a Special Investigation No. 258, In re

• Decision Date: 10 June 1983
• Docket Number: No. 1408,1408
• Citation: 461 A.2d 34,55 Md.App. 119
• Parties: In re A SPECIAL INVESTIGATION NO. 258.
• Court: Court of Special Appeals of Maryland

Page 119

55 Md.App. 119

461 A.2d 34

In re A SPECIAL INVESTIGATION NO. 258.

No. 1408.

Court of Special Appeals of Maryland.

June 10, 1983.

M. Albert Figinski, Baltimore, with whom were Arnold M. Weiner and Gregg L. Bernstein, Baltimore, on brief, for appellants.

Dale P. Kelberman, Asst. Atty. Gen., with whom was Stephen H. Sachs, Atty. Gen., on brief, for appellee.

Argued before LOWE and ALPERT, JJ., and FREDERICK A. THAYER, III, Specially Assigned Judge.

LOWE, Judge.

When the Attorney General of Maryland is authorized by the Governor or the Legislature to investigate criminal conduct and prosecute, pursuant to his restricted constitutional authority to do so (Md. Const. Art. V, § 3) it follows that he may attend, assist and participate with a grand jury conducting a correlative investigation. Maloney v. State, 17 Md.App. 609, 304 A.2d 260 (1973). Because of his expertise, the Attorney General's advice undoubtedly causes his influence to be preemptive of the direction an investigation may take by such a grand jury. The plenary authority of the grand jury is customarily utilized in such cases, just as it is equally influenced by a State's attorney in more mundane criminal investigations and prosecutions.

Prosecutors have in Maryland traditionally relied upon the grand jury's right to issue subpoenaes as an auxiliary to expedite their investigations, and the relationship of grand jury and prosecutor has become investigatively intertwined. See, e.g., In Re: Special Investigation No. 244, --- Md. ---, 459 A.2d 1111 (1983); In Re: A Special Investigation No. 224, 54 Md.App. 137, 458 A.2d 454 (1983). This cooperative effort of exchanging investigative expertise for subpoena power, etc., is obliged by the Legislature's having declined to provide the Attorney General with any comparable criminal subpoena power. We pointed out in St. Comm'n on Human Rel. v. Balto. Co., 46 Md.App. 45, 46-48, 415 A.2d 856 (1980), the irony of the Legislature's continual denial of that "awesome" intrusive right to the Attorney General for criminal investigations, while granting it helter-skelter to administrative agencies and governmental adjuncts for every conceivable purpose, including for civil purpose, the Division of Consumer Protection of the Office of the Attorney General. Md.Com.Law Code Ann. § 13-405.

But that, nonetheless is, and was, the status of the subpoena right for criminal investigations when the Grand Jury of Baltimore City issued a subpoena duces tecum to the Sequoia Savings & Loan Assoc., Inc., on September 20, 1982 for the production of the records of the accounts of individuals who, and companies which, are the appellants in this appeal. The subpoena was signed by the foreman of the Grand Jury issuing it, and an addendum suggested that any questions relating to it might be directed to a designated assistant attorney general, who we assume was the assigned advisor to that Grand Jury.

Financial institutions such as Sequoia are generally prohibited from disclosing their customers' records, Md.Fin.Inst.Code Ann., § 1-302, but the prohibition is subject to certain exceptions, one of which is upon issuance "on lawful authority" of a subpoena. § 1-304. The "lawfulness" of a subpoena (releasing the institution from disclosure prohibition) appears to include service upon the customer as well as the institution, however, customer service may be "waived by the court for good cause". Waiver was provided in this case upon such finding.

Appellants, however, appear to have had their own sources of information if not of "notice" since they moved propitiously to quash the subpoena. After a prolonged hearing which took diverse tangents, the Criminal Court of Baltimore granted the State's Motion Ne Recipiatur to the appellants' motion to quash on the ground that appellants had "no standing to so move."

