United States v. Klubock

• Decision Date: 28 February 1986
• Docket Number: Civ. A. No. 85-4809-Z.
• Citation: 639 F. Supp. 117
• Parties: UNITED STATES of America; William F. Weld, as he is United States Attorney for the District of Massachusetts; Craig C. Donsanto, as he is Director of the Election Crimes Branch, Criminal Division, Department of Justice; and Albert S. Dabrowski, as he is Assistant United States Attorney for the District of Connecticut, Plaintiffs, v. Daniel KLUBOCK, as he is Bar Counsel for the Board of Bar Overseers of the Supreme Judicial Court of Massachusetts; and Charles S. Cohen, Charles B. Swartwood III, Sandra L. Lynch, Curtis Prout, Beverly W. Boorstein, William H. Welch, Paul R. Sugarman, Thomas F. Maffei, Elaine M. Epstein, Margaret Dever and Neil Houston, as they are members of the Board of Bar Overseers of the Supreme Judicial Court of Massachusetts, Defendants, v. MASSACHUSETTS BAR ASSOCIATION, Boston Bar Association and Massachusetts Association of Criminal Defense Lawyers, Defendant-Intervenors.
• Court: U.S. District Court — District of Massachusetts

639 F. Supp. 117

UNITED STATES of America; William F. Weld, as he is United States Attorney for the District of Massachusetts; Craig C. Donsanto, as he is Director of the Election Crimes Branch, Criminal Division, Department of Justice; and Albert S. Dabrowski, as he is Assistant United States Attorney for the District of Connecticut, Plaintiffs, v. Daniel KLUBOCK, as he is Bar Counsel for the Board of Bar Overseers of the Supreme Judicial Court of Massachusetts; and Charles S. Cohen, Charles B. Swartwood III, Sandra L. Lynch, Curtis Prout, Beverly W. Boorstein, William H. Welch, Paul R. Sugarman, Thomas F. Maffei, Elaine M. Epstein, Margaret Dever and Neil Houston, as they are members of the Board of Bar Overseers of the Supreme Judicial Court of Massachusetts, Defendants, v. MASSACHUSETTS BAR ASSOCIATION, Boston Bar Association and Massachusetts Association of Criminal Defense Lawyers, Defendant-Intervenors.

Civ. A. No. 85-4809-Z.

United States District Court, D. Massachusetts.

February 28, 1986.

William F. Weld, U.S. Atty., Marth B. Sosman, Asst. U.S. Atty., Boston, Mass., for U.S.

Matthew Feinberg, Segal, Moran & Feinberg, Richard W. Renehan, Michael S. Greco, David A. Hoffman, Hill & Barlow, Max Stern, Stern & Shapiro, Jean Baker, Silverglate, Gertner, Baker, Fine & Good, Boston, Mass., for defendants.

MEMORANDUM OF DECISION

ZOBEL, District Judge.

On October 1, 1985 the Supreme Judicial Court of Massachusetts promulgated an ethical rule, Supreme Judicial Court Rule 3:08 Prosecution Function 15 ("PF 15"), to take effect on January 1, 1986. The rule provides:

It is unprofessional conduct for a prosecutor to subpoena an attorney to a grand jury without prior judicial approval in circumstances where the prosecutor seeks to compel the attorney/witness to provide evidence concerning a person who is represented by the attorney/witness.

Plaintiffs, who are members of the Massachusetts Bar and federal prosecutors,¹ brought this action seeking both a declaratory judgment that the rule is invalid as applied to them and an injunction against its enforcement. Defendants are the members of the Board of Bar Overseers of the Supreme Judicial Court of Massachusetts and Bar Counsel for the Board, the individuals charged with enforcing the Canons of Ethics and all disciplinary rules promulgated by the Supreme Judicial Court ("SJC"). In addition, the Massachusetts Bar Association, the Boston Bar Association, and the Massachusetts Association of Criminal Defense Lawyers were permitted to intervene as defendants.²

This court held a hearing on plaintiffs' motion for a preliminary injunction, but all parties have since agreed that the court might, on the basis of the arguments and submissions there presented, proceed directly to final judgment. I accordingly do so.

Plaintiffs assert that PF 15 violates the Supremacy Clause, U.S. Const., art. VI, cl. 2 and Fed.R.Crim.P. 57. The central issue underlying that assertion is their contention that PF 15 is inconsistent with Rule 17 of the Federal Rules of Criminal Procedure. A preliminary question concerns whether PF 15 has been incorporated by Local Rule 5(d)(4)(B) for the District of Massachusetts³ and is therefore now a rule of this court. Whatever the resolution of that question, however, the ultimate issue remains the same: does PF 15 conflict with federal law? For the reasons set forth below, I hold that it does not.

Part I of this opinion discusses whether the district courts' supervisory power over grand jury proceedings includes the authority to perform the initial review that PF 15 requires. Part II-A addresses plaintiffs' claims under Fed.R.Crim.P. 57, which prohibits district courts from adopting local rules inconsistent with the Federal Rules. Part II-B answers plaintiffs' constitutional arguments.

