Rhode Island Grand Jury Subpoena, Matter of

• Decision Date: 08 January 1993
• Citation: 414 Mass. 104,605 N.E.2d 840
• Parties: In the Matter of a RHODE ISLAND GRAND JURY SUBPOENA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 840

605 N.E.2d 840

414 Mass. 104

In the Matter of a RHODE ISLAND GRAND JURY SUBPOENA.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Oct. 8, 1992.

Decided Jan. 8, 1993.

John K. Markey, Boston (Michael F. Connolly and Richard W. Rose, with him), for John Doe.

J. Richard Ratcliffe, Asst. Atty. Gen. of R.I. (Walter Gorman, Deputy Atty. Gen. and Robert Carr, Sp. Asst. Atty. Gen., with him), for the State of R.I.

Pamela L. Hunt, Asst. Atty. Gen., for the Atty. Gen. of the Com., intervener.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and GREANEY, JJ.

LIACOS, Chief Justice.

This case arose out of a Rhode Island grand jury investigation of public engineering and architectural contracts in that State. On April 10, 1992, a grand jury in Rhode Island authorized the issuance of a subpoena duces tecum to Thomas Bates, an accountant residing in Massachusetts. The subpoena directed Bates to produce the financial records of a John Doe, a Rhode Island resident and a target of the investigation. On the same day, a judge of the Rhode Island Superior Court issued a certificate pursuant to the Uniform Act to Secure the Attendance of Witnesses, stating that Bates is a material and necessary witness in the grand jury investigation. See R.I.Gen.Laws tit. 12, c. 16, §§ 1-13. The judge granted Bates immunity from arrest and service of criminal or civil process while in Rhode Island to appear before the grand jury; he also provided for the reimbursement of all expenses which Bates might incur in connection with the production of the subpoenaed documents. ¹

On April 21, 1992, Rhode Island prosecutors sent the subpoena to the office of the district attorney for the Northern District (Middlesex County) in Massachusetts. Personnel of this office had Bates served with the subpoena. Bates agreed to deliver all the requested documents to a representative of the Rhode Island grand jury. On May 16, 1992, Bates notified John Doe of the subpoena. Two days later, John Doe's counsel conducted a limited review of the documents pursuant to an agreement with the Rhode Island prosecutors. This review gave rise to a dispute as to the scope of the subpoena. Doe's counsel took the position that the subpoena covered only documents related to business entities in which Doe had a current interest. He claimed that only three of the documents which he had reviewed qualified as such. The Rhode Island prosecutors objected to this interpretation of the subpoena, whereupon the parties agreed to deliver the documents to Bates' attorney until resolution of the dispute. ²

On May 19, 1992, the Rhode Island grand jury authorized the issuance of another subpoena directed to Bates. This new subpoena expanded the scope of the original one. It adopted the interpretation of the first subpoena which the Rhode Island prosecutors had advocated and aimed at ensuring that the grand jury would receive all necessary documents to conduct its investigation. On the same day, another judge of the Rhode Island Superior Court issued another certificate stating that Bates is a material and necessary witness in the grand jury proceeding. The judge also granted Bates the same protection against service of process and payment of expenses as Bates enjoyed under the first certificate. On the following day, Bates was served with the new subpoena and certificate.

Bates restated his willingness to deliver the subpoenaed documents to a representative of the Rhode Island grand jury. Doe, however, continued to object. On May 22, 1992, Doe filed a motion to quash the subpoena with the Massachusetts Superior Court. The motion judge heard arguments on the same day. On May 26, 1992, he issued an order directing Bates to comply with the Rhode Island subpoena. The next day, Doe filed a motion to stay this order pending appeal, together with a motion to report questions of law pursuant to Mass.R.Crim.P. 34, 378 Mass. 905 (1979). On June 1, 1992, the motion judge denied both motions. Doe petitioned a single justice of the Appeals Court and, on June 5, 1992, the single justice stayed the execution of the order directing Bates to comply with the Rhode Island subpoena. On September 3, 1992, we granted Rhode Island's application for direct appellate review.

On appeal, Doe argues that the motion judge did not follow the procedures set forth in the Uniform Law to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings (Uniform Act), G.L. c. 233, §§ 13A-13D (1990 ed.). ³ Specifically, Doe contends that the motion judge, rather than fulfilling his statutory duty to determine independently that Bates is a material and necessary witness in the Rhode Island investigation, merely "rubber-stamped" the conclusions set forth in the Rhode Island judicial certificate. The Rhode Island prosecutors dispute this contention. They assert that the motion judge did inquire into the materiality issue in the course of the hearing below. In any event, they argue, it was within the motion judge's discretion to find that Bates is a material and necessary witness on the sole basis of the conclusions contained in the certificate of the Rhode Island judge. The Massachusetts Attorney General, as an intervener, supports this argument.

