheperd and Stolar decided that Sheperd could and would decline to speak to the FBI. On April 16, 1975 the agent again called Stolar who informed him of that decision. The agent then asked for Sheperd's address and the attorney refused to provide him with that information. Stolar's uncontroverted affidavit in support of the application alleges that at that point the agent stated that he would have him subpoenaed in order to get the information. The following day, April 17, 1975, the agent called the attorney again seeking the same information. An offer made by the attorney to arrange a meeting between the agent and Sheperd was refused as insufficient. On April 24, 1975 Stolar was served by the agent with a subpoena requiring his appearance before a grand jury on the following morning. The information sought from Stolar is Sheperd's telephone number and his home and employment addresses.
Stolar has moved1 to quash the the grand jury subpoena on the grounds, inter alia,2 that it constitutes an abuse of the grand jury process and that in any event the information sought is protected by the attorney-client privilege. The government contests both assertions.
With regard to the charge of abuse of the grand jury process the movant contends that the primary purpose of the subpoena here is to aid the Federal Bureau of Investigation in its efforts to apprehend Colette Ali. The movant argues that this is beyond the lawful functions of a federal grand jury. At the oral argument of this motion the government appears to have conceded that it sought to question Sheperd in order to obtain information helpful to the FBI in its attempt to apprehend a fugitive.
There is no question but that a grand jury has the right and the duty to search out, examine and weigh whatever evidence there may be in connection with a suspected crime. In order to fulfill its primary function of returning indictments against individuals believed to have committed serious crimes the powers of the grand jury must necessarily be exceedingly broad. Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). It may properly investigate on the basis of tips, rumors, hearsay, speculation or any other source of information. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). It has been noted that a grand jury's task "is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed." United States v. Stone, 429 F.2d 138, 140 (2d Cir. 1970). Nevertheless, it must be remembered that the grand jury is endowed with these expansive powers so that it may "inquire into the existence of possible criminal conduct and . . . return only well-founded indictments." Branzburg, supra, 408 U.S. at 688, 92 S.Ct. at 2660. Indeed, there are matters into which a grand jury may not inquire simply because they fall outside the area of its proper functions. Clearly, for example, a grand jury may not be empanelled nor its process used solely to inquire into a strictly civil matter. See United States v. Doe, 341 F.Supp. 1350 (S.D.N. Y.1972) (Frankel, J.). And even when the grand jury is generally acting within its normal limits care must be taken to ensure that its historic functions are not subverted nor its powers abused. For instance, the Second Circuit Court of Appeals has recently reaffirmed the principle that a grand jury may not be used "for the sole purpose of preparing an already pending indictment for trial." United States v. Del Toro, 513 F.2d 656, 664 (2d Cir. 1975). It has also been recognized that the grand jury process may not be used by a federal prosecutor solely to conduct his own investigation. Durbin v. United States, 94 U.S.App.D.C. 415, 221 F.2d 520, 522 (1954). With these general principles there can be little dispute, but, as always, it is their application which gives rise to litigation.
In this case an attorney has been subpoenaed in order that he might be questioned regarding the whereabouts of his client so that, in turn, the client could then be interrogated as to the whereabouts of a person suspected of having violated federal law. The government apparently was not satisfied with the proposal made by the attorney that he would make his client available for questioning by the FBI. Instead, the government chose to compel the attorney's appearance before the grand jury to obtain the information it sought. Under these circumstances, the Court believes that this constitutes an abuse of the grand jury process.
A grand jury, of course, may inquire into "the whereabouts of unlocated witnesses." Hoffman v. United States, 341 U.S. 479, 488, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). However, here the sought-after witness, Sheperd, cannot, in fact, be said to be "unlocated." The attorney has offered to make him available and the government has not even attempted to explain why this arrangement is not satisfactory. There is a basis to conclude, as movant asserts, that Sheperd's telephone number and addresses are needed not for purposes of the grand jury investigation as such but merely so that this data can be turned over to the FBI for whatever purposes that agency chooses to use it. It has been claimed — without contradiction — that the FBI agent in this case informed the attorney that he needed the information in question "as background information" for his "investigative file." It would appear then, that the grand jury subpoena is being used not in aid of its proper functions but rather as an adjunct or tool of an FBI investigation. In this Court's view, such a procedure is impermissible. Congress has not chosen to vest the FBI with subpoena powers and it would circumvent that legislative judgment for the FBI to be allowed to instead simply make use of the grand jury process in order to do indirectly what it may not do directly. Just as the grand jury is not meant to be "the private tool of the prosecutor", United States v. Fisher, 455 F.2d 1101, 1105 (2d Cir. 1972), it should not be allowed to become an arm of the FBI.
Further, Stolar claims that the information sought is protected by the attorney-client privilege.
It is settled that the attorney-client privilege may be raised in response to a grand jury subpoena. However, it is not as clear whether a client's address and telephone number fall within the ambit of the privilege. It is settled that an attorney must disclose the identity of the client. In Colton v. United States, 306 F.2d 633, 637 (2d Cir. 1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963), the Court noted that "the identity of a client, or the fact that a given individual has become a client are matters which an attorney normally may not refuse to disclose, even though the fact of having retained counsel may be used as evidence against the client." The basis...
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...within the Justice Department. See, e. g., United States v. Universal Mfg. Co., 525 F.2d 808 (8th Cir. 1975);57cf. In re Stolar, 397 F.Supp. 520, 522-23 (S.D. N.Y.1975). In theory it may well be that a 6(e) order should be required for prophylactic purposes whenever any person or agency oth......
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Grand Jury Subpoenas Duces Tecum Served by Sussex County Grand Jury on Farber, Matter of
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