I. Supervisory Power⁴

"A supervisory duty, not only exists, but is imposed upon the court, to see that its grand jury and its process are not abused, or used for purposes of oppression and injustice." In re National Window Glass Workers, 287 F. 219, 225 (N.D.Ohio 1922). This oft-cited phrase expresses a principle that is fully recognized in our system of criminal justice. Although the investigative power of a grand jury is necessarily broad,⁵ it is not unlimited; it is subject to the supervision of a judge. Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972); United States v. Calandra, 414 U.S. 338, 346, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974).

The scope of the court's supervisory duty is well documented. The court, of course, must excuse from testifying those who are protected by a constitutional, common law, or statutory privilege. Beyond that, Fed. R.Crim.P. 17(c) explicitly authorizes the court to quash a subpoena duces tecum if it is "unreasonable and oppressive." But, as one court has pointed out, "the District Court's supervisory power over the grand jury is not limited to granting relief from unreasonable and oppressive grand jury process. Rather, it extends ... to granting relief from any type of grand jury abuse." Robert Hawthorne, Inc. v. Director of Internal Revenue, 406 F.Supp. 1098 (E.D. Penn.1976).

It has thus been held that it is within the court's supervisory power to protect against such grand jury abuses as undue harassment, Branzburg, 408 U.S. at 707-08, 92 S.Ct. at 2669-70, impeding a defense attorney's ability to prepare an effective defense for his or her client, In re Grand Jury Matters, 751 F.2d 13 (1st Cir.1984); see also In re Grand Jury Subpoena (Legal Services Center), 615 F.Supp. 958 (D.Mass.1985), post-indictment attempts to gather evidence, In re Grand Jury Subpoena Duces Tecum, dated January 2, 1985 (Simels), 767 F.2d 26 (S.D.N.Y.1985), and unnecessary interference with the attorney-client relationship, In re Special Grand Jury No. 81-1 (Harvey), 676 F.2d 1005, vacated, 697 F.2d 112 (en banc) (when defendant became fugitive) (4th Cir.1982); In re Terkeltoub, 256 F.Supp. 683 (S.D.N. Y.1966) (district court had power to refuse to compel nonprivileged attorney-client secrets).

In In re Pantojas, 628 F.2d 701 (1st Cir.1980), the Court of Appeals for the First Circuit explicitly acknowledged the power of the district courts incident to their general supervision over grand juries:

The practical responsibility for controlling grand jury excesses lies with the district court, on which the grand jury must rely for subpoena and contempt procedures....

District courts should ... feel free to require ... preliminary showings by the government as a means of assuring themselves that grand juries are not overreaching, or simply as a means of removing the issue of sufficiency of nexus from dispute.

Id. at 705.⁶

The courts' supervisory power over federal grand juries may not, of course, be exercised arbitrarily. As the Court of Appeals for this Circuit recently stated:

judges may not arbitrarily interfere with the grand jury's right to every man's evidence. Judges may not, in the guise of exercising supervisory power, create new privileges or enlarge or distort existing ones.

In re Grand Jury Matters, 751 F.2d at 18.

The question which must therefore be asked here is on which side of the discretionary line falls the review PF 15 requires of district court judges. PF 15's only explicit requirement is one of "prior judicial approval" of a narrowly defined class of subpoenas before they can be served. PF 15 does not prohibit the issuance of such subpoenas, thereby creating a new privilege or expanding an existing one. It does not create a new right to judicial review. Nor does it create new substantive grounds for quashing subpoenas.⁷ In sum, PF 15 does nothing more than require an additional review, at an earlier stage in the process than that provided by Fed.R.Crim.P. 17(c).⁸ It thus falls well within the ambit of a district court's supervisory power.

II. The Conflict with Federal Law

Rule 17 of the Federal Rules of Criminal Procedure provides in pertinent part:

(a) For Attendance of Witnesses; Form; Issuance. A subpoena shall be issued by the clerk under the seal of the court. It shall state the name of the court and the title, if any, of the proceeding, and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. The clerk shall issue a subpoena, signed and sealed but otherwise in blank to a party requesting it, who shall fill in the blanks before it is served. A subpoena shall be issued by a United States magistrate in a proceeding before him, but it need not be under the seal of the court....

(c) For Production and Documentary Evidence and of Objects. A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive....

(f) For Taking Deposition; ...

(1) Issuance. An order to take a deposition authorizes the issuance by the clerk of the court for the district in which the deposition is to be taken of subpoenas for the persons named or described therein.

Plaintiffs' argument that PF 15 conflicts with Rule 17 is two-fold. First, they allege that PF 15 is inconsistent with the letter and spirit of the rule itself. Second, plaintiffs assert that PF 15 is "incompatible with federal practice respecting grand jury subpoenas," or, put differently, that PF 15 impedes the policies relative to federal grand juries implemented by Rule 17.

Plaintiffs' attack on PF 15 varies depending on whether this court determines that the ethical rule is incorporated by reference in Local Rule 5(d)(4)(B). If it is incorporated, they rely on Fed.R.Crim.P. 57 as the basis of their challenge; if it is not, they rely exclusively on the Supremacy Clause. Because resolution of that issue has no bearing on the outcome of this case, however, and because it is properly reserved for...