At the outset, we must decide whether Doe has standing to appeal from the denial of his motion to quash. We have ruled recently that such orders are interlocutory and nonappealable. Matter of a Grand Jury Subpoena, 411 Mass. 489, 492, 583 N.E.2d 241 (1992). Like the present case, Matter of a Grand Jury Subpoena involved an accounting firm and its client. A grand jury issued a subpoena directing the accountant to produce documents which its client claimed to be privileged. Both the accountant and the client unsuccessfully had moved a Superior Court judge to quash the subpoena. We held that, in order to obtain appellate review of the subpeona, the accountant had to disobey it. A contempt order would then issue, from which the accountant could appeal. Id. at 492-493, 583 N.E.2d 241. See Commonwealth v. Winer, 380 Mass. 934, 935, 404 N.E.2d 654 (1980), and cases cited. As to the accountant's corporate client, we held that it had no standing to intervene. The client's opportunity to challenge the subpoena, we explained, would arise if and when the grand jury investigation issued an indictment and a criminal prosecution ensued. Matter of a Grand Jury Subpoena, supra 411 Mass. at 496, 583 N.E.2d 241. See Cronin v. Strayer, 392 Mass. 525, 528, 467 N.E.2d 143 (1984); Borman v. Borman, 378 Mass. 775, 781-782, 393 N.E.2d 847 (1979).

Our holding in Matter of a Grand Jury Subpoena, supra, was motivated in part by the need to eliminate unwarranted delay of the investigative process. Id. 411 Mass. at 497, 583 N.E.2d 241. Persons under investigation, we noted, often bring motions to quash subpoenas for the sole purpose of hindering grand jury inquiries. Allowing appeals from the denial of these motions offers an incentive to challenge a judge's order regardless of the actual merits of the case. Id. Win or lose, an appellant has managed to gain time during which "the targets are free, memories of other witnesses are fading, evidence is disappearing ... and events may escape scrutiny as the statute of limitations takes its toll." Id., quoting Matter of Klein, 776 F.2d 628, 631 (7th Cir.1985). Requiring a custodian of documents to incur contempt as a prerequisite to appellate review, on the other hand, increases the likelihood that only colorable claims will be appealed at the investigative stage of criminal cases. ⁴ Matter of a Grand Jury Subpoena, supra 411 Mass. at 496, 583 N.E.2d 241.

The present case illustrates the very kind of undue hindrance of the investigative process which we sought to preclude in Matter of a Grand Jury Subpoena, supra. The Rhode Island subpoena was directed not at John Doe but at his accountant, who never objected to delivering the relevant documents. John Doe's invocation of appellate review at this early stage of the investigative process has delayed the release of the subpoenaed documents. The Rhode Island grand jury has been waiting for the documents for over six months. By the time its term expires on January 21, 1993, the grand jury may not have had a single opportunity to examine the documents necessary for its investigation of possible illegalities in the awarding of State contracts.

John Doe, nonetheless, claims that his is a special case which warrants the relaxation of the procedures for challenging a subpoena which we set forth in Matter of a Grand Jury Subpoena. To support this contention, Doe first argues that the Rhode Island subpoena covers tax returns that are privileged under State and Federal law. Even assuming that Doe's arguments have merit, Doe cannot raise privilege claims in this State. Under the Uniform Act, such claims are "a matter for the requesting jurisdiction to rule on and are not appropriately addressed to the state court issuing the subpoena." Tracy v. Superior Court, 168 Ariz. 23, 43, 810 P.2d 1030 (1991), citing In re Cal. Grand Jury Investigation, 57 Md.App. 804, 812, 471 A.2d 1141, cert. denied sub nom. Rees v. Los Angeles County, 467 U.S. 1205, 104 S.Ct. 2388, 81 L.Ed.2d 346 (1984). See In re Pitman, 26 Misc.2d 332, 333, 201 N.Y.S.2d 1000 (1960). Holding otherwise would unnecessarily duplicate judicial determination of privilege claims. ⁵

Next, Doe argues that he comes within the exception to the general rule of nonappealability of interlocutory orders that the United States Supreme Court created in Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918). In that case, a company partly owned by Perlman had submitted documents to a Federal court during a patent lawsuit. After the dismissal of the suit, the United States Attorney investigated Perlman for perjury. A subpoena was issued to the court clerk, directing him to produce for the grand jury some of the documents that...