Although we are unable to see how the court could act further upon a motion which it ruled it would not receive, it further ordered nonetheless, that the motion to quash--which it had refused to receive--was also to be denied

"based on this Court's finding that the Attorney General is properly authorized to conduct the investigation and the matter was properly presented to the Grand Jury."

Having thus once beaten an already dead horse by denying what it had refused to receive, it again went on (unnecessarily) to limit by its order the disclosure of the subpoenaed documents to representatives of the Criminal Investigation Division of the Attorney General's office "and no other person, agency or division of the Attorney General's office."

Apparently the court did not consider the two latter exercises as futile (despite the fact that those peripheral issues were obliterated when the motion upon which they were predicated in argument was declined) because they formed part of the basis for appellants' argument that they had standing to attack the subpoena.

Ironically, these peripheral issues are the primary point of focus in the arguments on appeal obfuscating the very clear answer to so much of appellants' question as they are entitled to ask. That question is:

"Did the lower court err when it denied standing to appellants to challenge the Attorney General's authorization to conduct an investigation into Appellants' activities; more particularly, was reversible error committed when the lower court denied standing to Appellants to challenge the Attorney General's authority to use the grand jury process to investigate Appellants?"

Even if the trial court had been wrong in holding that appellants had no standing to move to quash the subpoena of the grand jury, we fail to see how a motion to quash the grand jury's subpoena can give rise to a right to challenge the Attorney General's role as adviser to that Grand Jury. But we need not reach that question to decide this case because we hold that the court was correct in holding that the appellants, as the bank's customers, had no standing to attack the subpoena to the bank.

Absent an improper and unnecessary harassment, we know of no constitutional right of one under grand jury investigation to obstruct, or even to impede, that investigation by inquiring into its procedural propriety which traditionally is (as nearly as possible) a jealously guarded secret. In Re: A Special Investigation No. 224, supra. Few, if any, constitutional rights are available to an accused until it becomes apparent that he is the known focus of the investigation and "the suspect has been taken into police custody ...." Escobedo v. Illinois, 378 U.S. 478, 491, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977 (1964). Escobedo extended the Fifth and Sixth Amendment rights to silence and counsel that far, but other rights, such as the right to a speedy trial do not commence even then. Gee v. State, --- Md.App. ---, 459 A.2d 608 (1983).

A Fourth Amendment search and seizure right obviously can accrue to a suspect not in custody, prior to such "focus", but we pointed out in In Re: A Special Investigation No. 242, 53 Md.App. 360, 452 A.2d 1319 (1982), that, based upon the holding in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), a suspect bank customer has no Fourth Amendment interest to protect when a subpoena is issued to the bank, even though the records sought are those of the customer.

Appellants reluctantly acknowledge that under Miller they possess no Fourth Amendment interest that could be vindicated by a challenge to the subpoena. So thwarted, they seek standing from Maryland's statute that restricts disclosure of such records by the financial institutions, presumably contending that even absent a constitutionally protected right of privacy, they are provided here a comparable statutory right or protectable interest under § 1-302, which they contend provides them with standing. Section 1-302 states that:

"Except as otherwise expressly provided in this subtitle, a fiduciary institution, its officers, employees, agents, and directors may not disclose to any person any financial record relating to a customer of the institution unless the customer has authorized the disclosure to that person."

If that statute appears to appellants to give them sufficient interest to provide standing, it is by its language a very limited interest. Assuming (but certainly not deciding) that § 1-302 was intended as a statutory reinstatement of an interest comparable to the Fourth Amendment one denied by Miller that could be vindicated by a challenge to the subpoena, the Act itself gives back to the bank immunity to disclose in compliance with a subpoena. Thus, to that extent, appellants are deprived by the exception in the statute of the privacy interest they claim accrued to them under that statute. Section 1-304(b) explains that:

"A fiduciary institution may disclose financial records in compliance with a subpoena, if the subpoena is served on the fiduciary institution and, unless waived by the court for good cause, on the customer."

Subsection (a) of that section provides a definition of a subpoena,

"In this section, 'subpoena' means a subpoena, summons, warrant, or court order...